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Before the advent of the British period, the customs of the people were mostly unwritten and unrecorded and were enshrined in the "unexpressed consciousness of the people' and were enforced by the village panchayat. With the coming in of the British methods and forms of administration of justice, it became necessary and imperative to establish customs in the courts before they could be enforced. It thus became necessary to ascertain the customs and record them in writing. No longer could the custom remain in the consciousness of the people.

The first important principle laid down by the courts in a large number of cases is that a party alleging that he is governed by a custom must specifically allege the same and prove its existence; there is no presumption that a particular person or class of persons is governed by a

custom and the onus to prove it rests on him who alleges it. This principle is followed strictly so much so that even in those areas, like Punjab and Oudh, where the statutes give preference to customs over the personal law of the party concerned, there is no presumption that a custom exists; it must be alleged and proved. The Privy Council has stated that what is required before an alleged custom can receive the recognition of the courts, and so acquire legal force, is satisfactory proof of usage so long and invariably acted upon in practice as to show that it has, by common consent, been submitted to as the established governing rule of the particular family, class or district of the country.

The custom must be established by clear and unambiguous proof, by cogent and satisfactory evidence. In the absence of such an evidence the court cannot come to a conclusion whether any custom is really operative or what is its content and scope. But, at the same time, the Privy Council has made it clear that rigorous and technical rules of proof, such as are insisted upon in England, are not required in India.

A custom cannot be enlarged or extended by parity of reasoning, analogy or logical process. One custom cannot be deduced from another. As the Supreme Court has stated: "Theory and custom are antithesis; custom cannot be a matter of mere theory but must always be a matter of fact. Thus a community living in one part of the country may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following the same custom". In the Kamma Community in the Andhra Pradesh, there is a custom that if estrangement between wife and husband occurs, dowry and all presents given to the bride- groom by the bride's people at the time of the marriage must be handed back to the bride. The Andhra High Court refused to extend it by the analogy to a situation when the bride died on the ground that there could be no greater estrangement than 'death'. But on evidence tendered the custom was held proved. Thus a custom has to be established by evidence and not by a priori methods.

What the courts want is clear and unambiguous evidence with instances of the enforcement of the custom, though it has also been laid down that proving of specific instances was not absolutely necessary at all times. A family custom can be proved by establishing to the same group, i.e., families having a common origin, and settled in the same part of the country. A custom maybe proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy. This may be said to be the effect of Ss. 48 and 49 of the Evidence Act [Section 48 runs as follows : “When the court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right of persons who would be likely to know of its existence if it existed, are relevant”. Section 49 runs as : “When the court has to form an opinion as to the usages and tenets of any body of man or family, ...the opinions of persons having special means of knowledge therein, are relevant facts”]. Decisions of courts regarding a custom are relevant under S. 42 of the Indian Evidence Act, though under that section they are not conclusive. It has been held again and again that where a custom is repeatedly brought to the notice of the courts, the courts may hold that custom was introduced into the law and that no

further proof was necessary of the custom in each case. This is the effect of S. 56 of the Evidence Act according to which nothing need be proved of which courts can take judicial notice. Therefore, a custom by repeated recognition by courts becomes entitled to judicial notice.

Very great reliance has often been placed by the courts on wajib-ul-arz or riwaz-i-am for proof of customs. Those are village administration papers which were directed to be prepared by Regulation VII of 1822. These papers have been received in evidence under S. 35 of the Indian Evidence Act which says that An entry in any public or other official book, register, or record stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duties, or by any other person in performance of a duty specially enjoined by law of the country in which such book, register or record is kept, is itself a relevant fact. The riwaz-i-am is a public document or record and is admissible in evidence to prove the facts entered thereon subject to rebuttal. The statements therein may be accepted even if unsupported by instances, as the Supreme Court has emphasized that 'the fact that the entries therein are the result of careful research of persons who might also be considered to have become experts in these matters after an open public inquiry, has given them a value which should not be lightly underestimated.Thus an entry in the wajib-ul-arz or riwaz-i-am may be given in evidence as a relevant fact because being made by a public officer; it contains an entry of a fact which is relevant.

These documents contain a record of customs prevalent in the villages in respect of whom they are prepared. The manner to prepare these papers with respect to custom appears to be that the officer recorded the statements of persons who were connected with the villages. Some of the persons whose evidence is taken may be the proprietors of villages who made statements declaring the existence of the custom in question.

Entries in these documents constitute a prima facie evidence of the customs, but it is not conclusive and it may be rebutted by other reliable evidence. Also, the weight to be attached to the documents depends upon their intrinsic quality. As the Privy Council has stated, its weight may be very slight or may be considerable according to circumstances. A wajib-ul-arz, as stated by the Privy Council in Balgobind v. Badri Prasad [(1923) 50 IA 196], when properly used, affords most valuable evidence of custom and is much more reliable than oral evidence given after the event. On the other hand, as observed by the Privy Council in Uman Parshad v. Gandharp Singh (1887) 14 IA 127], they at times contain statements which would appear to have been concocted by the persons making them in their own interest and are therefore to be disregarded, being worse than useless. With this precaution taken, the courts have depended on the records and decided a large number of cases on the bases of the entries therein of the customs without calling for any additional supporting evidence. And they regard the record as more valuable and reliable than subsequent oral evidence given by the parties after a dispute as to custom has arisen. The evidentiary value of these documents can be shaken by showing that the officer preparing them neglected his duties or was misled in recording a custom. In Uman Parshad. v. Gandharp Singh [(1887) 14 IA 134], the Privy Council refused to treat wajib-ul-arz as authoritative because it found that it was a concoction and was made at the instance of one of the parties to the dispute and that her views were entered in the record not as her views but as

the official record of a custom. This, however, is an extreme case of its kind. Invariably, the courts follow these documents as evidencing custom and rarely has the basis or the authenticity of these documents been ever challenged. It may however be noted that courts have held that presumption in favour of customs as recorded in these documents would be weak where women are adversely affected as they have no opportunity to appear before revenue officers and only a few instances would suffice to rebut it.

Further manuals of customary law in accordance with riwaz-i-am have been issued by authority for each district which stand on much the same footing as the riwaz-i-am itself as evidence of custom. Even if there be no evidence of instances, still the custom mentioned in the manual of the customary law of the district, there is sufficient prima facie evidence of the existence of the custom, subject, of course, to rebuttal, and that it ought not to be held insufficient merely for want of instance.

The inhabitants of the Kumaon Hills, known as Khasis, are governed by customs which are at variance with the Mitakshara on many points. As usual when any case came from this territory for decision, the court demanded strict proof of the custom and at times ignorant and simple people could not always muster sufficient proof to prove their customs. With the result, the people suffered injustice because many of their customs failed to get recognition at the hands of the courts. The U.P. Government felt that it was inequitable and imposing an impossible task to require the people of Kumaon, unsophisticated and uneducated as they were, to make them adduce proof to establish their customs and, therefore, it undertook to investigate and ascertain the customs of these people. In 1919, the Government appointed Shri Panna Lal, I. C. S., to make a collection of local customs of Kumaon and the result was the Hindu Customary Law in Kumaon published in 1920 by the authority of the Government. This book has been held to be admissible in evidence in the courts under S. 35 of the Indian Evidence Act as it was compiled by making a local inquiry into the actual existing customs of the people.

Besides the above-mentioned official attempts at ascertaining the customs of the people, some private attempts have been made in that direction. Based on the riwaz-i-ams and the judicial decisions, some treatises came to be prepared by scholars. One such book was brought out by Mr. William Rattigan in 1880 containing customs of the Punjab; it has run into several editions since its publication, and has assumed a great authority in matters of Punjab Customary Law, so much so that it has been noticed even by the Privy Council in Mt. Subhani v. Nawab [AIR 1941 PC 21], as a book "of unquestioned authority in Punjab". This Digest of Customary Law has invariably been cited in judicial decisions. The Supreme Court has recently stated that the authoritative value of Rattigan's Compilation of Customary Law is now beyond controversy, having been recognised by the Punjab courts and even by the Privy Council. But where there is a conflict between riwaz-i-am and Rattigan’s Digest, the entries in the former ordinarily prevail. In Jammu and Kashmir, the High Court has referred to Sant Ram Dogra's Code of Tribal Custom.

There is some difference of opinion in the judgments of the Privy Council itself over the question whether questions of the existence of an ancient custom are generally questions of law or are mixed questions of law and fact or simply of fact. In Palaniappa Chetty v. Deivasikamony

Pandara [(1917) 44 IA 147], the Privy Council held it as a mixed question of law and fact. In several other cases, it held it to be a question of fact only.

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