26 July 2020

Party who rely on existence of a custom, must plead and prove the same

It can be concluded from the above discussion that a person claiming a customary right to succeed to the office of mutawalli would have to show that the waqif intended for the office to devolve through a practice of hereditary succession. In the absence of any express directions in the waqfnama to this effect, the claimant would have to show that such practice has been in existence throughout the history of the trust, and not merely for a few generations, such that the waqif’s intention that the office should be hereditary can be presumed. The burden of proof would be higher with respect to a public waqf, such as the suit waqf in the instant case, than a family trust.[Para No.22]

Party who rely on existence of a custom, must plead and prove the same
   We may now consider what the principles governing the establishment of a custom under Muslim law are. It is a settled position of law that a custom in order to be legal and binding must be certain, reasonable and acted upon in practice for a long period with such invariability and continuity that it has become the established governing rule in a community by common consent. It is equally settled that it is incumbent upon the party relying on the custom to plead and prove it.
   In this regard, we may fruitfully refer to the following observations from Fyzee’s Outlines of Muhammedan Law (5th edn., 2008, Prof. Tahir Mahmood ed., p. 49) (for short “Fyzee”):
“First, the burden lies heavily upon the person who asserts to plead the custom relied upon and prove clearly that he is governed by custom and not by the general law. Secondly, as to the proof of custom, there is in law no presumption in favour of custom and the custom must be ancient, certain and not opposed to public policy.” (emphasis supplied) The leading case with respect to the requirements of proving a custom is the decision of the Privy Council in H.H. Mir Abdul Hussein Khan v. Bibi Sona Dero, AIR 1917 PC 181.

   Relying upon its previous decision in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, (1871­72) 14 Moo IA 570, the Council observed as follows:
“It is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable: and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.” (emphasis supplied)[Para No.23]
   Thus, we may conclude that while no person can claim the office of mutawalli merely by virtue of being an heir of the waqif or the original mutawalli, if they can show through a long­ established usage or custom that the founder intended that the office should devolve through hereditary succession, such usage or custom should be followed. Additionally, the practice would have to comply with the requirements which are generally applicable while proving a custom, i.e. it must be specifically pleaded, and should be ancient, certain, invariable, not opposed to public policy, and must be proved through clear and unambiguous evidence.[Para No.24]

Supreme Court of India

Aliyathammuda Beethathebiyyappur
Pattakal Cheriyakoya

(2019) 6 MLJ 464
(2019) 10 SCALE 263

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