P L D 1956 Lahore 528 (PLP)

KAIKAUS, J.‑This is an application for leave to appeal under clause 10 of the Letters Patent against my judgment in R. S. A. 190 of 1953. The suit out of which the appeal arose was one for the usual declaration that a gift of agricultural land by a female who had inherited the property under custom will not affect the reversionary rights of the plaintiff after the death of the alienor. The alienation was a gift made by one Mst. Lado who had inherited the property from her father, Gaman, Mughal by caste, of Radia Qadar Bux in Rawalpindi District, in favour of Lal, her sister's son. The suit was resisted inter alia on the ground that the parties were not governed in matters of alienation by custom. It was decreed by the trial Court and was dismissed on appeal by the learned District Judge, Rawalpindi on the ground that the parties were not governed by custom. On second appeal to the High Court, I held that the parties were so governed and decreed the suit. In this application for leave to appeal under the Letters Patent, learned counsel for the petitioners urges that the finding whether the parties were not governed by custom was not liable to challenge in second appeal, being a finding of fact. He has relied upon a judgment of Ortcheson, J. in Sh. Sartaj Alam and another v. Mst. Razia Begum and others (R S A No. 267 of 1952 (not approved for reporting)) which supports him. With all respect, for reasons which I will presently state, I do not agree with Ortcheson J. I may point out, however,, that the attention of Ortcheson J. was not drawn to Letters Patent Appeal No. 6 of 1949. Subedar Feroz Khan v. Ghulam Nabi, which deals directly with the same question. In that case Khurshid Zaman J. had held, sitting in Single Bench and following the same judgment Ilahi Bakhsh and another v. Rahim Bakhsh and others (A I R 1916 Lah. 97.) as has been relied upon by Ortcheson J., that the question whether the parties followed custom or personal law was not open to attack in second appeal. On Letters Patent Appeal, it was held that this view was not correct. I had appeared as counsel for the respondent in the Letters Patent Appeal and had conceded the point. The appeal had been accepted and the case remanded for decision on the merits. This judgment is binding upon us and further discussion of the point would ordinarily have been unnecessary. As however the judgment, on account of the concession, which I made as counsel, does not contain any discussion, I will state the reasons for my view. It is convenient to quote before I proceed the relevant provisions of law. They are: Section 100 Civil P. C.‑ "

100. Second appeal.‑(I) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordi nate to a High Court, on any of the following grounds, namely:‑ (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. (2) An appeal may lie under this section from an appellate decree passed ex‑parte." Section 41 of the Punjab Courts Act, 1918, as it stood before its amendment in 1941‑ "41. (1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:‑ (a) the decision being contrary to law or to some custom or usage having the force of law; (b) the decision having failed to determine some material issue of law or custom or usage having the force of law; (c) a substantial error or defect in the procedure provided by the Code of Civil Procedure, 1908, or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits, (2) An appeal may lie under this section from an appellate decree passed ex‑parte. (3) Notwithstanding anything in subsection (1) of this section, no appeal shall lie to the High Court from a decree passed in appeal by any Court subordinate to the High Court regarding the validity or the existence of any custom or usage unless the Judge of the Lower Appellate Court has certified that the custom or usage is of sufficient importance, and that the evidence regarding it is so conflicting or uncer tain that there is such substantial doubt regarding its validity or existence as to justify such appeal: Provided that an application under subsection (3) of this section shall not be received after the expiration of thirty days from the date on which the decree of the Lower Appel late Court was passed, unless the applicant satisfied the Judge that he had sufficient cause for not presenting it within that period: Provided also that in computing the period for an appeal under subsection (1) of this section the time during which the application under this subsection has been pending shall be excluded." Section 41 of the Punjab Courts Act, 1918, as it stands now‑ "41. (1) An appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on any of the following grounds, namely:‑ (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue ‑of law or custom or usage having the force of law; (c) a substantial error or defect in the procedure provided by the Code of Civil Procedure. 1908, or by any other law for the time being in force which may possibly have pro duced error or defect in the decision of the case upon the merits. Explanation.‑A question relating to the existence or validity of a custom or usage shall be deemed to be a ques tion of law within the meaning of this section. (2) An appeal may lie under this section from an appellate decree passed ex‑parte." "

5. Decisions in certain cases to be according to Native law.‑In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be‑ (a) Any custom applicable to the parties concerned, which is not contrary to justice, equity. or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority; (b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to." It will be observed that under section 41 of the Punjab Courts Act, as it stands at present, a question relating to the existence or validity of a custom is a question of law. It will not be difficult to show that in second appeal the appellate Court is entitled to go into the whole of the material on the record, which a finding as to the existence or validity of a custom could be based. If it could be shown further that either the question of applicability of custom is identical with the existence of validity of a custom or it is relevant to the existence of a custom, the question would fall within the explanation of section 41 of the Punjab Courts Act. What is the meaning of the finding that the parties are governed by custom or Customary Law? I have deliberately added the words "or Customary Law" because a finding that the parties are governed by custom may simply mean that in the particular matter which is under consideration, the parties are not governed‑by their personal law but by a custom, while this is not the meaning to which learned counsel for the peti tioners is referring. He is simply referring to a finding that the parties are governed by 'Customary Law' by which expres sion he means the general agricultural custom of the Province. That also is the sense in which the finding that parties are governed by custom has been understood in the judgment of Ortcheson J. The discussion, therefore, will be confined only to this interpretation of the phrase. When we say that the parties are governed by Customary Law, all that we mean is that a set of customs exists among the B parties. There are in the Punjab agricultural communities who have adopted certain customs which closely resemble each other and when we say that the parties are governed by Customary Law, we simply make a reference to the existence among the parties of these agricultural customs. I may make it clear that there is a serious dispute as to whether any 'Cus tomary Law' exists in the Province at all. Abundant authority can be found for the proposition that there is no such thing as general custom' in the Punjab and that the custom allegea1r must be proved in each case as a fact and not by reference to any general custom. I will revert to this matter when I con sider the effect of the amendment of 1941 to section 41 of the Punjab Courts Act. For the present I will assume that there is in existence a set of customs which may be called Customary Law. As I have stated above, this finding implies only the exis tence of a number of customs. Can it be said that just because existence of more customs than one is in dispute, the question is not one relating to the existence or validity of a custom within the meaning of section 41 of the Punjab Courts Act? I do not see how it can be said to be a different question or why the legislature, when it made the existence of a custom a question of law, intended to exclude the question as to the applicability or existence of a set of customs from the purview of section 41 of the Punjab Courts Act. Even authority is not lacking on this point. In a large number of cases decided under section 41 of the Punjab Courts Act as it stood before its amendment in 1941 the question as to the applicability of custom had been regarded as a question relating to the exis tence of a custom. According to the un-amended section, a question relating to the existence or validity of a custom could not be agitated unless a certificate from the appellate Court was produced, stating that the custom was of importance and that evidence with respect to the custom was doubtful and uncertain. It will appear from reported cases that whenever a party wanted to raise a question as to the applicability of custom in second appeal, he was prevented from doing so unless he had obtained a certificate. In Tulsi Ram and others v. Amar Singh (A I R 1917 Lah. 74.), the district judge had found that in matters of alienation of ancestral property the parties were governed by custom and not by Hindu Law. On appeal to the Chief Court when it was urged that the parties were governed by Hindu Law and not by custom, Shah Din J. held that the question was one of the existence or validity of a custom and its agitation was barred by the provisions of section 41 (3) of the Punjab Courts Act in the absence of a certificate. In Sawan Singh v. Mothu and others (A I R 1914 Lah. 328.) which is a Division Bench judgment, the head note runs‑ "The question as to the applicability of agricultural custom to a particular person is a question regarding the existence of a custom." In Rasul Khan and others v. Mst. Hawasi and others (A I R 1923 Lah. 284) Martineau, J. held that the District judge's finding that the parties were governed by Muhammadan Law and not by custom could not be challenged in the absence of a certificate. Bashu Ram and another v. Piara Chand (A I R 1924 Lah. 365,) is a Division Bench judg ment by Martineau and Mori Sagar JJ. In that case the District judge had said in his judgment:‑ "I have held that parties are bound by Hindu Law. Peti tioner's contention is that they are bound by custom. The evidence is conflicting and difficult. The question effects the whole village and is thus important. I accordingly grant a certificate under section 41 of the Punjab Courts Act." It was held that this order itself amounted to a certificate and that the question as to whether the parties were bound by personal law or custom could be agitated. For other authori ties on the point, I may refer to, 1 Lahore 544, 39 P L R 773 and A I R 1937 Lahore

560. Let me repeat that the only finding for attacking which a certificate was required under section 41 of the Punjab Courts Act, was the existence or validity of a custom. In all the above‑mentioned cases it was held that a certificate was required for tile purpose of raising a' plea that the parties are governed by custom and the two,, questions therefore were regarded as identical. Assuming for a moment that the two questions are not identical it cannot be denied that the question as to whether the parties are governed by custom or personal law is only a question subsidiary to the main question as to the existence of a particular custom. It will be clear from a perusal of section 5 of the Punjab Laws Act, 1872 that whoever comes to Court, alleging that he is not governed by personal law, has to plead a particular custom. The rights of the parties, in accordance with section 5 of the aforesaid Act, are to be decided in respect of the matters enumerated therein according to the personal law unless a custom' is proved. Therefore, Courts are, in all such cases, concerned directly only with the existence of the particular custom that is alleged, and the question whether a party is governed by general rules of agricultural custom is relevant only because a finding on this question will help the Court in determining whether the particular custom, on which a party relies, does or does not exist. Apart from its being a part of the material on which the finding as to the existence of a custom is to be based, the question as to whether a party follows custom or personal law has no relevancy. But even if it was relevant for any other purpose, the fact that this question is relevant for the purpose of determining the existence of a custom, is sufficient to make a finding on it liable to be challenged under section 41 of the Punjab Courts Act. When the existence of custom is to be determined the Court can scrutinize the whole of the evidence which is relevant for the finding. This will be apparent from the fact that under section 41 of the Punjab Courts Act as it stood before the amendment of 1941, the whole of the evidence as to custom could be gone into by the High Court if a certificate was produced. The certificate was to be granted only if the evidence as to custom was conflicting and there was a doubt as to its existence. The certificate itself mentioned the fact that it was being granted because the evidence was conflicting and uncertain. As an authority for the proposition that when a certificate was granted all evidence in respect of matters dealing with custom could be gone into by the High Court, I may refer to A I R 1937 Lah. 449; A I R 1939 Lah. 366; AIR 1936 Lah. 660; A I R 1929 Lah. 426; A I R 1936 Lah. 920 and I R 1937 Lah,

564. If before the amendment, under section 41 of the Punjab Courts Act, the evidence could be gone into on the production of a certificate, it is obvious that it can now be gone into without the production of a certificate. The section has remained unchanged except with regard to the production of a certificate. Previously, the existence or validity of a custom could be challenged only by the produc tion of a certificate and now it can be challenged without a certificate. It was not the intention of the legislature, while amending section 41 of the Punjab Courts Act in 1941, to curtail the right of the appellant. It will appear from the Select Committee's Report itself which is relied upon by Ortcheson J. (I do not accept that it can be relied upon) that the intention of the amendment was to enlarge the existing right of appeal so as not to keep the Punjab litigant at a disadvantage. If the whole of the evidence can be gone into then the finding that parties are governed by custom or personal law can also to attacked for the party that wants to attack the finding does so only in order to prove or disprove the custom alleged. The Court is concerned only with the existence of a custom and determines the applicability of custom or personal law only in order to decide the existence of the custom alleged. In the case relied upon by the learned counsel for the petitioners, Ortcheson J. has relied upon two arguments. The first is that by the use of the words "a custom," in the explanation given after clause (c) of subsection (1) of section 41 of the Punjab Courts Act, the legislature intended only to make the existence of a special custom liable to be challenged and not the question whether the parties followed general custom or personal law. The second reason given is that, the intention of the amendment in 1941 was to place the Punjab litigants on a par with those of other Provinces of India, and under the law of the rest of India as embodied in section 100 Civil P. C. this finding was not liable to be challenged. I will take up these arguments one by one. As regards the first argument, I have already pointed out that it is only by proving the existence of `a custom' that a party can take up a plea in derogation of personal law. Under section 5 of the Punjab Laws Act, 1872, a party who wants to avail of the customary rule, must plead 'a custom' and in the absence of proof of a custom modifying the per sonal law the parties' rights must be decided according to personal law. If as I have shown above, while challenging a finding as to existence of custom all subsidiary findings were liable to be challenged, it was not at all necessary to make a particular reference to a finding as to the applicability of general custom as one which could also be challenged. At the same time we should not suppose that the Provincial legis lature was accepting the position that there was some such thing as general custom or the customary law of the Province. As early as 1893, Sir, Meredyth Plowden had to observe in Ralla and others v. Budha and others (50 P R 1893 F B), that there was strictly speak ing no such thing as a general custom in the Punjab. In Gohra and others v. Hari Ram and others (115 P. R. 1907) Rattigan, J. the author of the well known digest of Customary Law, said (p. 530) "So far as we know there is no such thing in existence nor indeed could there be any such thing as a body of general customary law." This view was expressed in a large number of cases and it was held as a consequence that custom must in each case be proved as a fact and not by reference to books on custom. I may refer to Rattigan's Digest page 71 (1938 Edition) where there are a number of quotations from judg ments in support of the view that there is no such thing as general custom. This view gained special strength in the decade which begins in 1931 and ends with Subhani's case (3). It is only when in Mst. Subhani and others v. Nawab and others (1941 P C 21) their Lordships of the Privy Council stated that Rattigan's Digest was a book of unquestioned authority and that onus could be regulated by it that books on Customary Law began to be referred to in proof of the alleged custom. The amendment, however, of the Punjab Courts Act took place at a time when it had been regarded almost established that no general agricultural custom existed in the Punjab. From this point of view also there was no reason for any reference to a finding as to the applicability or for otherwise of the custom in section 41 of the Punjab Courts Act. With respect to the second argument let me explain that the interpretation, which had been put in other Provinces in India on section 100 Civil P. C., is obviously inconsistent with that which had been placed upon it by the legislature which enacted section 41 of the Punjab Courts Act. The accepted position in other Provinces is that whereas the data on which the inference as to custom is to be based, are questions of fact, the inference itself is a question of law. The Courts cannot, in other Provinces, go into those facts which are proved by evidence. I may quote in this connection Municipal Board Benars v. Kandhaiva Lal and others (A I R 1931 All. 499) a Full Bench judgment wherein it was laid down. "A finding as to the existence or non‑existence of a custom in so far as it is a finding that a certain practice does or does not prevail, is a finding of fact. The question whether a prevailing practice has the essential attributes of a legally binding custom is a question of law." There are a large number of authorities on the point. I may refer to A I R 1942 Cal. 26; A I R 1942 Oudh 401; A I R 1934 All. 890 and A I R 1933 Mad.

390. This, however, is not the position so far as the Punjab is concerned. I have already shown that under section 41 of the Punjab Courts Act as it existed before the amendment of 1941 the whole of the evidence could be gone into on the production of a certificate and now the only effect of the amendment is that the certificate has been eliminated. Even Ortcheson J. does not say that so far as the existence of a 'special custom' is concerned, the evidence could not be gone into, so that we cannot, in any case, be in line with other Provinces in this matter. In support of the argument that by the amendment of 1941 the intention was to bring the law in conformity with other Provinces, Ortcheson J. has referred to the Report of the Select Committee to whom the amending bill was referred. In the first place, as pointed out by their Lordships of the Privy Council in The Administrator Gneral v. Premlai Mullick (1 L R 22 Cal. 788) we cannot look at the report of the Select Committee while interpreting the Act. Secondly, th le report can only show that according to the opinion of the Select Committee even in other Provinces evidence as to custom could be scrutinized. As I have shown above there can be no doubt that this interpretation of section 100 Civil P. C. is different from that adopted in other Provinces, It may also be observed that the old subsection (3) of section 41 of the Punjab Courts Act begins with the words "Not withstanding anything in subsection (1) , . . , . " It is clear, therefore, that had subsection (3) not existed, subsection (1) of section 41 of the Act, as it is interpreted by the Provincial legislature, would have entitled a party to challenge a finding as to the existence of a custom so as to enable the Court to go into the whole of the evidence on the record, The words of subsection (1) of section 41 of the Punjab Courts Act are the same as those of section 100 Civil P. C. When interpreting therefore section 41 of the Punjab Courts Act, we ought to exclude from consideration cases from other Provinces, Ortcheson J. has relied on 11ahi Bakhsh and another v. Rahim Bakhsh and others (AIR 1916 Lah.97) a case which I have already stated had been relied upon by Khurshid Zaman J. in the Letters Patent Appeal referred to above. As I read A I R 1916 Lah. 97, it goes against the contention of the petitioners in this case. That judgment states that the question whether the parties were governed by custom or by personal law is one which could not be agitated without a certificate. It recognizes, therefore, that with a certificate such a finding could be challenged which, means obviously that such a finding is one as to the existence or validity of a custom. There is a Privy Council judgment relied upon in A I R 1916 Lab. 97, that is 31 All. 557, wherein their Lordships of the Privy Council have held that a finding as to the existence of custom is a finding of fact. Their Lordships should be understood as referring to the mere existence of practice and not to any inference from proved facts as to whether a practice has acquired the force of law. This is apparent from K. P. S, L. Palaniappa Chetty and another v Sreemath Devasika money Pandara Sannadhi (AIR1917 PC 33) wherein their Lordships say that questions of existence of ancient customs are mixed questions of law and of fact. Let me here point out that in all the judgments of their Lordship` of the Privy Council which have been relied upon in support of the proposition that a finding as to custom is a question of fact their Lordships were not considering section 100 Civil P. C. or section 41 of the 'Punjab Courts Act. Apart from these provisions the existence of a practice, is question of fact though not the inference from such practice. Even the question as to whether a reference in section 100 Civil P. C., to custom or usage, entitles a party to take the appellate Court through the evidence also, was not a matter to be decided in any case before their Lordships but had that matter been decided, that would have no effect on section 41 of the Punjab Courts Act, if we reach the conclusion that according to that section the whole of the evidence can be gone into for deciding the existence of custom. I do not agree that the question as to the applicability of custom could not be gone into and I may point out that this point was not argued before me at the hearing of the appeal. However, as the petitioner has got a judgment in his favour I grant leave to appeal under the Letters Patent. A. H. Petition granted.