1. The question raised by Dr. Katju in this second appeal is that there was evidence in the case to prove that in respect of the sale of a house in Benares the Municipal Board could claim haq-i-chaharum as it was alleged that there was a custom in shahr khass where the house is situated that the landlord is entitled to claim one-fourth of the sale price, and that in second appeal this Court is entitled to examine the evidence to see whether he has proved the alleged custom. Mr. Iqbal Ahmad appearing on behalf of the respondents contends that where a Court has found on the evidence before it that the alleged custom is not proved, that finding is a finding of fact which is binding on us in second appeal.

2. In support of his contention Mr. Iqbal Ahmad has referred us to the case of Shakira Bibi v. Nandan Boy A.I.R. 1922 All. 241, and the decision of this Court in Munshi v. Sahu Kedar Nath L.P. A. No. 2 of 1928.

3. Dr. Katju has, in support of his contention that the finding of the learned Judge of the Court below is not a finding of fact, referred us to the case of Taj-ammul Husain v. Banwari Lal A.I.R. 1926 All. and the case of Rafiq v. Shankar Lal A.I.R. 1925 All. 718.

4. There appears to be a clear conflict of decisions of this Court on the point as to whether when the lower appellate Court holds that a custom is not proved this Court can or cannot examine the evidence to see whether there was sufficient evidence from which the Court below should have come to the conclusion that the alleged custom had been proved.

5. We therefore direct that this case be laid before the Hon'ble the Chief Justice to constitute a larger Bench for the decision of the appeal.

King, J.

6. The chief point for determination is whether the finding of the lower appellate Court, that the existence of an alleged local custom has not been proved, is a finding of fact binding upon this Court in second appeal.

7. On 5th December 1918 one Nepal sold his house, situated in the city of Benares, to Kanhiya Lal (defendant l). The Municipal Board of Benares, as owner of the site of the house, brought the suit, out of which this appeal arises, against the buyer (defendant l). and the representatives of the seller (defendants 2 and 3) claiming one-fourth of the sale price (zar-i-chaharum) on the basis of a local custom alleged to prevail throughout the city of Benares.

8. The principal defence was that the house is situated in the shahr khass (city proper) and the alleged custom of zar-i-chaharum does not prevail in the shahr khass, although it may prevail in certain mauzas which were formerly rural areas but have now been absorbed and included in the Municipal, area. The trial Court found upon the evidence that no custom of realizing zar-i-chaharum exists in shahr khass, and dismissed the suit.

9. The plaintiff appealed to the District Judge who, after remanding the case for findings upon certain issues, agreed with the trial Court in finding that the plaintiff had failed to prove the existence of the alleged custom in the mohalla in dispute, namely, Mohalla Kucha Champa Shahid which is in the shahr khass.

10. The plaintiff now comes to this Court in second appeal and contends that the Court below was wrong in finding that the alleged custom did not prevail in the locality in dispute.

11. For the respondent it is argued that the finding of the Court below, as to the non-existence of the alleged custom, is a finding of fact which is binding upon this Court in second appeal. The appellant maintains that the question of the existence of a custom is a mixed question of law and of fact. So far as the facts are concerned the findings of the Court below, if properly arrived at, must be accepted; but the question whether upon the facts so found the existence of the custom is, or is not, proved is a question of law. The High Court therefore can and should examine the evidence and decide whether the evidence is not sufficient to prove the alleged custom. Bach party cites numerous authorities in support of his contention.

12. The difficulty in deciding which of the two conflicting contentions is correct seems to us to arise partly from an ambiguity in the meaning of the word "custom." In one sense it means simply a usual practice. In another sense it means an established practice or usage having the force of law. That the inhabitants of a certain locality have, in certain circumstances, usually acted in a certain manner is, we think, a "fact." It is a state of things, or a relation of things, capable of being perceived by the senses. It is impossible to determine whether a given finding is or is not a finding of fact unless we assign to the word "fact" a definite and uniform meaning, and we think that the word "fact" should be understood to have the meaning assigned to it in Section 3, Evidence Act. So a finding that it is not proved that owners of houses in Mohalla Kucha Champa Shahid have usually, upon occasions of the sale of their houses, paid zar-i-chaharum to the owner of the site, is in our opinion a finding of fact. If it is found that zar-i-chaharum has usually bean paid on demand then a further question arises whether the usual practice is sufficiently ancient, uniform, certain, uninterrupted and so forth to constitute a binding custom, i. e. a custom having the force of law. This latter question must be a question of law. That a practice prevails is perceptible by the senses and therefore a ' fact"; that the usual practice is legally binding is not a "fact." So the question whether it is legally binding is a question of law.

13. These propositions are abundantly supported by the rulings of their Lordships of the Privy Council. In Mohesh Chun-der Dhal v. Satrughun Dhal [1902] 29 Cal. 343 the question was whether the custom of lineal primogeniture had been proved as the rule of succession to an impartible raj. The Privy Council observed that the High Court were right in "considering that the question was merely a question of fact."

14. In Muhammad Kamil v. Imtiaz Fatima [1909] 3l All. 557 the question was whether inheritance was governed by a family custom excluding female heirs. Their Lordships remarked: "The existence of such a custom is a question of fact...."

15. In Rup Chand v. Jambu Prasad [1910] 32 All. 247 the question was whether a custom, applicable to the parties, authorizing the adoption of a married boy, had been established. Their Lordships laid down that this is strictly speaking a pure question of fact determinable upon the evidence given in the case.

16. Similarly in Anant Singh v. Durga Singh [1910] 32 All. 363, where the question was whether a family custom had been established according to which a stepbrother was entitled to succeed equally with a full brother, their Lordships observed: "The question involved was one of fact only."

17. Lastly in Palaniappa Chetty v. Sree-math Devasikamony Pandara Sannadhi A.I.R. 1917 P.C. 33, where the question was whether a local custom had been proved, authorizing a shebait to alienate debuttar lands at a fixed rent, irrespectively of legal necessity or benefit to the estate, and two successive Courts had found the custom to be proved, the Judicial Committee remark:

No doubt two findings upon questions of pure fact must be accepted by this Board, but questions of the existence of ancient custom are generally questions of mixed law and fact; the Judge first finding what were the things actually done in alleged pursuance of custom, and then determining whether these facts so found satisfy the requirements of the law. This latter is a question of law not 'fact'.

18. This exposition of the law by the highest authority is strongly relied upon by the appellant, but we cannot read it as supporting the contention that whenever the question is whether an ancient custom has been proved to exist then the High Court in second appeal can treat the whole question as a question of law and satisfy itself, by examination of the entire evidence, whether the finding of the Court below as to the existence or non-existence of the alleged custom, is in accordance with the weight of evidence. We take the pronouncement to mean that a finding that an ancient custom exists involves the determination of two questions. The first question is whether the alleged practice prevails or is usually followed. This is a question of fact. If the finding is in the affirmative then a second question arises, whether the prevailing practice has the essential attributes of a custom having the force of law. This second question is a question of law, not of fact. If the finding upon the first question is in the negative then no question of law arises for determination. A finding that a custom" does not exist may however involve the determination of both questions. The Court of first appeal may hold that the practice does prevail but it is not sufficiently ancient, or uniform, or uninterrupted etc. to constitute a custom modifying the ordinary law. In such a case there would be a question of law for determination in second appeal.

19. The Privy Council decisions seem to us so clear and consistent on the point in dispute that it might seem unnecessary to discuss the rulings of the High Courts in India, but as many such rulings have been cited before us we will refer to those which are most directly applicable.

20. The appellant relies strongly upon Kumarappa Reddi v. Manavala Goundan [1918] 41 Mad 374 decided by a Full Bench of the Madras High Court. The existence of a local custom was in dispute and two successive Courts answered the question in the negative. The Full Bench held that they were precluded in second appeal from interfering with the findings of actual facts from which the existence of the custom might be inferred; but the inference as to the existence, and the decision as to the validity of the custom are matters of law revisable by the High Court in second appeal. They expressly overruled Kakarla Abbaya v. Venkata Papayya Rao [1906] 29 Mad. 24, which laid down that where a question of custom is concerned the High Court in second appeal should examine the evidence bearing upon it and should consider the credibility of the evidence relied on and the weight duo to it. Wallis, C. J., expressly hold that the High Court has no larger powers of interference with findings as to custom, in so far as they are findings of fact, than with any other findings of fact. The learned Judges held that, on the facts found by the District Judge, the existence of the custom in the estate was proved. It seems that they were of opinion that the District Judge's findings of fact were, to some extent, vitiated by errors of law and therefore liable to interference in second appeal. It must be observed that the District Judge held that the custom used to prevail but it had been discontinued in all but a small portion of the lands in suit. We think this ruling is no clear authority for the view that a finding, that an alleged practice does not prevail and never has prevailed in a given area, is a finding of law and not a finding" of fact.

21. The appellant also cites the Full Bench ruling of this High Court, Ram Bilas v. Lal Bahadur [1908] 30 All. 311 but we do not think that it supports his contention. It was held that where a question arises as to the existence or non-existence of a custom and the lower appellate Court has acted upon illegal evidence or on evidence legally insufficient to establish the custom, then the question is one of law and the High Court is entitled in second appeal to consider whether the finding is based upon sufficient evidence. In that case the Court below found the custom proved. In such cases the question of law necessarily arises whether the prevailing practice has the essential attributes of a legally binding custom. When their Lordships speak of evidence legally insufficient to establish a custom, we think they mean insufficient to establish a custom having the force of law i. e. insufficient to establish the legal requirements of such a custom.

22. In Hazari Dulaya v. Janki [1909] 3 I.C. 6 and Rafiq v. Shankar Lal A.I.R. 1925 All. 718, it was held that the question of the existence or non-existence of a custom was a question of law or a mixed question of law and fact and the High Court in second appeal can consider whether the finding is based upon sufficient evidence. In these cases however the point was not argued.

23. In Ali Husain v. Mazahir Husain A.I.R. 1924 All. 477, the point was argued and it was held by a single Judge that it is always open to the High Court in second appeal to consider whether a finding on custom was based on 'sufficient evidence. This ruling purports to follow Ram Bilas v. Lal Bahadur but seems to go further and we cannot reconcile it with the Privy Council decisions.

24. On the other hand we have numerous High Court decisions to the effect that a finding as to the existence or non-existence of a custom is essentially a finding of fact.

25. The question is very fully discussed in Kailash Chandra Datt v. Padma Kishore Boy [1918] 45 Cal. 285 in which it was held that the question whether the facts found in any given instance prove the existence of the essential attributes of a custom is a question of law; the question whether such a state of facts has been proved by the evidence is merely a question of fact. This appears to us to lay down the law correctly, in the light of Privy Council rulings.

26. Similar opinions are expressed' by learned Judges of this Court in Hashim Ali v. Abdul Rahman [1906] 28 All. 698, Baru Mal v. Tansukh Rai [1915] 37 All. 524, Shakira Bibi v. Nandan Roy A.I.R. 1922 All. 241, Munshi v. Sahu Kedar Nath Second Appeal No. 1356 of 1927 decided on 28th October 1927 and confirmed in Munshi v. Sahu Kedarnath and Ram Saran Das v. Pearey Lal A.I.R. 1931 All. 104.

27. We think the preponderance of judicial opinion establishes the propositions that a finding as to the existence or non-existence of a custom, in so far as it is a finding that a certain practice does or does not prevail, is a finding of fact. The question whether a prevailing practice has the essential attributes of a legally binding custom is a question of law.

28. In accordance with these propositions we have to consider how far we are entitled in second appeal to interfere with the findings of the Court below. The District Judge finds that it is not proved that the practice of zarichaharum ever prevailed in mohalla Kucha Champa Shahid. Not a single instance of the realization of zarichaharum in that mohalla was proved. We think this must be held to be a finding of fact binding upon this Court in second appeal unless it can be shown that the finding is vitiated by some error of law.

29. Dr. Katju has forcibly argued for the appellant that the finding of the Court below should be reversed as being vitiated by errors of law. One important branch of evidence consisted of a number of kabuliyats executed in favour of the Collector or the Municipal Board. The appellant relied on these as containing admissions of liability to pay zarichaharum. The Court below remarked that they are contracts and "do not refer to a custom whereby the dues are realized." We find that the learned Judge must have completely misread or ignored certain kabuliyats which contain clear references to the custom. Ordinarily we should have sent certain issues to the Court below for recording its findings, but as the whole of the evidence has been laid before us by the advocates for the parties, we proceed to examine it.

30. Serial No. 21 (of the appellant's list of documents) is a kabuliyat of the year 1873 relating to the lease of a plot in Mohalla Gyan Bapi (shahr khass) for building purposes. The lessee states:

When I or my successors sell the materials of the house then out of the sale price we shall deposit to the Municipality one-fourth share on account of the right (haqq) of the Municipality.

31. This is a clear recognition of the customary right of the Municipality to zarichaharum. The same language is to be found in serials 22 and 23 and other kabuliyats also.

32. Serials 103 to 110 (of the respondent's list of documents). Exs. 79 to 86 are kabuliyats of the years 1859 to 1864 in favour of the Collector. In these the lessee recites:

if we sell the materials of the house we shall deposit in the treasury one-fourth as haqq za-mindari in pursuance of the custom prevailing in the city.

33. The custom could not have been recognized in clearer terms. Two of these leases relate to Bengali Tola which is a mohalla of shahr khass. The learned Judge was therefore clearly under a misapprehension when he said that the kabuliyats do not refer to the custom. We think the misreading or ignoring of important documentary evidence amounts to a substantial error or defect in the procedure within the meaning of Section 100 (1) (c), Civil P.C., and justifies this Court in reversing the finding if we hold such reversal justified on the merits.

34. Another substantial error in procedure was to place reliance upon an opinion expressed by the law committee of the Municipality in their resolution of 4th July 1908. We do not know the names of the members of the committee. None of them were called as witnesses. We think their opinion is inadmissible in evidence for the purpose of proving that the custom does not prevail.

35. As to the absence of proof of realizations we think the Judge was wrong in supposing that the Collector would exercise supervision over the collection of dues in respect of nazul land made over to the Municipality for administration and control. The suggestion that realizations were made but were embezled by servants of the Municipality seems probable enough.

36, The plaintiff produced eight decrees for zarichaharum relating to mohallas of shahr khass but not to Mohalla Kuch Champa Shahid. These show that the prevalence and validity of the custom have been judicially recognized in certain mohallas of shahr khass. This goes far to disprove the defendant's contention that the custom does not prevail in any part of shahr khass. He himself produced sale-deeds relating to other mohallas in shahr khas for proving that no zarichaharum had been paid, so it was common ground that the custom prevailing in other mohallas of shahr khass had an important bearing on the prevalence of the custom in the mohalla in dispute.

37. One of the strongest pieces of evidence in the plaintiff's favour is to be found in the admissions in the sale-deed of the house in suit. The sale-deed of 1918 by which the house was transferred by Nepal to defendant 1 contains the words:

and be it known that the buyer is responsible for payment of the zarichaharum duo to the zamindar. I the seller shall have no concern with it.

38. The earlier sale-deed of 1903 whereby the house was sold to Nepal also Contains a clause stating that the buyer would be responsible for the haqq chaharum zamindar. The language of the deeds contain no suggestion that the zamindar's right to haqq chaharum was in any way doubtful. We think that they amount to admissions of the zamindar's right, and the language does not support the theory that the covenants "were inserted by way of precaution" in case the zamindar really had such a customary right.

39. Upon consideration of the whole of the evidence we think the plaintiff has proved the prevalence of the practice in the locality in question. The validity of the practice as a custom having the force of law has received judicial recognition in so many cases that we must regard it as a legally binding custom.

40. In the result we allow the appeal and decree the plaintiff's suit with costs throughout.