1. The plaintiff is the zamindar of village Aring. Defendant 5 was the owner of a shop in the said village which he sold to defendants 1 to 4 for Rs. 870 on 19th January 1933. The plaintiff claimed that he was entitled to a 10 per cent. of the sale price as haq-i-zamindari in accordance with a custom prevailing in the village and recorded in the wajibularz and he was thus entitled to Rs. 87 which the defendants had not paid to the, plaintiff and the plaintiff was, therefore, entitled to claim the said sum with interest. The interest upto the date of suit claimed was Rs. 47. The total claim, therefore, was for Rs. 134. The defendants contested the suit on various grounds, two of which are now material for the purpose of this appeal, viz., that there was no such custom as set out by the plaintiff and that the plaintiff was not entitled to any interest. Both the Courts below have dismissed the plaintiff's suit. The plaintiff has filed this appeal. The question for consideration before us is whether the plaintiff has been able to establish a valid custom binding on the defendants.
2. It is not denied that the plaintiff is the zamindar of village Aring and as such is, to a great extent, concerned in the transfer of a tenant's house. In many villages the tenants have no right to transfer at all without the consent of the zamindar; in several others custom of transferability has grown up and it has been held that it is for the tenants to prove such a custom. In this particular village in the wajibularz prepared in 1284 F. the custom recorded is in the following terms: ' Jah koi shakhs makan apna bechta hai to mushtari se muafiq haisiat makan ke haq zamindari malguzar deh ko milta hai.' The learned Counsel for the defendants has urged with great force that it is not mentioned in the wajibularz at what rate the zamindar is entitled to claim this haq-i-zamindari and the words that the buyer has to pay according to the haisiat makan are too vague to be enforced and recognized in Courts of law.
3. The first case in which this question arose was in a series of five cases instituted by the zamindar some time in the beginning of this century. The suits were decreed by the lower Courts and a number of second appeals were filed by the defendants transferees in this Court. These cases were numbered as Second Appeals Nos. 626, 627 and 628 of 1904. They were heard and decided on 28th February 1906 by a very eminent Judge of this Court, Sir Promoda Charan Banerji, who held that the custom was established and dismissed the appeals. In the course of his judgment the learned Judge observed that the lower appellate Court
relies for its conclusion upon an entry in the wajib-ul-arz of 1284F. which apparently is the record of a custom and not of the wishes of the proprietor. The learned Judge further relies upon a mass of evidence which proves that on the sale of houses in the village the zamindar has received for a number of years a portion of the sale price. The finding is that this payment ranged over a sum varying from 5 to 50 per cent. The plaintiff has claimed only 10 per cent and this the learned Judge considered to be below the rate at which payments had been made to the plaintiff on other occasions.
The learned Judge of this Court accepted these findings and held that the suit had been rightly decreed. It is argued by the learned Counsel for the respondents that a custom should be certain and uniform and a custom which left the amount of the claim to the sweet will of the zamindar did not fall in that category and could not be enforced. Learned Counsel argues that this point was not raised before Sir Promoda Charan Banerji and therefore that judgment should not be considered to be of much evidentiary value to establish the custom, and he relies on the observations in the judgment that the zamindar had been charging from 5 to 50 per cent. to show that there was no uniform rate at which the zamindars in the village had been charging their customary dues. Learned Counsel for the respondents has relied on another single Judge decision of this Court in Bhora Laxmi Narain v. Badri Das Second Appeal No. 320 of 1936, D/- 21-9-1937, which was a case from a different ' village Sonkh where the wajib-ul-arz was almost in identical terms, and Ganga Nath J. held that the custom being indefinite and uncertain it was invalid and unenforceable and dismissed the suit of the plaintiff zamindar.
4. In the case before us, the lower Court has held that it is proved that a uniform rate of 10 per cent. has been charged by the zamindar from 1900. In the case before Ganga Nath J., the suit had, in the first instance, been dismissed on the ground that according to the wajib-ul-arz and according to the plaintiff's own admission, the rate varied from 10 to 20 per cent. and the custom was thus indefinite and unenforceable. The plaintiff had appealed to the District Judge, but the appeal failed. On second appeal the case was remanded to allow the plaintiff an opportunity to prove that a fixed percentage of 10 per cent. was realised by the zamindar. The Munsif and the learned Civil Judge both held on remand that the plaintiff had failed to prove that he had been charging at a uniform rate. On the return of this finding Ganga Nath J. decided as stated above. We have not got before us the judgment by which the issue was remitted for a finding as to whether the zamindar was charging at a fixed percentage. In this case the finding being that the zamindar has charged at a uniform rate of 10 per cent. since 1900 the question that has arisen before us is whether the period from 1900 up till now can be deemed to be sufficient to create a legal liability to pay the amount claimed. Tindal C.J. in Tyson v. Smith (1838) 9 Ad. & El. 406 at page 1271 observed as follows:
It is an acknowledged principle that, to give validity to a custom which has been well described to be an usage, which obtains the force of law, and is, in truth, the binding law, within a particular district or at a particular place, of the persons and things which it concerns, it must be certain, reasonable in itself, commencing from time immemorial, and continued without interruption.
5. It is well settled that a custom to have the force of law must be immemorial, 'time whereof the memory of man runneth not to the contrary.' The question as to 'legal memory' has been fixed in England at A. D. 1189, the first year of the reign of Richard I. This was established by analogy with the period of limitation fixed by the Statute of Westminister, 1275, for the bringing of writs of right. In practice, however, it is not necessary for a party relying on a custom to prove that it actually existed since 1189. If a party setting up a custom has given evidence of its existence so far as witnesses could depose to, the Court will presume that the custom had always prevailed and was immemorial unless the other side can establish that there was a period between that date and 1189 when there was no such custom in existence. On proof, however, that the custom had not existed in 1189, the Courts could, not enforce it even though it may have existed for centuries. In India, there is, however, no such period definitely fixed by authority. In a judgment delivered by Grey C. J. of the then Supreme Court of Calcutta, on 21st November 1831, quoted in Sripati Roy's Tagore Law Lectures (1908), Customs and Customary Law in British India, it was held as follows:
In regard to Calcutta, I should say that the Act of Parliament in 1773, which established this Court, is the period to which we must go back to found the existence of a valid custom, and that after that date there can be no subsequent custom, nor any change made in the general laws of the Hindus unless it be by some regulation by the Governor-General in Council, which has been duly registered in this Court. In regard to the muffasil, we ought to go back to 1793, prior to that, there was no Registry of the Regulations and the relics of them are extremely loose and uncertain.
6. These dates have not been mentioned in other decisions. Courts have, however, accepted that a custom to have a force of law must be ancient and invariable : see Muhammad Ibrahim v. Ibrahim Rowther ('22) 9 A.I.R. 1922 P.C. 59, Kishori Lal v. S. Jiwan Lal ('23) 10 A.I.R. 1923 ALL. 242, Brijraj Saran Singh v. Basant Singh : AIR1929All561 and Bahadur v. Mt. Nihal Kuar ('37) 24 A.I.R. 1937 Lah. 451. In all these cases where custom was proved to have prevailed within living memory, it was held to be ancient and immemorial. In a case Garuradhwaja Prashad Singh v. Suparandhwaja Prashad Singh (1900) 23 All. 37) from this province which went upto the Privy Council and in which a question of a family custom was raised, their Lordships of the Judicial Committee considered that the evidence of unbroken custom for 80 years since the occupation by the British of the province was sufficient.
7. An examination of the cases mentioned above will show that where a party setting up a custom had given evidence to prove the existence of the custom during a reasonable length of time, the Courts have accepted the custom to be ancient and immemorial, unless the other side could prove that it had originated within time of memory and then, even though the custom may have existed in fact it was void in law, see the observation of Willis J., in Mayor Etc. of London v. Cox (1867) 2 H. L. C. 239 at p.258. Learned Counsel for the defendants-respondents has argued that on the finding that the zamindar has been claiming a uniform rate only from 1900, the custom, if any, must be deemed to have originated within time of memory and it could not therefore be said that it was immemorial. So far as the period prior to 1900 is concerned, he points out that the zamindar was charging at a variable rate, and as a custom must be certain the practice, if any, prevailing before 1900 could not be enforced in a Court of law as a valid custom.
8. Custom as a source of law has been well discussed in C. K. Allen's Law in the Making, Theodore Plucknett's Concise History of the Common Law. It is not necessary to set out here the discussion how Courts came to require that a custom should be immemorial, though Plucknett in his book (3rd Edn.) at p. 273 has quoted Bracton who relied on Azo that
a custom can be called long if it was introduced within 10 or 20 years, very long if it dates from 30 years and ancient if it dates from 40 years.
However, that may be, the rule requiring that a custom must be ancient and immemorial is applicable only to customs which are known as legal customs and the said rule has not been applied to a custom which has been called a conventional custom, better known as trade or local usages, see Halsbury's Laws of England, Hailsham Edition, vol. X, p. 5, para. 5 and p. 36, para. 48.
9. A legal custom can be divided into two subheads, viz. (i) local custom and (ii) general custom of the realm. General custom is part of the common law while a local custom is an exception to it and has to be strictly proved in the manner set out above. A conventional custom has been defined as
an established practice which is legally binding not because of any legal authority independently possessed by it, but because it has been expressly or impliedly interpreted in a contract between the parties concerned.... The law presumes that where persons enter into a contract in any matter in respect of which there exists some established usage they intend to contract with reference to that usage and to incorporate it as a term of the contract in the absence of any expressed indication of a contrary intention. This is so whether the contract is a commercial contract in a particular trade or market or a local contract, as for instance, between a landlord and a tenant.
In Halsbury's Laws of England, 2nd Edn. Vol. 10, p. 36, the same idea is expressed as follows:
A usage may exist...between parties bearing certain contractual or even domestic relationship to one another...within some local area however small.
10. To our mind, the case before us is that of a custom strictly so-called, but partakes of the nature of a conventional custom or usage. The zamindar is the owner of the site on which the house stands. He can give the land to the tenant on any terms he likes. If the terms on which the land is held are known there' is no difficulty. It is when these terms are not certain that difficulty arises. Ordinarily, in an agricultural village, a tenant has no right to transfer the house unless he does so with the consent of the zamindar. The zamindar may have given his consent in so many cases that it may be well recognized in the locality that the tenant can transfer the premises without the express1 consent of the zamindar and his consent may be presumed and in course of time it may become even impossible for the zamindar to object to the transfer. In this village it appears that it was recognized that the tenants will have a right to transfer but the transferee will have to pay something. The liability to pay something does not arise from custom by virtue of its own inherent authority but such a local usage must be deemed to be incorporated into agreements as terms thereof through the tacit consent of those who make them and when the ancestors of defendant 5 took the land from the zamindar they must have agreed to pay to him haq-i-zamindari which later, by common consent, became fixed at 10 per cent, and when defendant 5 sold the house to defendants 1 to 4 it would be deemed to have been gain agreed between the defendants that defendants 1 to 4 will be liable to pay the haq-i-zamindari to the plaintiff. It has been recognized that a mercantile usage need not be ancient. In Juggomohan Ghose v. Manickchund (1857-59) 7 M.I.A. 263 (P.C) at p. 282 their Lordships of the Judicial Committee observed:
The usage may be still in course of growth; it may require evidence for its support in each case; but in the result it is enough if it appear to be so well known and acquiesced in, that it may be reasonably presumed to have been an ingredient tacitly imported by the parties into their contract.
11. The case before us is not of a mercantile usage, but we cannot lose sight of the fact that this kind of local usage in India of the tenants' right to transfer their houses on land belonging to the zamindar or the right of the zamindar, as in this case, to charge a sum of money on such a transfer by the tenants, may be so well recognized and may become so well established that it is known to and observed by the people concerned. In Kuar Sen v. Mamman ('95) 17 ALL. 87, a Bench of this Court, composed of two very eminent Judges, Sir John Edge C.J. and Promoda Charan Banerji J. observed as follows:
We cannot in these Province's apply the principle of the English Common Law that a custom is not proved if it is shown not to have been immemorial. To apply such a principle as we have been urged by the counsel for the appellant to do would be to destroy many customary rights of modern growth in villages and other places. The Statute Law of India does not prescribe any period of enjoyment during which, in order to establish a local custom it must be proved that a right claimed to have been enjoyed as by local custom was enjoyed. And in our opinion it would be inexpedient and fraught with the risk of disturbing perfectly reasonable and advantageous local usages regarded and observed by all concerned as custom to attempt to prescribe any such period.
In another case reported in Gokul Dichit v. Maharaj Dichit ('05) 2 A.L.J. 790, Banerji and Richards JJ. held that a period of 43 years was enough to establish a custom. Learned Counsel for the respondents has tried to distinguish these cases on the ground that if a custom is proved to have existed then Courts can presume that the custom has always been in existence and was therefore ancient. But an examination of the decision in Gokul Dichit v. Maharaj Dichit ('05) 2 A.L.J. 790 will show that in that particular case the wajib-ul-arzes of 1862 and 1876 were relied upon to prove the custom which was contrary to the wajib-ul-arz of 1833, and their Lordships in a part of the judgment observed:
It is quite probable that a custom sprang up subsequently to 1833, and became an invariable custom so far back as 1862, when the wajib-ul-arz of that year was prepared by which a cosharer in the same thok acquired a preferential right of pre-emption. Certainly at the date of the suit there existed a custom under which the plaintiffs are entitled to preempt the property purchased by the appellant.
In this particular case, as we have already observed, the wajib-ul-arz of 1874 has been held to be and is clearly a record of custom. It is true that at that time there does not seem to have been a fixed rate at which the zamindar made his charge and it depended upon the haisiat of the house transferred, but it was recognised that the charge was to be between 5 and 50 per cent. Soon afterwards everybody concerned recognised that this 5 to 50 per cent. needed further modification and from 1900 the charge has been uniformly made at a rate of 10 per cent. It appears unreasonable to us that the zamindar who is the owner of the land and who as it has been well established in this case has always made some charge which may be taken to be as a consideration for his consent and which charge on the findings recorded by the Court below has been fixed during the last forty years at a uniform rate of 10 per cent. should be forced to admit a transferee, whom he may not like, absolutely free of charge. There is another way of looking at it. Under Section 37, Bengal, Agra and Assam Civil Courts Act, 12 of 1887, which reads as follows
(1) Where in any suit or other proceeding it is necessary for a civil Court to decide any question regarding succession, inheritance, marriage or caste or any religious usage or institution, the Mahomedan law in cases where the parties are Mahomedans and the Hindu law in cases where the parties are Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment, been altered or abolished.
(2) In cases not provided for by Sub-section (1) or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience.
a case like the present will have to be decided according to justice, equity and good conscience, and we certainly consider that it being well established from at least 1874 that the zamindar should be paid haq-i-zamindari and it being further established that this charge should be made uniformly at the rate of 10 per cent, from at least 1900, the zamindar should not be deprived of this amount on the technical ground that before 1900 his predecessors had not been charging at a fixed rate. We are of opinion that the finding recorded by the lower Court that the zamindars have always claimed at the rate of 10 per cent. from 1900 on every transfer made by a tenant is enough to give the plaintiff a right to maintain the suit. The decrees of the lower Courts should, therefore, be set aside and the plaintiff's suit for 10 per cent, of the purchase price be allowed.
12. The plaintiff has, however, claimed interest. We do not consider that the plaintiff was entitled to any interest. In this connexion we may refer to a case reported in Radhe Kishun v. Aditya Narain Singh : AIR1938All151 - where in similar circumstances this Court refused to grant any interest, and to a case of the Judicial Committee in B.N. Ry. Co. v. Ruttanji Ramji where their Lordships have set out the principles on which interest should be allowed in cases where there is no contract for payment of interest and interest is not payable under the Interest Act. We, therefore, set aside the decrees of the Courts below and allow this appeal in part and decree the plaintiff's suit for Rs. 87 only with proportionate costs to the parties in accordance with success and failure in all the Courts.