GIREESHCHANDRA BHATTACHARJYA Vs. RABEENDRANATH DAS

JUDGEMENT

(1.) This is an appeal from a decision of the third Additional Subordinate Judge, Sylhet, reversing a decision of the Munsif, First Court, Habiganj. The suit was one for pre-emption and for certain other reliefs. The learned Munsif dismissed the suit on the ground that the necessary formalities had not been complied with and that there had been delay on the part of the plaintiff. The lower appellate Court came to the conclusion that all the necessary formalities had been complied with and there had been no unreasonable delay and he agreed with the finding of the learned Munsif that there is a custom of pre-emption among the Hindus in the District of Sylhet. The only point seriously argued before us was upon the question whether or not the lower appellate Court was right in holding that such a custom does exist among the Hindus in that district. The other questions raised are all questions of fact and are concluded by the findings of the lower appellate Court. It was argued before us on behalf of the appellants that there was no evidence before the lower appellate Court on which the learned Subordinate Judge could properly find that the custom of pre-emption does exist amongst the Hindus of the District of Sylhet and he further urged that the matter is still an open question and must be decided in every case which comes before the Court solely upon the evidence given in that particular case.

(2.) We are not disposed to hold, even upon that view of the matter, that the learned Subordinate Judge was wrong in coming to the conclusion at which he arrived, because he did in fact have before him two documents which were marked as Exs. 7 and 8-one of which was a judgment of this Court and the other a judgment of a Munsif. Both of them decided that, in fact, the custom of pre-emption must be taken to exist amongst the Hindus of the District of Sylhet. We desire however to deal with this matter on a much broader basis. If the contention of the learned advocate for the appellants is correct, it would follow that, even at this time of day, it would be necessary for the plaintiff, in every case where the customary right of preemption is asserted, to prove his case upon this point to the satisfaction of the Court before whom the matter is being tried. If that were so, it is difficult to see at what point the matter would be so concluded that this question would pass out of the region of controversy. As against the contention put forward on behalf of the appellants, it urged on behalf on the respondent that this question of the existence of the right of pre-emption amongst the Hindus of Sylhet is no longer one to be decided on the evidence given in the particular case, because the existence of such a custom has already been judicially recognized in such a way as to put the question outside the region of evidence and to put it into the category of a rule of law.

(3.) It is a well known principle that a custom becomes a law when it receives judicial recognition. No doubt, before a custom can have the force of law it must come up to a certain standard of general reception. A custom of that kind when judicially recognized has the force of law. I may recall that Professor, Holland in his well known treatise on jurisprudence goes a step further than that even, for he is of opinion that a custom may be law even before it receives judicial recognition and all that the Court does is to decide the fact that such a custom exists. Without pausing to consider this view of the matter however it is sufficient for us to say that once the Court has decided, as a fact, that a custom does exist then that custom obtains the force of law. The actual point we now have to decide was considered by this Court and a judicial decision given with regard to it in the case of Jadu Lal V/s. Sahu Janki Koer (1908) 35 Cal 575, where it was held that when existence of the custom, under which Hindus have the same right of preemption under the Mahomedan law as Mahomedans in any district, is generally known and judicially recognized it is not necessary to assert or prove it. This case went on appeal to the Judicial Committee of the Privy Council and there Mr. Ameer Ali made some observations which in effect recognize the principle just enunciated Jadu Lal v. Janki Koer (1912) 39 Cal 915. As long ago as the year 1864 similar observations were made by Bayley and Macpherson, JJ. in the case of Inder Narain V/s. Mahomed Nazirooddeen (1864) 1 WR 234. There the learned Judges in the course of their judgment said: In the first place we observe as to the question of custom, that the fixed rule of law, as laid down by the High Court, is that where the custom of the right of pre- emption under Mahomedan law has been adopted by Hindus in any particular district, it shall be there recognized as a legal custom.