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24. Ultimately, the question must turn into a question of the standard of proof required for establishing a custom such as is alleged in the present case; and I think, I shall deal with the arguments placed before us best if I proceed immediately to consider the case from that aspect.

25. The nature and extent of proof required for establishing a custom has teen frequently considered by their Lordships of the Privy Council. It was the principal point for consideration in Abdul Hussein Khan v. Bibi Sana Dero (1917) L.R. 45 I.A. 10 : s.c. 20 Bom. L.R. 528 : s.c. I.L.R. 45 Cal. 450. That appeal was from the Court of the Judicial Commissioner of Sind. The judgment was delivered by Lord Buckmaster. He lays down certain general principles to define the standard that the evidence must attain, in order to succeed in altering the devolution of property according to Muhammadan law, to a devolution determined by custom. In the very forefront Lord Buckmaster cites a passage from Mr. Justice Robertson's judgment in Daya Ram v. Sohel Singh (1905) P. R. No. 110 of 1906, with the remark that the words so aptly and expressly declare the true relation of the necessity of proof as between customary and established law that they may with advantage be reproduced. In this passage Robertson J. lays down several propositions which for convenience I will state categorically:

27. I have put the first of Robertson J.'s propositions under two heads: (a) The assertion that a party is ruled in regard to a particular matter by custom must be proved; and (b) the particular custom must be proved. Involved with this latter question is however a third point, (c) which Robertson J. indicates in 3 (c) : the custom must be ancient and certain and not opposed to public policy. The exact; bearing of judicial decisions on the assertion and proof of custom is important, and in my opinion the judgments under appeal have misunderstood and misapplied the principles applicable. The fact that a particular custom has been judicially recognised establishes that the custom is reasonable, and not opposed to public policy : so that it will be upheld whenever it is proved. This is the legal aspect of the custom : Moult v. Halliday [1898] 1 Q.B. 125, But-subject to what I shall presently state-judicial recognition of a custom in another suit leaves untouched the proof of the fact that the custom is applicable to the particular parties who are before the Court: That is a question of fact to be established by the particular parties.

28. The question of fact-whether the parties before the Court are bound by the custom-must be determined by appropriate evidence in that very case. When it is alleged that a custom is binding upon a particular body of persons united by ties of religion, common descent, etc.-this distinguishes it from a local custom : Narayan Singh v. Nnanjan Chakravarti (1923) L.R. 51 I.A. 37, 60,-the evidence appropriate for establishing that the custom is binding on the particular parties must ultimately include proof of the fact that the parties before the Court have adopted it as a rule of conduct; have consciously accepted it as having the force of law; that the particular parties have been governing their conduct in accordance with the custom : Mirabivi V. Vellayanna (1885) I.L.R. 8 Mad. 464, 466 and Kunhambi v. Kalanthar (1914) I.L.R. 38 Mad. 1052. The matter must depend on an inquiry as to " What has been de facto the practice " : Khatubdi v. Mahomed Haji Abu (1922) I.L.R. 47 Bom. 146, 153 : s.c. 24 Bom. L.R. 127, p.c. As stated in Hirbai v. Sonabai, Kojahs and Memons' Case (1847) Perry's O.C. 110, 116, ff, such a custom originates as a rule framed or at any rate followed by the parties (or their predecessors) for the conduct of daily life: the rule so framed grows up into a custom. Proof of this ultimate fact-that the parties have adopted the rule of conduct-may consist of adducing previous instances in which the particular parties themselves have followed the rule. Secondly, it may consist of instances concerning other persons belonging to the same community or group as the particular parties: in which case it is matter of inference that the particular parties would have acted in a similar way. To justify this inference, however, the link must necessarily be established that the particular parties and the third parties whose conduct is actually proved stand on the same footing either by belonging to the same community or group, or-and here we take a further step-to a community so similar to the one in question that the inference in question may be legitimately drawn. That the instance relied upon consists of an instance proved in Court,-an instance ' moreover in which the Court delivered judgment on the basis that the particular parties then before the Court had adopted a particular rule of conduct,-does not (in respect of the aspect with which I have so far dealt) differentiate the instance from other instances. Thus, Sir Lawrence Jenkins, delivering the decision of the Privy Council in Muhammad Ibrahim Rowther V. Shaikh Ibrahim Rowther (1922) I.L.R. 45 Mad. 308, 316 : s.c. 24 Bom. L.R. 944, p.c., alludes to the previous decrees and judgments as documentary evidence and not as binding decisions having the force of law. The distinction between such an instance followed by a judgment and other instances consists in the weight to be attached to the instance. The judgment may of course make the matter res judicata if all the requirements of Section 11 of the Civil Procedure Code are satisfied. On the other hand, the previous judgment may be merely evidence under Sections 40, 41, 49, 87, 32(4) or similar sections of the Indian Evidence Act; or as in Gobinda Narain Singh V. Sham Lal Singh (1931) L.R. 58 I.A. 125, 136 : s.c. 33 Bom. L.R. 885, 893, the judgment may be admissible under the provisions of Sections 13 and 43 of the Indian Evidence Act as only establishing a particular transaction in which the custom was asserted and recognized. " The reasons upon which the judgment is founded," said Sir George Lowndes, " are no part of the transaction and cannot be regarded, nor can any finding of fact there come to, other than the transaction itself, be relevant in the present case." Even in such cases the practical effect of the previous judgment or decision may by reason of the quantity and nature of the evidence then adduced be that third parties may not consider it worth their while to contest once more the applicability of the customary rule to themselves, although they were not strictly bound by the previous decision, and although the decision did not make the matter res judicata : Mirabivi v. Vellayanna (1865) I.L.R. 8 Mad. 464, 466; Les Affreteurs Reunis Societe Anonyme V. Leopold Walfold (London), Limited [1919] A.C. 801, 808, Mussumat Bebee Bachun V. Sheikh Hamid Hossein (1871) 14 M.I.A. 377, 388. Or the custom may have been continually put forward and proved by evidence, so that the time has come when a Judge may say that he no longer requires it to be proved, but that he will take judicial notice of it: George v. Davies [1911] 2 K.B. 445, cited in Kunhambi v. Kalanthar (1914) I.L.R. 38 Mad. 1052, 1061; cf. Vaishno Ditti v. Rameshri (1928) L.R. 55 I.A. 407, 421, 422. This last case refers; not to decisions but to the record of custom in the riwaj-i-am.

The custom " has been forcibly criticised by the learned Subordinate Judge in the course of his careful and discriminating judgment. He points out that in its wider assertion it is untenable, and even in its narrower form it is not established. He might even have gone further and pronounced the pleadings bad.

35. I have extracted these principles defining the standard of proof for establishing a custom as it seems obvious that they have been disregarded by the lower Courts, carefully though the evidence has been considered. I will proceed to apply the principles to the evidence before us.