BHIMASHYA AND ORS.versusSMT. JANABI @JANAWWA

A                            BHIMASHYA AND ORS.
                                      v.
                           SMT. JANABI @JANA WWA

                                DECEMBER 11, 2006

B        [DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.]


          Partition-Suit for-Owner of suit properties dying leaving behind two
    daughters-Suit for partition by one daughter claiming % share in properties-
C   Husband of·qther daughter claiming himself to be adopted son of deceased
    under the local custom, and certain properties as his self-acquired-High
    Court not accepting the case of adoption but holding one item of scheduled
    properties as defendant's self-acquired-Held, ·no specific plea relating to
    custom made nor issue in this regard framed nor evidence lead to prove
    custom-Order of High Court does not suffer from any.infirmity to warrant
D   interference-Jurisprudence-Custom-Connotation of

          Hindu Adoption and Maintenance Act, 1956:

         ss. 3 and 4-Adoption-Custom regarding-Held, custom qannot prevail
    against statutory law unless saved expressly or by necessary implication-
£   Hindu Law (Hindu Code)-Article 3.

           Respondent-plaintiff filed a suit for partition and separate possession
    of half share in the suit properties and for mesne profits. It was stated in the
    plaint tha! her father, '.F' had two wives and had two daughters from each wife;
    that 'F' died leaving behind the suit properties, which were ancestral
F   properties, and the two daughters, namely, the plaintiff and the wife of
    defendant no. 1, defendants no. 2 and 3 being sons of defendant no. 1, and as
    such the plaintiff was entitled to half share in the said properties. Defendant
    no. 1 filed written statement stating that he was the adopted son of 'F' and the
    suit-house properties were his self acquired properties. The trial court held
G   that defendant no. 1 was the adopted son of' F'. But, the first appellate court
    held that the claim of defendant no. 1 regarding adoption was untenable. In
    the second appeal the High Court gave partial relief to defendant no. 1 holding
    that item no. 3 of the scheduled properties was his self-acquired property,
    and rejected his claim of adopted son, as at the time of alleged adoption the

H                                         628
                    BHIMASHY Av. JANABl@JANA WWA                            629
Hindu Adoption and Maintenance Act, 1956 had come into operation and               A
defendant no. 1 being more than 15 years of age could not have been adopted.

      In the appeal filed by defendant no. 1 it was contended that, irrespective
of the 1956 Act, according to the custom prevalent in the area and the families
of the parties, the adoption was clear, legal and proper.
                                                                                   B
      Dismissing the appeal, the Court

      HELD: 1.1. It is well established principle of law that though custom
has the effect of overriding law which is purely personal, it cannot prevail
against a statutory law, unless it is thereby saved expressly or by necessary
implication. [637-F)                                                               C
      Mookka Kone v. Ammakutti Amma/, AIR (1928) Mad 299, (FB) referred
to.

     The Magistrate of Dunbar v. The Duchess of Roxburgha, (1835) 6 ER
1642, Noble v. Durell, (1789)100 ER 569 and Paxton v. Courtnay (1860) 2 F          D
& F 131, referred to.

       1.2. A "custom", in order to be binding, must derive its force from the
fact that by long usage it has obtained the force of law. Custom implies, not
that in a given contingency a certain course would probably be followed, but
that contingency has arisen in the past and that a certain course has been         E
followed, and it is not at all within the province of Courts to extend custom by
the process of deduction from the principles which seem to underline customs
which have been definitely established. [638-E, G, HJ

     Thakur Gokalchand v. Parvin Kumari, AIR (1952) SC 231; V.T.S.                 F
Chandrashekhara Mudalier v. Kulandeivelu Mudalier, AIR (1963) SC 185;
Hem Singh v. Harnam Singh, AIR (1954) SC 581; Kishori Lal v. Chaltibai,
AIR (1959) SC 504 and Amarendra Mansingh v. Sanatan Singh, AIR (1933)
PC 155, referred to.

      MR., Hammerton v. Honey, 24 WR 603, referred to.                             G
      Sir H.S. Gour's Hindu Code, Vol. I, 5th Edn. Halsbury, 4th Edn., Vol.
12, para 401, referred to.

       2.1. While an adoption may be a proper act, inspired in many cases by
religious motives, courts are concerned with an adoption, only as the exercise     H
    630                   SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.                -
A of a legal right by certain persons. (636-E-FJ
          Gherula/ v. Mahadeo Das, AIR (1959) SC 781, referred to.

          Fender v. St. John Mildmay (1938) AC 1, referred to.

B        Mulla's Principles of Hindu Law, Fifteenth Edition, pages 67; S.V. Gupta,
    Hindu Law Third edn. P. 899; Sir W. Jose, Manu Chapter IX, page 141; and
    Mayne's Hindu Law and Usage, Twelfth Edn. Page 329, referred to.

          2.2. In the instant case, there was no specific plea relating to custom
    though some vague and indefinite statements have been made in the plaint
C   and that too in a casual manner. No issue was framed and no evidence was
    laid to prove custom. That being so, the order of the High Court does not
    suffer from any infirmity to warrant interference. [639-C-D)

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5689 of2006.

D        From the Judgment and Order dated 25. I .2005 of the High Court of
    Karnataka at Bangalore in R.S.A. No. 369 of I 999.

          S.K. Kulkarni, M. Gireesh Kumar and Vijay Kumar for the Appellants.

          The Judgment of the Court was delivered by

E         Dr. ARIJIT PASAYAT, J. Leave granted.

          Challenge in this appeal is to the judgment rendered by a learned Single
    Judge of the Karnataka High Court dismissing the Second Appeal filed by the
    appellants who are defendants in the suit filed by the respondent as plaintiff.
    In the impugned judgment the High Court held that the stand taken by the
F   defendants that defendant No. I was the adopted son of one Fakirappa, was
    not established. However, it granted relief in respect of property at item No.3
    in the schedule to the plaint, which the first Appellate Court had held to be
    ancestral property of Fakirappa. High Court held that the said property is the
    self acquired property of defendant No. I and the plaintiff is not entitled to
G   any share in the said property. The parties are described in the manner they
    were arrayed in the suit filed by the plaintiff.

          The factual position, in a nutshell, is as follows:

          The plaintiff filed the suit for partition and separate possession of her
H   half share in the suit properties and for mesne profits averring that one
             BHIMASHYAv. JANABI@JANAWWA[PASAYAT,J.]                         631

Fakirappa, the propositus died on 19.3.1965. He had two wives, namely:              A
Bhimawwa, the· first wife and Bas.awwa, the second wife. Basawwa, died
about 35 years before filing of the suit. Fakirappa had two daughters namely,
Kallawwa, who was born to Bhimawwa, the first wife and Janabi, the plaintiff
who was born to the second wife Basawwa. The said Kallawwa is the wife
of defendant No. I while defendants 2 and 3 are the sons of defendant No. I.
It is further averred that the suit properties are the ancestral and joint family
                                                                                    B
properties and since Fakirappa died leaving behind the plaintiff and the wife
of the defendant No. I and defendant Nos. 2 and 3 are the sons of the I st
defendant, after the death of Fakirappa, the plaintiff is entitled to half share
in the suit schedule properties.

      The defendant No. I resisted the suit by filing the written statement
                                                                                    c
averring that the defendant No.I is the validly adopted son of the deceased
Fakirappa. He has been wrongly described in the plaint. Fakirappa and his
wife, Bhimawwa had validly adopted the defendant No. I on 28.3.1960 by
observing and perfonning all the necessary customary and religious ceremonies
including giving and taking and they have also executed a registered adoption       D
deed in favour of the defendant No. I. Suit house properties were not of the
ownership of the deceased Fakirappa. They are the self acquired properties
of defendant No. I and the plaintiff cannot claim any share in the same.
Averment made in the plaint that the plaintiff is the daughter of Fakirappa
through the second wife, is not correct and the plaintiff is put to strict proof    E
of the same. Since the death of Fakirappa, the defendants have been in
exclusive possession and enjoyment of the suit properties openly and without
anybody's obstruction as exclusive owners thereof. The plaintiff has been
ousted from the enjoyment of the suit properties since the death ofFakirappa.
The plaintiff having not taken any step towards asserting her right in respect
of the suit properties is not entitled to any relief in the suit.                   F
      The trial Court framed 11 issues and came to hold that defendant No. I
is the adopted son of Fakirappa. The present appeal does not relate to the
other issues and, therefore, we are not dealing with those issues in detail.
Questioning the conclusion of the trial Court that defendant No. I was the
adopted son of Fakirappa, an appeal was filed. The First Appellate Authority        G
held that the claim of adoption of defendant No. I is untenable and even when
there was a registered deed of adoption, the same was of no consequences
and the adoption, if any, had no sanctity in the eye of law. It also held that
the property described as Item No.3 was ancestral property. The defendants
preferred an appeal under Section I 00 of the Code of Civil Procedure, 1908         H
    632                   SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A (in short 'the CPC') questioning correctness of the First Appellate Court's
    conclusions. The High Court, by the impugned judgment, as noted above,
    granted partial relief.

         So far as the question of adoption is concerned, it was held that
   appellant No.1 was married to the daughter of Fakirappa, the adoption was
B ·claimed to have b~en made on 28.3.1960 and the adoption deed was registered
   on 31.3 .1960 which was at a time when The Hindu Adoption and Maintenance
   Act, 1956 (in short 'the Act') was in operation. The defendant No. l was more
   than 15 years of age and, therefore, could not have been adopted and,
   therefore, his adoption, if any, cannot be recognized in law. Relief was granted
C in respect of Item No.3 property.
           In support of the appeal, learned counsel for the appellant submitted
    that though the Act was in operation when the adop~ion took place, it is really
    of no relevance because according to the customs prevalent in the area and
    the families of appellants, the adoption is clear, legal and proper.
D
          There is no appearance on behalf of the respondent in spite of notice.

            It is to be noted that no issue regarding custom was framed by the Trial
    Court. But because of the finding recorded by the trial Court, the First
    Appellate Court dealt with it. The High Court has categorically noticed that
E   there was no pleading regarding' custom and no evidence in that regard was
    led. Learned counsel for the appellant, with reference to certain observations
    made by the Trial Court, submitted that the question was very much in the
    minds of the parties and though no specific issue was framed, yet, the
    evidence laid clearly established the claim regarding adoption. It is submitted
    that judicial notice can be taken note of the fact that in the area to which the
F   parties belong there is no prohibition on adoption in the manner done and
    it is recognized and permissible under the custom to make an adoption, as has
    been done in the present case.

          It would be desirable to refer to certain provisions of the Act and the
G Hindu Code which governed the field prior to the enactment of the Act,
    Section 3(a) of the Act defines 'custom' as follows:

            "3. Definitions - In this Act, unless the context otherwise requires.-

            (a) the expressions, 'custom' and 'usage' signify any rule which,
            having been continuously and unifonnly observed for a long time, has
H
-               BHIMASHYA v. JANABI@JANA WWA [PASA YAT, J.)

           obtained the force of law among Hindu3 in any local area, tribe,
                                                                                633
                                                                                       A
           community, group or family:

            Provided that the rule is certain and not unreasonable or opposed to
            public policy; and

           Provided further that, in the case of a rule applicable only to a family,   B
           it has not been discontinued by the family:"

          Section 4 provides that any text, rule or interpretation of Hindu Law or
    any custom or usage as part of that law in force immediately before the
    commencement of the Act shall become inoperative with respect to any matter
    for which provision was made in the Act except where it was otherwise C
    expressly provided. Section 4 gives overriding application to the provisions
    of the Act. Section 5 provides that adoptions are to be regulated in terms of
    the provisions contained in Chapter II. Section 6 deals with the requisites of
    a valid adoption. Section I I prohibits adoption in case it is of a son, where
    the adoptive father or mother by whom the adoption is made has a Hindu son, -
    son's son, or son's son's son, whether by legitimate blood relationship or by D
    adoption, living at the time, of adoption. Prior to the Act under the old Hindu
    Law (Hindu Code) Article 3 provides as follows:

           "Article 3-(1) A male Hindu, who has attained the age of discretion
           and is of sound mind, may adopt a son to himself provided he has            E
           no male issue in existence at the date of adoption.

           (2) A Hindu who is competent to adopt may aut.horise either his (i)
           wife or (ii) widow (except in Mithila) to adopt a son to himself."

          Therefore, prior to the enactment of the Act also adoption of a son
    during the lifetime of a male issue was prohibited and the position continues      F
    to be so after the enactment of the Act. Where a son became an outcast or
    renounced Hindu religion, his father became entitled to adopt another. The
    position has not changed after enactment of Caste Disabilities Removal Act
    (XXI of I 850), as the outcast son does not retain the religious capacity to
    perform the obsequies rites. In case parties are governed by Mitakshara Law,       G
    additionally adoption can be made if the natural son is a congenital lunatic
    or an idiot. The question, therefore, is whether by custom, the prohibition
    could be overcome. Relevant provisions, therefore, is whether by custom as
    defined in the Hindu Code are as follows:

           "'Custom defined : - Custom is an established practice at variance          H
    634
                                                                                          ...
                           SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A           with the general law.

            Nature of custom - A custom varying the general law may be a
            general, local, tribal or family custom.

            Explanation I. - A general custom includes a custom common to any
B           considerable class of persons.

            Explanation 2. - A custom which is applicable to a locality, tribe, sect
            or a family called a special custom.

            Custom cannot override express law-

C           (I) Custom has the effect of modifying the general personal law, but
            it does not override the statute law, unless it is expressly saved by
            it.

            (2) Such custom must be ancient, uniform, certain, peaceable,
            continuous and compulsory.
D
            Invalid custom - No custom is valid if it is illegal, immoral, unreasonable
            or opposed to public policy.

            Pleading and proof of custom--( I) He who relies upon custom varying
            the general l~w must plead and prove it.
E           (2) Custom must be established by clear and unambiguous evidence."

            (See Sir HS. Gour's Hindu Code, Volume I. Fifth Edition.)

          Custom must be ancient, certain and reasonable as is generally said. It
    will be noticed that in the definition in Cl. (a) of Section 3 of tlie Act, the
F   expression 'ancient' is not used, but what is intended is observance of
    custom or usage for a long time. 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' has not been strictly applied to Indian
    conditions. All that is necessary to prove is that the custom or usage has
G   been acted upon in practice for such a long period and with such invariability
    and continuity as to show that it has by common consent been submitted to
    as the established governing rule in any local area, tribe, community, group
    9ffamily. Certainty and reasonableness are indispensable elements of the rule.
    For determination of the question whether there is a valid custom or not, it
    has been emphasized that it must not be opposed to public policy.
H
             BHIMASHYA v. JANABl@JANAWWA [PASA YAT, J.]                    635

       The origin of custom of adoption is lost in antiquity. The ancient Hindu    A
law recognized twelve kinds of sons of whom five were adopted. The five
kinds of adopted sons in early times must have been of very secondary
 importance, for, on the whole, they were relegated to an inferior rank in the
 order of sons. Out of the five kinds of adopted sons, only two survive today;
namely, the Dattaka from prevalent throughout India and the Kritrima for           B
confined to Mithila and adjoining districts. The primary object of adoption
was to gratify the means of the ancestors by annual offerings and, therefore,
it was considered necessary that the offerer should be as much as possible
a reflection of a real descendant and has to look as much like a real son as
possible and certainly not be one who would never have been a son. Therefore,
the body of rules was evolved out of a phrase of Saunaka that he must be           C
the reflection of a son. The restrictions flowing from this maxim had the effect
of eliminating most of the forms of adoption. (See Hindu Law by S. V. Gupta.
Third edition at pages 899 - 900). The whole law of Dattaka adoption is
evolved from two important texts and a metaphor. The texts are of Manu and
Vasistha, and the metaphor that of Saunaka. Manu provided for the identity
of an adopted son with the family into which he was adopted. (See Manu             D
Chapter IX, pages 141-142, as translated by Sir W. Jones). The object of an
adoption is mixed, being religious and secular. According to Mayne, the
recognition of the institution of adoption in early times had been more due
to secular reasons than to any religious necessity, and the religious motive
was only secondary; but although the secular motive was only dominant, the         E
religious motive was undeniable. The religious motive for adoption never
altogether excluded the secular motive. (See Mayne's Hindu Law and Usage,
Twelfth Edition, page 329.).

      As held by this Court in V. T.S. Chandrashekhara Mudalier v.
Kulandeivelu Muda/ier, AIR (1963) SC 185, substitution ofa son for spiritual       F
reason is the essence of adoption, and consequent devolution of property is
mere accessory to it; the validity of an adoption has to be judged by spiritual
rather than temporal considerations; and, devolution of property is only of
secondary importance.

      In Hem Singh v. Harnam Singh, (AIR 1954 SC 581 ), it was observed by G
this Court that under the Hindu Law adoption is primarily a religious act
intended to confer spiritual benefit on the adopter and some of the rules have,
therefore, been held to be mandatory, and compliance with them regarded as
a condition of the validity of the adoption. The first important case on the
question of adoption was decided by the Privy Council in. the case of H
    636                    SUPREME COURT REPORTS (2006) SUPP. 10 S.C.R.

A Amarendra Mansingh v. Sana/an Singh, AIR (1933) PC 155. The Privy Council
    said:

             "Among the Hindus, a peculiar religious significance has attached to
             the son through Brahminical influence, although in its origin the
             custom of adoption was perhaps purely secular. The texts of the
B            Hindus are themselves instinct with this doctrine of religious
             significance. The foundation of the Brahminical doctrine of adoption
             is the duty which every Hindu owes to his ancestors to provide for
             the continuance of the line and solemnization of the necessary rites."

            With these observations it decided the question before it, viz. that of
C ·setting the limits to the exercise of the power of a widow to adopt, having
    regard to the well established doctrine as to the religious efficacy of sonship.
    In fact the Privy Council in that case regarded the religious motive as dominant
    and the secular motive as only secondary.

D         This object is further amplified by certain observations of this Court.
   It has been held that an adoption results in changing the course of succession,
   depriving wife and daughters of their rights, and transferring the properties
   to comparative strangers or more remote relations. (See Kishori Lal v. Chaltibai,
   AIR (1959) SC 504). Though undeniably in most of the cases motive i~
   religious the secular motive is also dominant present. We are not concerned
E much with this controversy and as observed by Mayne it is unsafe to emb~rk
   upon an enquiry in each case as to whether the motives for a particular
   adoption were religious or secular and an intermediate view is possible that
   while an adoption may be a proper act, inspired in many cases by religious
   motives, courts are concerned with an adoption, only as the exercise of a legal
   right by certain persons. The Privy Council's decision in Amerendra
F Mansingh's case (supra) has reiterated the well established doctrine as to the
   religious efficacy of sonship, as the foundation of adoption. The emphasis
   has been on the absence of a male issue. An ad.option may either be made
   by a man himself or by his widow on his behalf. The adoption is to the male
   and it is obvious that an unmarried ;woman cannot adopt. For the purpose of
G. adoption is to ensure spiritual benefit for a man after his death by offering
   of oblations and rice and libations of water to the manes periodically. Woman
   having no spiritual need to be satisfied, was not allowed to adopt for herself..
   But in either case it is a condition precedent for a valid adoption that he
   should be without any male issue living at the time of adoption.

H           Under the old law, 'male issue' was indicated and it was held at it was
             BHIMASHYA v. JANABI@JANA WWA [PASA YAT, J.)                     637
to be taken in the wide sense peculiar to the term in Hindu Law to mean three       A
direct descendants in the male line. (See Mayne's Hindu Law and Usage
referred to above at page 334). Even if for the sake of argument in the instant
case, it is accepted that a custom was prevalent authorising adoption in the
presence of a male issue, yet it being contrary to the very concept of adoption
cannot be said to have any force. Adoption is made to ensure spiritual benefit      B
for a man after his death. Public policy is not defined in the Act. However,
it connotes some matter which concerns the public good or the public interest.
No strait-jacket formula can be laid down to hold what is for the public good
or for the public interest, or what would be injurious or harmful to the public
good or public interest. What is public good must be inconsonance with
public conscience. Speaking about 'public policy', Lord Atkin said, "the            C
doctrine should only be invoked in clear cases in which the harm to the public
is substantially incontestable, and does not depend upon the idiosyncratic
inference ofa few judicial minds. (See Fender v. St. John Mildmay, (1938) AC
I). The observations were quoted with concurrence in Gherulal v. Mahadeo
Das, AIR (1959) SC 781 ). Though it cannot be disputed as a general proposition     D
that a custom may be in derogation of Smriti law and may supe~sede that Jaw
where it is proved to exist, yet it is subject to the exception that it must not
be immoral or opposed to public policy and cannot derogate from any statute
unless the statute saves any such custom or generally makes exception in
favour of rules of customs. (See: Mu Ila's Principles of Hindu Law, Fifteenth
Edition, at pages 67-68). Nothing has been shown to me that an exception            E
of this nature existed in the old Hindu Law. The ancient texts provide for a
custom, but imperate it not to be opposed to Dharma, that means as already
pointed out it should not be immoral and opposed to public interest.

      It is well established principle of Jaw that though custom has the effect
of overriding law which is purely personal, it cannot prevail against a statutory   F
law, unless it is thereby saved expressly or by necessary implication. (See
The Magistrate of Dunbar v. The Duchess of Roxburgha, (1835) 6 ER 1642),
Noble v. Durell, (1789)100 ER 569). A custom may not be illegal or immoral;
but it may, nevertheless, be invalid on the ground of its unreasonableness.
A custom which any honest or right-minded man would deem to be unrighteous          G
is bad as unreasonable. [See: Paxton v. Courtnay, (1860) 2 F & F 131)].

       In Mookka Kone v. Ammakutti Ammal, AIR (l 928) Mad 299 FB, it was
held that where custom is set up to prove that it is at variance with the
ordinary law, it has to be proved that it is not opposed to public policy and
that it is ancient, invariable, continuous, notorious, not expressly forbidden      H
    638                    SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A   by the legislature and not opposed to morality or public policy.

           A custom is a particular rule which has existed either actually or
    presumptively from time immemorial, and has obtained the force of law in a
    particular locality, although contrary to or not consistent with the general
    common law of the realm. A custom to be valid must have four essential
B   attributes. First, it must be immemorial; secondly, it must be reasonable;
    thirdly, it must have continued without interruption since its immemorial
    origin, and, fourthly, it must be certain in respect of its nature generally as
    well as in respect of the locality where it is alleged to obtain and the persons
    whom it is alleged to affect. (See HALSBURY, 4th Edn., Vol. 12, para 401, p.2
C   & para 406, p.5).

           Is a Jaw not written, established by long usage, and the consent of our
    ancestors? No law can oblige a free people without their consent: so wherever
    they consent and use a certain rule or method as a law, such rule etc., gives
    it the power of a law and if it is universal, then it is common law: if particular
D   to this or that place, then it is custom. Custom is one of the main triangles
    of the laws of England; those laws being divided into Common Law - Statute
    Law, and Custom. India is a land where there are very many customs
    appropriate to certain areas qf territory; families or castes.

           A "custom", in order to be binding, must derive its force from the fact
E   that by long usage it has obtained the force of law, but 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 run!leth not to the contrary" should not be
    strictly applied to Indian Conditions. (See Thakur Gokalchand v. Parvin
    Kumari, AIR (1952) SC 231 ).

F         "A custom is local Common Law. It is Common Law because it is not
    Statute Law; it is Local Law because it is the law of a particular place, as
    distinguished from the general Common Law. Local Common Law is the law
    of the country (i.e., particular place) as it existed before the time of legal
    memory" (per Jessel, MR.; Hammerton v. Honey, 24 WR 603).
G
          Custom implies, not that in a given contingency a certain course would
    probably be followed, but that contingency has arisen in the past and that
    a certain course has been followed, and it is not at all within the province of
    Courts to extend custom by the process of deduction from the principles
    which seem to underline customs which have been definitely established.
H
                 BHIMASHY Av. JANABI@JANA WWA [PASAYA T, J.]                     639

           Custom is authoritative, it stands in the place of law, and regulates the    A
     conduct of men in the most important concerns of life: fashion is arbitrary and
     capricious, it decides in matters of trifling import: manners are rational; they
     are the expressions of moral feelings. Customs have more force in a simple
     state of society.

           Both practice and custom are general or particular but the former is         B
     absolute, the latter relative; a practice may be adopted by a number of
     persons without reference to each other; but a custom is always followed
     either by imitation or prescription: the practice of gaming has always been
     followed by the vicious part of society; but it is to be hoped for the honour
     of man that it will never become a custom.
                                                                                        c
           There was no specific plea relating to custom though some vague and
     indefinite statements have been made in the plaint and that too in a casual
     manner. No issue was framed and no evidence was laid to prove custom.

           That being so, the High Court's order does not suffer from any infirmity     D
     to warrant interference. The appeal fails and is dismissed but, in the
     circumstances, without any order as to costs.

     RP.                                                         Appeal dismissed.
..