THAKUR GOKALCHAND versus PARVIN KUMARI

Citation: [1952] 1 S.C.R. 825 · Decided: 16-05-1952 · Supreme Court of India · Bench: SIR SYED FAZL ALI · Disposal: Dismissed

Judgment (excerpt)

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S.C.R. 
SUPREME COURT REPORTS 
825 
THAKUR GOKALCHAND 
ti. 
PARVIN KUMAR! 
[SAIYID FAzL Au and VMAN BosE JJ.] 
Punjab custom-Principles to be observed 
in 
dealing 
with 
.customary law stated-Essentials of valid custom. 
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 acquire~ by way 
.of gift from a stranger, alleging that he was the lawfully wedded 
husband of R and that according to custom which applied to the 
parties with regard to succession he was entitled to succeed to the 
move,able 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 ques-
tion to be decided would be whether succession to property 
which R had received as a gift from a stranger and which she 
.owned in her own right would be governed by the custom govern-
ing her husband's family and hot 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 
even~, entitled to succeed. 
Their Lordships laid 
down 
the 
general 
principles which 
should be kept in view in dealing with questions of customary 
law as follows : 
(1) It should be recognised that many of the agricultural 
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 sec-
tion 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 customary 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; Abdul Hussein Khan 
v. Bibi So.na 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 sci long that the memory 
.of man runneth not to the contrary" should not be strictly 
~952 
May 16. 
1952 
Thakur Gokal 
Chand 
v. 
Parvin Kumari. 
826 
SUPREME COURT REPORTS 
[1952] 
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 invariabjlity as to show that it has, by 
com111on consent, been submitted to as the established governing 
rule of a particular locality. (See Mt. Subhani v. Nawab, A.LR. 
1941 P.C. 21 at 32). 
. 
( 4) A custom may be proved by general evidence ns to its. 
existence by n1embers of the tribe or family who would natur-
ally be cognizant of its existence and its exercise without 
con-
troversy., and such evidence n1ay be safely acted on when it is: 
supported by a public record of custom such as the Riwaj-i-am, 
or Manual of Custo!Jlary Law. (See Ahmad Khan v. Mt. Channi 
Bibi, A.LR. 1925 P.C. 267 at 271). 
(5) No statutory presumption attaches to the contents of at 
Ri\vaj-i-atn 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 sup-
port of custom are admissible to prove facts 
recited therein 
and' 
will generally be regarded as a strong piece of evidence of the· 
custotn. 
The entries in the llhvaj-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 adver-
sely the rights of females or any other class of persons 
who had· 
no opportunity of appearing before the revenue authorities. 
(Sec 
Beg v. Allah Ditta, A.LR. 1916 P.C. 129 at 131; Saleh Mohammad 
v. Zawar Hussain, A.LR. 1944 P.C. 18 ; Mt. Subhani v. Nawab• 
A.LR. 1941 P.C. 21 at 25). 
{ 6} When the question of custom applicable to an agricultu-
rist 

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