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18. Now, it well known that under Hindu law custom is one of the three sources of law. Where there is a conflict between the custom and the text of the Smriti, custom overrides the text. As observed by the Privy Council in Collector of Madura v. Moottoo Ramalinga Sathupathy ('68) 12 M.I.A. 397 (p. 436)" under the Hindu system of law, clear proof of usage will outweigh the written text of the law. "A custom like the present must be proved to be ancient, certain and reasonable, and being in derogation of the general rules of law, it must be established by clear and unambiguous evidence. When a party sets up a custom, it is obvious that the onus to prove that custom is on him. Putting the onus of proving this custom upon defendants 1 and 2 in this case, the question to decide is what is the mode by which this custom can be permitted to be proved. Mr. Kane contends that while proving such a custom, it is necessary that it must be established by satisfactory evidence of instances where this custom was observed and the instances cited in support of this custom must be shown to be ancient and certain. The argument is that in a case of this kind it is not open to a party to ask the Court to hold a particular custom as proved unless in support of that custom the party has been able to adduce evidence of a large number of instances showing that the custom really prevailed from ancient times. In support of this contention, Mr. Kane relied upon a decision of this Court in Bhagvandas Tejmal v. Rajmal ('73) 10 Bom. H.C.R. 241. The passage on which Mr. Kane relies appears at page 260 where this Court respectfully accepted the principles laid down by their Lordships of the Privy Council in Ramalakshmi Ammal v. Sivanantha Perumal ('70-72) 14 M.I.A. 570. This is what the Privy Council had stated (p. 585):

19. On the other hand, Mr. Jahagirdar for defendants 1 and 2 has argued that there have been many subsequent decisions as a result of which the rule as to proof of custom has been considerably modified and relaxed. It would, therefore, be convenient at this stage to refer to these decisions in their chronological order.

20. In Chiman Lal v. Hari Chand ('13) 40 Cal. 879 while dealing with the adoption of a married orphan amongst Agarwal Banias of Zira in the Punjab, the Privy Council held that the evidence produced in support of the custom pleaded was sufficient to hold (p. 160):

The Subordinate Judge was in error in putting aside the large body of evidence on the plaintiff's side merely on the ground that specific instances had not been proved. They are of opinion that the learned Judges of the High Court are right in holding that a custom of the kind alleged in this case may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognisant of its existence and its exercise without controversy.

Thus, this decision lays down that in dealing with the question of custom, Courts should not treat the proof of specific instances as the only method in which the custom could be established. If there is general evidence as to the existence of the custom given by members of the family or the community, it would be open to the Courts to rely upon that evidence and to hold the particular custom as proved. In S.K. Wodeyar v. Ganapati ('35) 22 A.I.R. 1935 Bom. 371 Rangnekar J. adopted the principles laid down in the decision of the Privy Council to which I have just referred and held that (p. 588):

In this case their Lordships held that it was unnecessary to examine the evidence as to the instances cited in the case since (p. 704):

It is well established that proof of actual instances of such a custom taking effect is not necessary: see Ahmad Khan v. Channi Bibi and other cases.

This decision, therefore, shows that while dealing with the general evidence in support of any alleged custom opinion of responsible members of the community is admissible; and if that evidence is not contradicted by any evidence to the contrary and is not otherwise shown to be unreliable, it should not be disregarded. In Subham v. Nawab the Privy Council were dealing with a customary law applicable to the Mahomedan Tulla clan resident in the Shahpur district in the Punjab, under which it was alleged that collaterals of the tenth degree of a de-ceased landowner do not take precedence over his married daughters in succession to his non-ancestral estate. It was held, while dealing with that custom, that 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,' does not apply to conditions in India. A custom must be ancient but it is not of the essence of this rule that its antiquity must in every case be carried back to a period beyond the memory of man. It will depend upon the circumstances I of each case what antiquity must be established before the custom can be accepted. What is necessary to be proved 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 the particular district.