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PETITIONER: THAKUR GOKALCHAND

       Vs.

RESPONDENT: PARVIN KUMARI.

DATE OF JUDGMENT: 16/05/1952

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID BOSE, VIVIAN

CITATION:  1952 AIR  231            1952 SCR  825  CITATOR INFO :  R          1971 SC1398  (6)  RF         1991 SC1654  (15,35)

ACT:     Punjab custom--Principles to be observed in dealing with customary law stated--Essentials of valid custom.

HEADNOTE:     The plaintiff, a Rajput belonging to Tehsil  Garhshankar in  the District of Hoshiarpur (Punjab), instituted  a  suit against  the  defendant for the recovery of  the  properties which  belonged to a deceased Gurkha woman R and  which  she had  acquired by way     of gift from a  stranger,  alleging that he was the lawfully wedded husband of Rand that accord- ing  to custom which applied to the parties with  regard  to succession  he was entitled to succeed to the  moveable  and immoveable  properties of R in preference to  the  defendant who was his daughter by R. Held, that even if it be  assumed that  R was lawfully married to the plaintiff, the  question to be decided would be whether succession to property  which R had received as a gilt from a stranger and which she owned in  her own right would be governed by the custom  governing her  husband’s family and not her own. Such marriage as  was alleged  to  have  been contracted by  the  plaintiff  being evidently an act of rare occurrence, the rule of  succession set  up by the plaintiff cannot be said to derive its  force from  long  usage and the plaintiff was not, in  any  event, entitled to succeed. Their  Lordships laid down the general principles  which should be kept in view in dealing with questions of  custom- ary law as follows:     (1) It should be recognised that many of the agricultur- al  tribes in the Punjab are governed by a variety  of  cus- toms,  which  depart from the ordinary rules  of  Hindu  and Muhammadan  law, in regard to inheritance and other  matters mentioned in section 5 of the Punjab Laws Act, 1872.     (2) In spite of the above fact, there is no  presumption that a particular person or class of persons is governed  by custom, and a party who is alleged to be governed by custom- ary  law  must prove that he is so governed  and  must  also prove  the existence of the custom set up by him. (See  Daya Ram  v. Sohel Singh and Others, 110 P R. (1906) 390 at  410;

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Abdul Hussein Khan v. Bibi Song Dero, L.R. 45 I.A. 10).     (3)  A custom, in order to be binding, must  derive  its force  from the fact that by long usage it has obtained  the force of law, but the English rule that "a CUstOm, in  order that  it  may be legal and binding, must have been  used  so long  that  the memory of man runneth not to  the  contrary" should not be strictly 826 applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long  period and with such invariability as to show that  it has, by common consent, been submitted to as the established governing rule of a particular locality. (See Mt. Subhani v. Nawab, A.I.R. 1941 P.C. 21 at 32). (4)  A  custom may be proved by general evidence as  to  its existence by members of the tube or family who would  natur- ally be cognizant of its existence and its exercise  without controversy,  and such evidence may be safely acted on  when it  is   supported by a public record of custom such as  the Riwaj-i-am   or Manual of Customary Law. (See Abroad Khan v. Mt. Channi  Bibi, A.I.R. 1925P.C. 267 at 271). (5)  No statutory presumption attaches to the contents of  a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his  duties under   Government rules, the statements to be found therein in  support of custom are admissible to prove facts  recited therein  and   will generally be regarded as a strong  piece of  evidence of the   custom. The entries in the  Riwaj-i-am may however be proved   to be incorrect, and the quantum  of evidence  required for the   purpose of rebutting them  will vary with the circumstances   each case.  The presumption of correctness attaching to a   Riwaj-i-am may be rebutted,  if it is shown that it affects adversely the rights of  females or  any other class of persons who had   no  opportunity  of appearing  before  the revenue authorities.  (See    Beg  v. Allah  Ditta,  A.I.R. 1916 P.C. 129 at 131  ;Saleh  Mohammad v. Zawar Hussain A.I.R. 1944 P.C. 18; Mt. Subhani v.  Nawab, A.I.R. 1941 P.C. 21 at 25).  (6)When the question of custom applicable to an agricultur- ist is raised, it is open to a party who denies the applica- tion  custom to show that the person who claims to  be  gov- erned by it has completely and permanently drifted away from agriculture  and agricultural associations and  settled  for good in urban life and adopted trade, service, etc., as  his principal occupation and means and source of livelihood, and does not follow other customs applicable to  agriculturists. (See Muhammad Hayat Khan v. Sandhe Khan and Others, 55  P.R. (1906)  270 at 274; Muzaffar  Muhammad v. Imam  Din,  I.L.R. (1928) 9 Lab. 120, 125). (7)  The opinions expressed by the compiler of a  Riwaj-i-am or Settlement Officer as a result of his intimate  knowledge and  investigation  of the subject, are entitled  to  weight which  will vary with the circumstances of each  case.   The only safe rule to be laid down with regard to the weight  to be attached to the compiler’s remarks is that if they repre- sent  his  personal  opinion or bias and  detract  from  the record of long standing custom, they will not be  sufficient to  displace the custom, but if they are the result  of  his inquiry and investigation as to the scope of the 827 applicability  of the custom and any special sense in  which the  exponents of the custom expressed themselves in  regard to it, such remarks should be given due weight.  (See Narain Singh  v. Mr. Basant Kaur A.I.R. 1935 Lah. 419  at  421,422; Mr.  Chinto v. Thelur, A.I.R. 1935 Lah. 98S; Khedam  Hussain

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v. Mohammad  Hussain, A.I.R. 1941 Lah. 73 at 79).

JUDGMENT:     CIVIL APPELLATE  JURISDICTION:  Civil Appeal No. 158  of 1951. Appeal from the judgment and decree dated 24th  March, 1948,  of the High Court of Punjab at Simla (Teja Singh  and Khosla JJ.) in Regular First Appeal No. 133 of 1945  arising out of judgment and decree dated 25th November, 1944, of the Court of the Senior Subordinate Judge, Kangra, at  Dharmsala in Suit No. 86 of 1,943. Daryadatta Chawla for the appellant.     Gurbachan Singh (Jindra Lat, with him) for the  respond- ent.     1952.   May 16. The Judgment of the Court was  delivered by     FAZL ALl J.--This is an appeal against the judgment  and decree  of the High Court of Punjab at Simla  reversing  the judgment  and  decree  of the Senior  Subordinate  Judge  of Kangra in a suit instituted by the appellant for a  declara- tion  that he was the sole lawful heir of one  Musammat  Ram Piari,  whom  he  alleged to be his wife, and  as  such  was entitled  to the properties left by her, and for  possession of  those  properties.  The suit was  instituted  against  2 persons,  namely, Parvin Kumari, who was alleged to  be  the daughter  of  the plaintiff by Ram Piari, and  Shrimati  Raj Kumari, who were respectively impleaded as defendants Nos. 1 and 2.     The  case of the plaintiff as set out in the plaint  was that he was married to Ram Piari, the daughter of an employ- ee of Raj Kumari (defendant No. 2) about 22 years before the institution of the suit, that after marriage she lived  with him  at  Hoshiarpur  and gave birth to  a  daughter,  Parvin Kumari  (defendant No. 1), on the 4th March, 1929, and  that Ram Piari died in 828 April,  1941, leaving both movable and immovable  properties which  she had acquired in her own name with the aid of  his money and which had been taken possession of by Raj  Kumari. He further alleged that  he was a Rajput by caste  belonging to tehsil Garhshankar in the district of Hoshiarpur, and was governed by custom in matters of succession, and,  according to  that  custom,  he, as the husband of  the  deceased  Ram Piari, was entitled to the movable and immovable  properties left  by  her  to  the  exclusion  of  Parvin  Kumari,   her daughter.The  suit was contested by both Parvin  Kumari  and Raj  Kumari, and both of them denied that the appellant  had been married to Ram Piari.  Their case was that the  proper- ties in suit were acquired by Raj Kumari with her own  money for  Ram Piari, that the latter had made a will  bequeathing them to her daughter, Parvin Kumari, that the appellant  was not  governed by custom, and that in any event  the  alleged custom  could not apply to the personal and self-.  acquired property  of Ram Piari,  As regards 2 cars which  were  also included  in the list of properties claimed in  the  plaint, the  case  of Raj Kumari was that they belonged to  her  and that the deceased was only a benamidar.     The  trial court decreed the plaintiff’s suit  with  re- spect to all the properties excepting the 2 cars which  were held to belong to Raj Kumari.  The court held that Ram Piari was  the legally married Wife of the appellant, that he  was governed by customary law applicable to Rajputs of  Hoshiar- pur district in matters of succession, and that according to that  customary  law  he was the preferential  heir  to  the

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estate  of Ram Piari.  The court further held that the  will of  Ram  Piari  was invalid as she had no  power  under  the customary law to make a will.    Both  the defendants appealed to the High  Court  against the  judgment of the trial court, and the appeal  was  ulti- mately  allowed and the plaintiffs suit was dismissed.   The High Court held that though there   829 was  evidence of long cohabitation of the plaintiff and  Ram Piari  giving  rise to a presumption of marriage,  yet  that presumption  had  been completely rebutted  and  the  proper conclusion  to be arrived at on the evidence on  record  was that  the  plaintiff had not been  able to  prove  that  Ram Piari  was  his  lawfully wedded wife.  As  to  custom,  the findings of the High Court were as follows :--     (1) that the appellant belonged to an agricultural tribe of  Hoshiarpur  district and was therefore governed  by  the custom prevailing among the Rajputs of that district;     (2)  that there was no local or general custom  allowing the  plaintiff to succeed in preference to the  daughter  to the  property left by Ram Piari which had been given to  her by a stranger, namely, Raj Kumari, and     (3)  that the parties were governed by Hindu  law  under which  Parvin  Kumari being the daughter of  Ram  Piari  was entitled to succeed to the properties left by the latter  in preference to the plaintiff.     Against  the decision of the High Court,  the  plaintiff has now preferred this appeal, after obtaining a certificate from  the High Court under sections 109 and 110 of the  Code of Civil Procedure.     The first question which arises in this appeal is wheth- er the plaintiff has succeeded in proving that Ram Piari was his  legally wedded wife. The plaintiff was  admittedly  em- ployed as a copyist in the District Judge’s court at  Hoshi- arpur  and  was living in that town.  His case was  that  he gained  the acquaintance of Raj Kumari (defendant No. 2),  a wealthy  lady of Kangra district who owned a tea  estate  in tehsil  Palampur  and occasionally visited  Hoshiarpur,  and through  her good offices was married to Ram Piari, who  was the  daughter of one Chandar Bit, an employee of Raj  Kumari working  in her tea estate. After marriage, Ram Piari  lived with  the  plaintiff at Hoshiarpur as  his  lawfully  wedded wife, and a daughter, Parvin Kumari, (also called Usha Rani) was born to 830 them on the 4th March, 1929. Raj Kumari had great attachment to wards Ram Piari and often used to pay visits to  Hoshiar- pur  to meet her. In the year 1934-35 (no date is  mentioned in  the  plaint; but this year is  mentioned in  the  plain- tiff’s evidence), Raj Kumari took Ram Piari from the  plain- tiff’s  house  with belongings of every description  on  the pretext of taking her out for recreation. Ram Piari did  not like  going round with Raj Kumari and though she  wanted  to come back to the plaintiff she had not the courage to  diso- bey  Raj Kumari, and in fact Ram Piari and’ Raj  Kumari  in- wardly  hated one another during the last years of the  for- mer’s life. In the year 1941, Ram Piari died at Mayo  Hospi- tal  at Lahore, leaving the properties in dispute which  had been acquired by her by good management with the plaintiff’s own money.     As  against this version of the. plaintiff, the case  of Raj  Kumari  was that Ram Piari had been enticed away  by  a motor  driver sometime in 1921, that she returned  to  Holta estate after about 11 years with Parvin Kumari who was  then about  3  years old, and after her return both she  and  her

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daughter remained with her (Raj Kumari) till Ram Piari  died in 1941. Raj Kumari, being a widow, felt very lonely and  so brought  up Ram Piari as a companion and all the  properties in  dispute had been acquired by her with her own money  for the  benefit of Ram Piari  Parvin Kumari had  been  educated and  brought  up at her expense, and it was  entirely  false that she and Ram Piari inwardly hated each other, the  truth being that they liked and were attached to each other.     The evidence adduced by the plaintiff to prove that  Ram Piari  was his lawfully wedded wife consists partly  of  the evidence of a number of witnesses and partly of  circumstan- tial evidence. The direct evidence of marriage is  furnished by Babu Ram, P. W. 7, Anant Ram, P.W. 11, Babu, P.W. 12, and Asa  Ram, P.W. 13.  Babu Ram claims to be the family  priest and alleges to have officiated as priest at the time of  the plaintiff’s marriage,  Anant Ram and Asa Ram are 831 jaswal  Rajputs residing in village Bham, which is near  the plaintiff’s  village,  Ajnoha, and Babu is a  barber.  These four  persons have said that they accompanied  the  marriage party and that the marriage of the plaintiff with Ram  Piari was celebrated in their presence. The evidence of the  other witnesses  and the circumstantial evidence upon which  reli- ance  has been placed by the plaintiff have been  summarized by  the learned Subordinate Judge in his judgment  in  these words :--     "P. W. 5 Mukhi Ram is a Municipal Commissioner at Hoshi- arpur. P.W. 4 Doctor Shadi Lal is a leading Medical  Practi- tioner of Hoshiarpur. P.W. 9 Lala Sham Lal and P.W. 10  Lala Har Narain have been co-employees with the plaintiff in  the same  office; though these persons (except P.W. 9)  have  no social relations with the plaintiff and his family, yet they have  been  seeing Ram Piari living with  plaintiff  as  his wife.  She was proclaimed as such by the plaintiff and  both of  them were treated as husband and wife by the  people  of the Mohalla and by the brotherhood in the village of  plain- tiff.  Exhibits P-18 and P-19 show that defendant No. 2  has been addressing Ram Piari, care of plaintiff in 1932 and has been  receiving correspondence, care of the plaintiff  which shows that she approved of the plaintiff’s alliance with Ram Piari  ......   Paras Ram, a younger brother of  Ram  Piari, lived in the house of Gokal Chand and it is in evidence that he used to address the plaintiff as jija--a common name  for sister’s  husband.  From 1930 to 1934 Paras Ram read in  the D.A.V. High School at Hoshiarpur and Exhibits P.W. 6/1 to  6 are copies of entries in the registers of the school regard- ing applications which were given by Gokal Chand, plaintiff, for admission of his ward Paras Ram, son of Chandar Bit  who was  described  as his sala (wife’s brother).  P.W.  6  Lala Bishan  Das, teacher, has filed these copies.  His  sister’s house was adjacent to the house of the plaintiff and he  had occasions to see Ram Piari living and being treated as  wife by the plaintiff during those years." 108 832      Upon the evidence to which reference has been made, the trial  court came.to the conclusion that Ram Piari  was  the legally married wife of the appellant.       The  learned  judges of the High Court  however  found the  evidence  of the 4 witnesses who claimed to  have  been present at the marriage of the plaintiff to be quite  uncon- vincing, and they pointed out that the case of the plaintiff being  that his marriage had been performed with great  pomp and show, it was surprising that the evidence relating to it should be confined to 4 persons one of whom appeared to be a

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hired witness’ and the other 3 were interested persons.      As  to the evidence of the 4 persons who claim to  have been present at the plaintiff’s marriage, we find  ourselves in  agreement  with the view taken by the  High  Court.  The evidence of the other witnesses undoubtedly establishes  the fact  that for some years the plaintiff and Ram Piari  lived together as husband and wife and were treated as such,  that Paras Ram, brother of Ram Piari, addressed the plaintiff  as jija  (a  common name for sister’s husband),  and  that  the plaintiff acted as Paras Ram’s guardian when the latter  was admitted to D.A.V. School and was described as his  brother- in-law  in some of the entries in the school  register.  The learned  Judges of the High Court considered that  the  evi- dence of certain witnesses who deposed to some of the  facts on  which  the lower court relied, did not  strictly  comply with  the requirements of section 50 of the Indian  Evidence Act,firstly  because the witnesses had no special  means  of knowledge on the subject of relationship between the  plain- tiff  and  Ram Piari, and secondly because what  section  50 made relevant was not mere opinion but opinion "expressed by conduct"  of persons who as members of the family or  other- wise,  had special means of knowledge.  It seems to us  that the question as to how far the evidence of those  particular witnesses is relevant under section 50 is academic,  because it is well-settled that continuous cohabitation for a number of  years  may raise the presumption of  marriage.   In  the present  case,  it seems clear that the  plaintiff  and  Ram Piari 833 lived  and were treated as husband and wife for a number  of years,  and, in the absence of any material pointing to  the contrary conclusion a presumption might have been drawn that they  were  lawfully married.  But the presumption which may be drawn  from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that  presumption, the  court  cannot ignore them.  We agree with  the  learned Judges  of  the High Court that in the  present  case,  such circumstances  are not wanting, and their cumulative  effect warrants  the  conclusion that the plaintiff has  failed  to prove  the  factum of his marriage with Ram Piari.   In  the first place, the plaintiff has not examined any of his  near relations  such  as his brother, or  collaterals  living  in Ajnoha, or any co-villagers, whose presence at the  marriage would  have been far more probable than the presence of  the witnesses  examined by him. He has also not examined any  of the  witnesses  residing in or round about Holta  estate  in spite of the fact that his own case is that the marriage was celebrated  with great pomp and show.  It. was suggested  in the  courts below that since defendant No. 2 is an  influen- tial  person, no local witnesses would be available to  sup- port the plaintiff’s case, but the High Court has very fully dealt  with  this aspect and pointed out  firstly  that  Raj Kumari had litigation with a number of persons belonging  to Palampur and such persons would not be under her  influence, and  secondly  that no gold reason has been  shown  why  Raj Kumari,  who is alleged to have brought about  the  marriage between  the  plaintiff  and  Ram  Hari,   should   take   a completely   hostile  attitude  towards  him.   Then  again, neither  the parents nor any of the relations of  Ram  Piari have  been examined to support the plaintiff.  On the  other hand,  Ram  Hari’s own mother, Ganga, has deposed  that  the former was never married to the plaintiff, and the statement made  by  Ram Piari in her will, which is  a  very  valuable piece  of evidence, is to the same effect.  It is  also  in- credible  that in spite of the love which Ram Piari is  said

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to have had for the plaintiff, she left him 834 and  went away to live with Raj Kumari, and that during  the long  period when Ram Piari was away, the  plaintiff  should never  have visited her or made enquiries about her and  his alleged  daughter,  Parvin   Kumari.  This is all  the  more strange, since it is stated by the plaintiff that Ram  Piari continued  to love him and that she and Raj Kumari  inwardly hated each other.  Parvin Kumari says in her deposition that she had never seen her father and that when she reached  the age of discretion she found herself living at Palampur.  The conduct of the plaintiff in showing such complete  indiffer- ence  to his wife and daughter as is disclosed in  his  evi- dence  is most unnatural, and no less unnatural is his  con- duct  in  instituting a suit to deprive  her  of  properties which had come into her hands not by reason of anything done by  him but as a result of the generosity shown towards  her by a stranger.  The plaintiff’s case that the properties  in dispute were acquired by Ram Piari with the aid of his money is wholly untrue, and it has been rightly found by both  the courts  that they were acquired for her by Raj Kumari.   The plaintiff’s witnesses have tried to exaggerate his means  to support  his case, but the truth appears to be that  he  had hardly  any  means  of his own beyond  the  somewhat  meagre salary which he used to draw as a court typist.     Several  of the witnesses including an Advocate and  Ram Piari’s  own mother have deposed that Ram Piari  had  eloped with a driver and had remained away from Holta estate for  a number of years.  Even the Subordinate Judge has not reject- ed  the story of elopement, and though there is no  reliable evidence  as  to  when and how she met  the  plaintiff,  the possibility of her having lived with him for some years even though  they were not legally married, cannot be ruled  out. The  plaintiff claims to be a Rajput of high caste,  and  it appears to us rather unusual that he should not marry in his own tribe but should take in marriage a Gurkha girl who  was born  of very poor parents and belonged to a place far  away from where he himself lived. 835     The  fact  that Paras Ram lived with the  plaintiff  for some  time  and addressed the latter as jija, and  that  the plaintiff  described himself as guardian and  brother-in-law of Paras Ram, is as consistent with the  defence version  as with  the plaintiff’s. If Paras Ram’s  parents had  been  in affluent  circumstances  so as to be able  to  maintain  and educate  him, the case would have been different, but  there is evidence to show that Chandar Bir was very poor and  both his wife and daughter had to work as servants of Raj  Kumari to earn their living.     In  our opinion, the conclusion arrived at by  the  High Court  has not been shown by the plaintiff to be  incorrect, and whatever the true facts may be, we are compelled to hold that in the present state of evidence the plaintiff has  not succeeded  in  establishing that Ram Piari was  his  legally wedded wife.     In  the view we have taken, it is not necessary to  deal with  the question whether succession to the  properties  in dispute  will be governed by customary law or by Hindu  law, but  since it was argued before us at very great length,  we think that we might state the contentions  of  the   parties and  the difficulties which in our opinion arise in  dealing with  those contentions on the material before  us.   Before doing so, however, we wish to set out briefly certain gener- al  principles  which  we think should be kept  in  view  in dealing with questions of customary law.  They may be summa-

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rized as follows :--     (1)  It should be recognized  that many of the  agricul- tural  tribes  in the Punjab are governed by  a  variety  of customs,  which depart from the ordinary rules of Hindu  and Muhammadan  law, in regard to inheritance and other  matters mentioned in section 5 of’ the Punjab Laws Act, 1872.     (2) In spite of the above fact, there is no  presumption that a particular person or class of persons is governed  by custom, and a party who is alleged to be governed by custom- ary  law  must prove that he is so governed  and  must  also prove the existence of the 836 custom set up by him. See Daya Ram v. Sohel Singh and Others (1), Abdul Hussein Khan v. Bibi Song Dero C).     (3)  A custom, in order to be binding, must  derive  its force  from the fact that by long usage it has obtained  the force of law, but the English rule that "a custom, in  order that  it  may be legal and binding, must have been  used  so long  that  the memory of man runneth not to  the  contrary" should  not  be strictly applied to Indian  conditions.  All that is necessary to prove is that the usage has been  acted upon in practice for such a long period and with such invar- iability  as  to show that it has, by common  consent,  been submitted to as the established governing rule of a particu- lar locality.  See Mr. Subhani v. Nawab(3).     (4) A custom may be proved by general evidence as to its existence by members of the tribe or family who would  natu- rally be cognizant of its existence and its exercise without controversy,  and such evidence may be safely acted on  when it  is  supported by a public record of custom such  as  the Riwaj-i-am  or Manual of Customary Law.  See Abroad Khan  v. Mt. Channi Bibi(4).     (5) No statutory presumption attaches to the contents of a  Riwaj-i-am  or similar compilation, but  being  a  public record prepared by a public officer in the discharge of  his duties  under Government rules, the statements to  be  found therein  in support of custom are admissible to prove  facts recited  therein and will generally be regarded as a  strong piece  of  evidence  of  the custom.   The  entries  in  the Riwaj-i-am  may however be proved to be incorrect,  and  the quantum  of evidence required for the purpose  of  rebutting them  will  vary with the circumstances of each  case.   The presumption of correctness attaching to a Riwaj-i-am may  be rebutted,  if  it  is shown that it  affects  adversely  the rights  of females or any other class of persons who had  no opportunity  of  appearing before the  revenue  authorities. See Beg v. Allah Ditta (5), Saleh   (1) 110 P.R. (1906) 390 at 410    (4) A.I.R. 1925 P.C. 267 at 271.   (2) LR. 45 I.A. 10.  (5) A.I.R. 1916 P.C. 129 at 131.   (3) A.I.R. 1941 P.C. 21 at 32.   837 Mohammad v. Zawar Hussain(1);Mt. Subhani v. Nawab(2).     (6)  When the question of custom applicable to an  agri- culturist is raised, it is open *to a party who denies   the application of custom to show that the person who  claims to be  governed  by it has completely and  permanently  drifted away  from  agriculture and  agricultural  associations  and settled  for good in urban life and adopted trade,  service, etc.,  as his principal occupation and means and  source  of livelihood, and does not follow other customs applicable  to agriculturists.  See Muhammad Hayat Khan v. Sandhe Khan  and Others(3), Muzaffar Muhammad v. Imam Din(4).     (7)  The  opinions  expressed  by  the  compiler  of   a Riwaj-i-am or Settlement Officer as a result of his intimate

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knowledge and investigation of the subject, are entitled  to weight which will vary with the circumstances of each  case. The only safe rule to be laid down with regard to the weight to  be  attached to the compiler’s remarks is that  if  they represent his personal opinion or bias and detract from  the record of long-standing custom, they will not be  sufficient to  displace the custom, but if they are the result  of  his inquiry and investigation as to the scope of the applicabil- ity  of the custom and any special sense in which the  expo- nents  of the custom expressed themselves in regard  to  it, such remarks should be given due weight. See Narain Singh v. Mt. Basant Kaur(5), Mt. Chinto v. Thelur (6); Khedam Hussain v. Mohammad Hussain(7).     Bearing  these principles in mind, the difficulty  which appears  to  us to beset the case of the  plaintiff  may  be briefly stated as follows :-     The basis of the plaintiff’s case is that the custom  by which  he claims to be governed is a "zamindara custom"  and he is governed by it by reason of his belonging to a  family of  agriculturists.  From the evidence, however, it  appears that he Had sold most, if not (1)A.I.R.1944 P.C.18.  (5) A.I.R. 1935 Lab. 419 at 421, 422. (2) A.I.R. 1941 P.C. 21 at 25. (6) A.I.R. 1985 Lah. 985.  (5)55 P.R. (1906) 270 at 274. (7) A.I.R. 1941 Lah. 73 at 79  (4) I.L.R. (1928) 9 Lah. 120, 125. 838 all,  of his property in the village to which  he  belonged, that his ancestors were bankers or sahukars, that his father was  a clerk of a lawyer practising in  Hoshiarpur  district and  that  he himself was a clerk in the  District   Judge’s court at Hoshiarpur and lived there, and there is hardly any evidence to show that any of his relations was dependent  on agriculture  or that he maintained connection with them.  In our  opinion. the witnesses of the plaintiff have  tried  to grossly exaggerate his pecuniary means and have not given  a correct  picture on which the answer to the question  as  to whether  he would still be governed by the old custom  would depend.   Again, though according to the answer to  question 11  in the Riwaj-i-am of Hoshiarpur district,   the  general custom governing the Rajputs of that district would seem  to be  that  a marriage within the tribe only  is  lawful,  the plaintiff did not marry a Rajput of his district but is said to have married a Gurkha woman, about whose caste and  char- acter  the  evidence is conflicting, and  whose  family  was admittedly  not governed by the "Riwaj-iam" upon  which  the plaintiff  relies.   If both the husband and  the  wife  are shown to belong to the same tribe and to be governed by  the same  custom, then the difficulty in deciding what would  be the rule of succession on the death of the wife in regard to the wife’s self-acquired property may not be very great. But even if it be assumed that Ram Piari was lawfully married to the  plaintiff, the serious question to be decided would  be whether succession to the property which Ram Piari  received as  gift  from  a stranger and which she owned  in  her  own right,  would be governed by the custom  governing her  hus- band’s family and not her own.  Such marriage as is said  to have  been  contracted by the plaintiff being  evidently  an event  of rare occurrence, the rule of succession set up  by him cannot be said to derive its force from long usage.   As we  have pointed out, a custom in order to be  binding  must derive  its  force from the fact that by long usage  it  has obtained the force of law; and if an Occasion never arose to apply the rule of succession 839 invoked by the plaintiff, to the property held by a wife  in

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her own right, the foundation on which custom grows would be wanting. When the matter is further probed, it appears  that the plaintiff relies not only on custom but partly on custom ’and  partly on the rule of Hindu law, namely, that the  law which  governs  the husband will govern   the   wife   also. Whether  the latter rule can be extended to a case like  the present  is a question of some difficulty, on which,  as  at present  advised, we would reserve our opinion. In the  cir- cumstances. we prefer to leave the issue of custom  undecid- ed.  and  base  our decision on the sole  ground,  which  by itself is sufficient to conclude the appeal, that the plain- tiff’s  marriage with Ram Piari has not been clearly  estab- lished.     The  appeal therefore fails and it is dismissed. but  in the  circumstances  of the case and particularly  since  the appellant has appealed in forma pauperis, we direct that the parties will bear their own costs in all the courts. Appeal dismissed. Agent for the appellant: S.D. Sekhri.  Agent for the respondent: Naunit Lal.