Thakur Gokalchand vs Parvin Kumari

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 158 of 1951

Decision Date: 16 May, 1952

Coram: Saiyid Fazal Ali, Vivian Bose

In this matter the Supreme Court of India rendered its judgment on 16 May 1952. The case was reported as Thakur Gokalchand v. Parvin Kumari and the author of the judgment was Justice Saiyid Fazal Ali. The bench that heard the suit comprised Justices Saiyid Fazal Ali, Vivian Bose and another member of the court. The petitioner was Thakur Gokalchand and the respondent was Parvin Kumari. The citation for the decision is 1952 AIR 231 and 1952 SCR 825, with later citator references R 1971 SC 1398 (6) and RF 1991 SC 1654 (15, 35). The issue concerned the application of Punjab custom to a dispute over succession. The plaintiff, a Rajput resident of Tehsil Garhshankar in the District of Hoshiarpur, instituted a suit seeking recovery of property that had formerly belonged to a deceased Gurkha woman identified as “R”. The property had been acquired by R as a gift from an unknown stranger, and she held it in her own right. The plaintiff alleged that he was the lawful husband of R and, according to the custom applicable to the parties, he was entitled to succeed to both movable and immovable property of R ahead of the defendant, who was his daughter by R. The Court observed that even assuming a lawful marriage, the pivotal question was whether succession to property that R owned independently, having received it as a gift, should be governed by the custom of her husband’s family rather than her own. The Court held that the alleged marriage was a rare occurrence and the rule of succession set out by the plaintiff could not be said to have acquired the force of law through long usage. Consequently, the plaintiff was not entitled to succeed to the property.

The Court then set out several general principles to be considered when dealing with questions of customary law. First, it recognized that many agricultural tribes in the Punjab are regulated by a variety of customs that differ from the ordinary rules of Hindu and Muhammadan law, particularly with respect to inheritance and other matters mentioned in section 5 of the Punjab Laws Act, 1872. Second, the Court emphasized that there is no presumption that any particular person or class of persons is governed by custom; a party alleged to be subject to customary law must prove that he is so governed and must also prove the existence of the specific custom claimed. The Court cited Daya Ram v. Sohel Singh and Others, 110 P R. (1906) 390 at 410, and Abdul Hussein Khan v. Bibi Song Dero, L.R. 45 I.A. 10, in support of this proposition. Third, the Court explained that for a custom to be binding it must have derived its force from long-standing usage that has become accepted as law; however, the English rule that a custom must have been used “so long that the memory of man runneth not” to the contrary should not be applied rigidly in Indian conditions. The essential requirement is that the usage has been acted upon for a sufficient period with such invariability that it is accepted by the community as the governing rule of the locality.

The Court observed that the English principle which requires a custom to have been so ancient that “the memory of man runs not to the contrary” should not be applied rigidly to Indian circumstances. The essential requirement, the Court explained, is merely to demonstrate that the practice in question has been adhered to for a sufficiently long period and with such uniformity that it can be shown, by common consent, to have become the established rule of governance in the locality concerned. The Court cited the decision in Mt. Subhani v. Nawab, A.I.R. 1941 P.C. 21 at page 32, to illustrate this point. It further held that evidence of a custom may be established by general testimony from members of the tribe or the family who are naturally aware of the custom’s existence and its regular exercise, provided that such testimony is not contested. Such testimonial evidence gains additional reliability when it is supported by a public record of custom, for example a Riwaj-i-am or a Manual of Customary Law, as noted in the case of Abroad Khan v. Mt. Channi Bibi, A.I.R. 1925 P.C. 267 at page 271. The Court also clarified that no statutory presumption attaches to the contents of a Riwaj-i-am or any similar compilation. Nevertheless, because such a record is prepared by a public officer acting under governmental rules, the statements contained therein in support of a custom are admissible to prove the facts referred to, and are generally regarded as strong evidence of the custom’s existence. The Court cautioned, however, that entries in a Riwaj-i-am may be shown to be erroneous, and the amount of evidence required to rebut them will vary according to the circumstances of each case. The presumption of correctness attached to a Riwaj-i-am may be overcome if it is demonstrated that the record adversely affects the rights of women or any other class of persons who had no opportunity to appear before the revenue authorities, citing Beg v. Allah Ditta, A.I.R. 1916 P.C. 129 at page 131; Saleh Mohammad v. Zawar Hussain, A.I.R. 1944 P.C. 18; and Mt. Subhani v. Nawab, A.I.R. 1941 P.C. 21 at page 25. When the applicability of a custom to an agriculturist is contested, the Court stated that a party denying the custom must show that the person claiming to be governed by it has wholly and permanently abandoned agriculture and agricultural associations, has settled permanently in an urban setting, and has adopted trade, service or another primary occupation as his main source of livelihood, thereby no longer following the customs applicable to agriculturists, referring to Muhammad Hayat Khan v. Sandhe Khan and Others, 55 P.R. (1906) 270 at page 274, and Muzaffar Muhammad v. Imam Din, I.L.R. (1928) 9 Lab. 120, 125. Finally, the Court explained that the opinions expressed by the compiler of a Riwaj-i-am or by a Settlement Officer, drawn from his intimate knowledge and investigation of the subject, are entitled to weight that varies with the facts of each case. The only safe rule, the Court concluded, is that if such opinions represent a personal view or bias that detracts from a long-standing custom, they are insufficient to displace that custom; however, if they arise from a proper inquiry into the scope of the custom and reflect the understandings of its exponents, they should be given due weight.

The Court observed that when the observations of a compiler arise from a thorough inquiry and investigation into the extent of the custom’s applicability, and also reflect any particular interpretation expressed by the custom’s practitioners, such observations must be accorded appropriate weight. The Court cited the authorities Narain Singh v. Basant Kaur, A.I.R. 1935 Lah. 419 at 421-422; Mr. Chinto v. Thelur, A.I.R. 1935 Lah. 985; and Khedam Hussain v. Mohammad Hussain, A.I.R. 1941 Lah. 73 at 79 in support of this principle. The matter before the Court was a civil appeal numbered 158 of 1951, filed under the Civil Appellate Jurisdiction. The appeal challenged the judgment and decree dated 24 March 1948 rendered by the High Court of Punjab at Simla, a decision delivered by Justices Teja Singh and Khosla. That High Court judgment itself had been an appeal from the decree dated 25 November 1944 of the Senior Subordinate Judge of Kangra at Dharmsala in Suit No. 86 of 1943. The appellant was represented by counsel Daryadatta Chawla, while the respondent was represented by counsel Gurbachan Singh, assisted by Jindra Lat. The appellate judgment was pronounced on 16 May 1952 by Justice Fazl Ali.

This appeal concerned a suit brought by the appellant seeking a declaration that he was the sole lawful heir of Musammat Ram Piari, whom he claimed to have been lawfully married to, and consequently entitled to the movable and immovable property left by her, together with a claim for possession of that property. The suit named two defendants: Parvin Kumari, alleged to be the plaintiff’s daughter by Ram Piari, and Shrimati Raj Kumari, who were instituted as defendants 1 and 2 respectively. According to the plaint, the appellant married Ram Piari, the daughter of an employee of Raj Kumari, about twenty-two years before filing the suit. After their marriage, Ram Piari lived with the appellant at Hoshiarpur and gave birth to a daughter, Parvin Kumari, on 4 March 1929. Ram Piari died in April 1941, leaving both movable and immovable assets that she had acquired in her own name with the appellant’s financial assistance, assets which were subsequently occupied by Raj Kumari. The appellant further alleged that he belonged to the Rajput caste of Tehsil Garhshankar in the district of Hoshiarpur and that his succession rights were governed by the customary law applicable to Rajputs of that district. Under that custom, he claimed that, as the husband of the deceased, he was the preferential heir to all property left by Ram Piari, to the exclusion of her daughter Parvin Kumari. Both defendants, Parvin Kumari and Raj Kumari, contested the suit, denying the existence of a marriage between the appellant and Ram Piari. They asserted that the properties in dispute had been purchased by Raj Kumari with her own funds for Ram Piari, who had intended to bequeath them to her daughter Parvin Kumari.

Raj Kumari contended that the properties in dispute had been bequeathed by Ram Piari to her daughter, Parvin Kumari, and she argued that the appellant was not subject to any customary law; furthermore, she asserted that even if a custom existed, it could not be applied to the personal and self-acquired assets of Ram Piari. Regarding the two automobiles that were also listed among the properties claimed in the plaint, Raj Kumari maintained that the vehicles belonged to her and that the deceased had been merely a benamidar, or nominal owner, of the cars. The trial court consequently decreed in favour of the plaintiff with respect to all the disputed properties except for the two automobiles, which the court held to remain the property of Raj Kumari. In reaching that decision, the trial court found that Ram Piari was the appellant’s legally married wife, that the appellant was governed by the customary law applicable to Rajputs of Hoshiarpur district in matters of succession, and that, under that customary law, the appellant was the preferential heir to Ram Piari’s estate. The trial court also declared that the will executed by Ram Piari was invalid because, according to the relevant custom, she possessed no authority to make a testamentary disposition. Both defendants appealed the trial court’s judgment to the High Court, and the appellate court ultimately allowed the appeal, dismissing the plaintiff’s suit. The High Court held that, although evidence showed long-term cohabitation between the plaintiff and Ram Piari, which gave rise to a presumption of marriage, that presumption was fully rebutted; consequently, the evidence on record failed to prove that Ram Piari had been the plaintiff’s lawfully wedded wife. Concerning the question of custom, the High Court made three specific findings: first, that the appellant belonged to an agricultural tribe of Hoshiarpur district and therefore was subject to the custom prevailing among the Rajputs of that district; second, that no local or general custom existed that would permit the plaintiff to succeed ahead of the daughter to property left by Ram Piari and subsequently transferred to her by a third party, namely Raj Kumari; and third, that the parties were governed by Hindu law, under which Parvin Kumari, as the daughter of Ram Piari, was entitled to inherit the properties left by her mother in preference to the plaintiff. After the High Court’s decision, the plaintiff obtained a certificate under sections 109 and 110 of the Code of Civil Procedure and filed the present appeal. The primary issue before this Court is whether the plaintiff has succeeded in establishing that Ram Piari was his lawfully wedded wife. The plaintiff admitted that he was employed as a copyist in the District Judge’s court at Hoshiarpur and that he resided in that town. He further asserted that he had become acquainted with Raj Kumari, the second defendant, a wealthy lady from Kangra district who owned a tea estate in the Palampur tehsil and who occasionally visited Hoshiarpur, and that, through her assistance, he was married to Ram Piari.

The plaintiff asserted that after his marriage to Ram Piari, who was the daughter of Chandar Bit, an employee of Raj Kumari’s tea estate, the couple lived together in Hoshiarpur and that Ram Piari was his lawfully wedded wife. The couple’s daughter, Parvin Kumari, also known as Usha Rani, was born on 4 March 1929. Raj Kumari was reportedly very attached to Ram Piari and frequently visited Hoshiarpur to meet her. According to the plaintiff’s version, during the year 1934-35—although the plaint does not state an exact date, the plaintiff’s evidence mentions that year—Raj Kumari took Ram Piari away from the plaintiff’s residence, carrying all of Ram Piari’s belongings, on the pretence of taking her out for recreation. The plaintiff claimed that Ram Piari was reluctant to leave with Raj Kumari, that she wished to return to the plaintiff, but lacked the courage to defy Raj Kumari, and that during the latter part of her life Ram Piari and Raj Kumari harbored mutual hostility. In 1941 Ram Piari died at Mayo Hospital in Lahore, leaving behind disputed properties that, according to the plaintiff, had been acquired through her own prudent management using the plaintiff’s funds. Raj Kumari presented a contrary narrative, contending that Ram Piari had been lured away by a motor driver around 1921, had remained away for about eleven years, and returned to the Holta estate with her three-year-old daughter Parvin Kumari. Raj Kumari maintained that after her return both Ram Piari and Parvin Kumari stayed with her until Ram Piari’s death in 1941. She further explained that, as a widow feeling lonely, she raised Ram Piari as a companion and that the disputed properties were purchased by Raj Kumari with her own money for the benefit of Ram Piari. Raj Kumari asserted that Parvin Kumari had been educated and reared at Raj Kumari’s expense, and denied any mutual hatred between Ram Piari and herself, stating instead that the two were attached and liked each other. To establish that Ram Piari was the plaintiff’s lawful wife, the plaintiff relied on a combination of witness testimonies and circumstantial evidence. Direct evidence of the marriage was presented by four witnesses: Babu Ram (PW 7), who claimed to be the family priest and to have officiated the marriage; Anant Ram (PW 11) and Asa Ram (PW 13), both Jaswal Rajputs residing in the nearby village of Bham; and a barber identified as Babu (PW 12). Each of these witnesses stated that they accompanied the marriage party and observed the ceremony of the plaintiff’s marriage to Ram Piari. Additional witnesses and circumstantial material supporting the plaintiff’s claim were summarized by the learned Subordinate Judge in the judgment.

The Court quoted a portion of the judgment stating that P.W. 5 Mukhi Ram served as Municipal Commissioner at Hoshiarpur, while P.W. 4 Doctor Shadi Lal was a leading medical practitioner in the same city. It further noted that P.W. 9 Lala Sham Lal and P.W. 10 Lala Har Narain were co-employees of the plaintiff in the same office; although these persons, except for P.W. 9, had no social relationship with the plaintiff or his family, they observed Ram Piari residing with the plaintiff as his wife. Both the local residents of the Mohalla and the broader brotherhood of the plaintiff’s village recognised and proclaimed Ram Piari as the plaintiff’s spouse, treating the couple as husband and wife. The Court referred to Exhibits P-18 and P-19, which demonstrated that Defendant No. 2 had addressed Ram Piari, care of the plaintiff, in 1932 and had received correspondence also care of the plaintiff, thereby indicating the defendant’s approval of the plaintiff’s relationship with Ram Piari. Additionally, Paras Ram, the younger brother of Ram Piari, lived in the house of Gokal Chand and is recorded as having addressed the plaintiff as “jija,” a customary term for a sister’s husband. From 1930 to 1934 Paras Ram attended D.A.V. High School at Hoshiarpur, and Exhibits P.W. 6/1 to 6 contain copies of school-register entries showing applications submitted by Gokal Chand, the plaintiff, for Paras Ram’s admission; in those entries Gokal Chand described Paras Ram as his “sala,” meaning brother-in-law. P.W. 6, Lala Bishan Das, a teacher, filed these copies, noting that his sister’s house stood adjacent to the plaintiff’s residence, which gave him occasions to see Ram Piari living and being treated as the plaintiff’s wife during those years. Based on this evidence, the trial court concluded that Ram Piari was the legally married wife of the appellant. The learned judges of the High Court, however, found the testimony of the four witnesses who claimed to have been present at the plaintiff’s marriage to be unconvincing, observing that a marriage performed with great pomp would normally be corroborated by more than four witnesses, especially when one appeared to be a hired witness and the remaining three were interested parties. The present Court concurs with the High Court’s view regarding the credibility of those four witnesses. Nevertheless, the testimony of the other witnesses undeniably establishes that the plaintiff and Ram Piari cohabited for several years as husband and wife, that Paras Ram addressed the plaintiff as “jija,” and that the plaintiff acted as Paras Ram’s guardian when the latter was admitted to D.A.V. School.

The Court observed that the school register entries recorded the plaintiff as being described as the brother-in-law of Ram Piari in several places. The learned Judges of the High Court had held that the testimony of certain witnesses, whose statements had been relied upon by the lower court, did not satisfy the requirements of section 50 of the Indian Evidence Act. The High Court reasoned that those witnesses lacked any special means of knowledge concerning the relationship between the plaintiff and Ram Piari, and that section 50 required not merely an opinion but an opinion expressed through the conduct of persons who, as members of the family or otherwise, possessed such special knowledge. The Court considered that the precise relevance of those witnesses under section 50 was largely academic, because it was well settled that a long period of continuous cohabitation could give rise to a presumption of marriage. In the present case, it was evident that the plaintiff and Ram Piari had lived together and had been treated as husband and wife for many years, and, absent any material indicating otherwise, a presumption of lawful marriage could have been drawn. However, the Court emphasized that such a presumption was rebuttable, and that any circumstances weakening or destroying the presumption could not be ignored. The Court agreed with the High Court that the necessary circumstances existed, and that, taken together, they led to the conclusion that the plaintiff had not proved that he was married to Ram Piari.

The Court further noted that the plaintiff had failed to examine any of his close relatives, such as his brother, other collaterals residing in Ajnoha, or any villagers whose attendance at the alleged marriage would have been far more probable than that of the witnesses he produced. He also did not examine any witnesses living in or around Holta estate, despite his claim that the marriage had been celebrated with great pomp and display. While the lower courts had suggested that Defendant No 2 was an influential person and therefore local witnesses might be unavailable to support the plaintiff’s case, the High Court had addressed that argument in detail. It pointed out first that Raj Kumari had been involved in litigation with many persons from Palampur, who therefore would not be under her influence, and second that no convincing reason had been shown why Raj Kumari, alleged to have facilitated the marriage between the plaintiff and Ram Piari, would adopt a wholly hostile attitude toward the plaintiff. Moreover, neither the parents nor any relatives of Ram Piari had been examined to support the plaintiff’s version. By contrast, Ram Piari’s mother, Ganga, had testified that her son had never been married to the plaintiff, and a statement made by Ram Piari in her will, a highly relevant piece of evidence, affirmed the same conclusion.

In the record, the will executed by Ram Piari was presented as a highly significant piece of evidence that supported the same conclusions reached by other testimony. The Court noted that it appeared implausible that, despite the affection which was said to have existed between Ram Piari and the plaintiff, she had abandoned him and taken residence with Raj Kumari, and that, during the extended period of her absence, the plaintiff had never visited her or made any inquiries concerning her or their alleged daughter, Parvin Kumari. The Court found this circumstance especially curious because the plaintiff asserted that Ram Piari had continued to love him and that Ram Piari and Raj Kumari harboured mutual hatred toward each other. In her own deposition, Parvin Kumari declared that she had never seen her father and that, upon reaching the age of discretion, she discovered that she was residing in Palampur. The Court observed that the plaintiff’s conduct, as revealed by his evidence, displayed a complete disregard for both his wife and his daughter, a conduct that the Court described as highly unnatural. Equally unnatural, the Court added, was the plaintiff’s decision to institute a suit aimed at depriving the woman of property that had come into her possession not as a result of any act of the plaintiff but because of the generosity of a stranger. The plaintiff contended that the disputed properties had been acquired by Ram Piari with the assistance of his own funds; the Court held that this claim was wholly unsupported by the facts and affirmed the findings of the lower courts that the properties had been acquired for her by Raj Kumari. The Court further observed that the plaintiff’s witnesses had attempted to exaggerate his financial resources in order to bolster his case, whereas the actual evidence indicated that the plaintiff possessed only a modest income derived from his employment as a court typist. Several witnesses, including an advocate and Ram Piari’s own mother, testified that Ram Piari had eloped with a driver and had remained absent from the Holta estate for many years. The Subordinate Judge had not rejected the elopement narrative, and although there was no reliable evidence establishing the precise time or manner in which Ram Piari might have met the plaintiff, the Court stated that it could not be definitively ruled out that she had lived with the plaintiff for a period of time despite the absence of a legal marriage. The plaintiff claimed to belong to a high-caste Rajput community, and the Court found it unusual that he had not married within his own tribe but instead had taken a Gurkha woman, born of very poor parents and originating from a location far removed from his own residence, as his wife. The Court also noted that Paras Ram had resided with the plaintiff for some time, addressed the plaintiff as “jija,” and that the plaintiff had described himself as the guardian and brother-in-law of Paras Ram; these facts were consistent with both the defence’s version and the plaintiff’s own statements. Finally, the Court remarked that had Paras Ram’s parents possessed sufficient wealth to maintain and educate him, the circumstances of the case might have been different, although evidence suggested otherwise.

The record demonstrates that Chandar Bir lived in extreme poverty, and that his wife and daughter were compelled to earn their livelihood by working as servants in the household of Raj Kumari. After considering the material before it, the Court observed that the High Court’s finding was not effectively challenged by the plaintiff. Even assuming that some facts might differ from those set out by the trial court, the Court felt bound to conclude that, on the basis of the evidence presently before it, the plaintiff had failed to prove that Ram Piari was his lawfully married wife. Consequently, the Court held that it was unnecessary to resolve the ancillary issue of whether the succession to the disputed properties should be determined according to customary law or Hindu law. Nevertheless, because the parties had extensively argued this point, the Court thought it appropriate to outline the positions taken by each side and to explain the difficulties that, in the Court’s view, arose when attempting to apply those positions to the evidence on record. Before proceeding to that discussion, the Court deemed it proper to set out briefly some general principles that should guide the analysis of questions concerning customary law.

The Court set out four principal rules. First, it recognised that many agricultural tribes in the Punjab are governed by a collection of customs that diverge from the standard rules of Hindu and Muhammadan law, particularly with respect to inheritance and other matters enumerated in section 5 of the Punjab Laws Act, 1872. Second, the Court stressed that there is no automatic presumption that any particular person or class of persons is subject to such customs; a party alleging that a custom governs a dispute must demonstrate both that the individual is indeed governed by that custom and that the custom itself exists, as illustrated in the authorities Daya Ram v. Sohel Singh and Others and Abdul Hussein Khan v. Bibi Song Dero C. Third, the Court explained that for a custom to be binding it must have acquired the force of law through long-standing usage, but the strict English maxim that a custom must have been observed “so long that the memory of man runneth not to the contrary” does not apply rigidly in Indian circumstances. It is sufficient to show that the usage has been practiced consistently over a considerable period and with such invariability that the community has accepted it as the established rule of the locality, as noted in Mr. Subhani v. Nawab. Fourth, the Court held that the existence of a custom may be proved by general testimony from members of the tribe or family who are naturally aware of the custom’s operation, and that such testimony gains additional credibility when it is corroborated by a public record of custom, such as a Riwaj-i-am or a Manual of Customary Law, as referred to in the decision Abroad Khan. These principles guided the Court’s subsequent analysis of the parties’ contentions.

There is no statutory presumption that the contents of a Riwaj-i-am or any similar compilation are automatically correct. Nevertheless, because such a document is a public record prepared by a public officer in the discharge of his duties under Government rules, the statements contained in it to support a claimed custom are admissible to prove the facts narrated therein and are generally regarded as strong evidence of that custom. However, the entries in the Riwaj-i-am may be shown to be incorrect, and the amount of evidence required to rebut them will vary according to the circumstances of each case. The presumption of correctness that ordinarily attaches to a Riwaj-i-am can be overcome if it is demonstrated that the record adversely affects the rights of females or any other class of persons who had no opportunity to appear before the revenue authorities. Authorities such as Beg v. Allah Ditta, Saleh, and the judgments reported in the Indian Appeals Reports and Law Reports illustrate this principle.

When the question of a custom applicable to an agriculturist is raised, the party who denies the application of that custom may be required to show that the person claiming to be governed by it has completely and permanently turned away from agriculture and agricultural associations, and has settled permanently in urban life, adopting trade, service or other occupations as his principal means of livelihood, thereby no longer following the customs applicable to agriculturists. This principle is reflected in decisions such as Muhammad Hayat Khan v. Sandhe Khan and Others and Muzaffar Muhammad v. Imam Din. The opinions expressed by the compiler of a Riwaj-i-am or by a Settlement Officer, based on his intimate knowledge and investigation of the subject, are entitled to weight that varies with the facts of each case. The safe rule is that if the compiler’s remarks represent personal opinion or bias and detract from the record of long-standing custom, they are insufficient to displace the custom; but if they arise from a diligent inquiry into the scope and special sense of the custom, such remarks should be given due weight, as noted in Narain Singh v. Mt. Basant Kaur, Mt. Chinto v. Thelur and Khedam Hussain v. Mohammad Hussain. Bearing these principles in mind, the difficulty that confronts the plaintiff’s case can be briefly stated. The plaintiff bases his claim on a “zamindara custom” that he alleges governs him by virtue of belonging to a family of agriculturists. However, the evidence indicates that he has sold most, if not all, of his property in the village to which he belonged; that his ancestors were bankers or sahukars; that his father worked as a clerk for a lawyer in Hoshiarpur district; and that he himself served as a clerk in the District Judge’s court at Hoshiarpur and resided there. There is little evidence to show that any of his relatives depended on agriculture or that he maintained any connection with them. In our opinion, the plaintiff’s witnesses have exaggerated his pecuniary means and have not presented an accurate picture on which the question of whether he remains governed by the old custom depends.

The plaintiff had apparently disposed of the majority of his lands in the village where he claimed to belong. He asserted that his ancestors had been bankers or sahukars, that his father had served as a clerk to a lawyer practicing in Hoshiarpur district, and that he himself had worked as a clerk in the District Judge’s court at Hoshiarpur and resided there. However, the record contained hardly any evidence that any of his relatives depended on agricultural work or that he maintained any substantial connection with them. In the Court’s view, the witnesses presented by the plaintiff had exaggerated his financial position to an unreasonable degree and had failed to provide an accurate picture that was necessary to determine whether the plaintiff could still be governed by the old custom. The Court noted that the plaintiff’s case was supported by several citations, including references to A.I.R. 1944 P.C. 18, A.I.R. 1935 Lab. 419 at 421-422, A.I.R. 1941 P.C. 21 at 25, A.I.R. 1985 Lah. 985, 55 P.R. (1906) 270 at 274, A.I.R. 1941 Lah. 73 at 79, and I.L.R. (1928) 9 Lah. 120, 125, which were considered but did not alter the factual assessment.

The Court then examined the relevance of the custom prevailing in Hoshiarpur district, known as the Riwaj-i-am, which generally stipulated that a marriage among Rajputs of that district was permissible only within the tribe. It observed that the plaintiff had not married a Rajput from his own district but a Gurkha woman, whose caste and character were subjects of conflicting evidence, and whose family was not subject to the same Riwaj-i-am that the plaintiff relied upon. The Court explained that if both spouses belonged to the same tribe and were governed by the same customary law, determining the rule of succession concerning the wife’s self-acquired property after her death would not present a substantial difficulty. Nonetheless, even assuming that the marriage between Ram Piari and the plaintiff was lawful, a pivotal question remained whether succession to the property that Ram Piari had received as a gift from a stranger and owned in her own right would be governed by the custom applicable to the husband’s family rather than her own. The Court emphasized that such a marriage was a rare occurrence and that the succession rule asserted by the plaintiff could not be said to have acquired legal force through long-standing usage. It reiterated that for a custom to be binding, it must have acquired the force of law through prolonged and consistent practice; if no occasion had ever arisen to apply the succession rule to property held independently by a wife, the essential foundation of the custom would be lacking. Finally, the Court observed that the plaintiff’s argument rested not only on custom but also, in part, on the Hindu law principle that the law governing the husband also governs the wife.

In this case, the Court observed that determining whether the latter rule, which the plaintiff had sought to rely upon, could be extended to the present facts presented a question of some difficulty. Consequently, the Court indicated that it would defer any opinion on the applicability of that rule until a later stage, as it was not prepared to pronounce on the matter at this time. The Court further noted that, in view of the surrounding circumstances, it preferred to leave the issue of custom unsettled rather than to resolve it in the present order. Instead, the judgment was founded on a single decisive ground, namely that the alleged marriage between the plaintiff and Ram Piari had not been clearly established by the evidence on record. Because that essential element of the plaintiff’s claim was lacking, the Court concluded that the appeal could not be sustained and therefore dismissed it. However, the Court also observed that the appellant had filed the appeal in forma pauperis, indicating that the party was unable to bear the costs of litigation. In light of that circumstance, the Court directed that each party should bear its own costs incurred in all the courts that had been involved in the proceedings. Accordingly, the appeal was dismissed and the order regarding costs was made final. The agents representing the parties were identified as S.D. Sekhri for the appellant and Naunit Lal for the respondent.