CUSTOMARY LAW (Punjab and Haryana). By Paras Diwan. 1978.

Publication Bureau, Panjab University, Chandigarh. Pp. 341. Price

Rs. 50/.
CUSTOM IS one of the fundamental sources of law. Its role in the
development of personal laws such as the Hindu and Muslim personal law
is very significant. India in general, and some states like Punjab, Haryana,
Rajasthan, Uttar Pradesh, Madhya Pradesh, Bihar and Orissa, in
particular, are well known for peculiar customary practices relating to
marriage, divorce and sonship. Custom along with religion, has been
playing a prominent role in the regulation of personal and property relations
of the people living in these states. The Hindu Dharma Sastras, coupled
with sadachara (right conduct) reigned supreme in governing social
relations, personal and property relations of Hindus who constitute the
major chunk of the Indian society. In so far as Muslims are concerned,
Qufan supplemented by custom regulates the personal and property
relations of Muslims in India.
Of all the states in India, the State of Punjab (now split into the twin
States of Punjab and Haryana with Chandigarh as common capital) is
the home of customary law which continues to be popular despite the
existence of social enactments such as the Hindu Marriage Act, 1955, and
the Hindu Succession, Act, 1956. True to its hetrogenous social structure
and tribal culture representing a cluster of communities and races, Punjab,
the rural Punjab in particular, could successfully absorb into its fold
peculiar customs relating to marriage and divorce which have been in
vogue since ages. The unique character of Punjabis in this respect is that
they have successfully, unlike the people in other states, isolated their
religion from the civil matters such as marriage, divorce, adoption, etc.,
which continue to be influenced by the Punjab customary law unabated.
May be for this reason Paras Diwan, a prolific writer in Hindu personal
law, has rightly chosen 'customary law'(of Punjab and Haryana) as the
title of the book under review. The author has made a rare and significant
contribution to the subject of customary law in general and Punjab
customary law in particular, on which the literature is very much scarce.
And we hardly find any Indian writer attempting this area for publication
next to that of Rattigan's monumental work on the Digest of Punjab
Customary Law.
The book under review consists of four parts, comprising twenty-nine
chapters, and 341 pages including the Appendix and notes. The first part
(chapter I to VI) is the preliminary dealing with the introduction,
meaning and definition of custom, its role as a source of law, and the
other jurisprudential aspects of custom as a rule of law in the twin States
of Punjab and Haryana, and its interrelationship with the Hindu personal
law. 1 he second part (chapter VII to XII) deals with the family law aspects

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142 JOURNAL OF THE INDIAN LAW INSTITUTE [ Vol. 23 : 1

such as marriage, divorce and adoption in the Punjab style in juxtaposition

with similar institutions recognized in Hindu personal law. And the third
part of the book (chapters XIII to XIX) deals with the concept of Punjabi
family, property, and the power of alienation ere. in contrast with the
concept of Hindu joint family and ancestral property. Finally, in the
fourth part (chapters XX to XXIX), the author dwells at length on the
miscellaneous matters dealing with the Punjab customary institutions such
as the village common land, village community system, the village pro­
prietary body and the concept of absentee proprietor.
The chapterization and the main contents of the book make it clear
that the author has rightly chosen to examine the role of custom as the
main source of Hindu personal law and as the governing rules of law in
the twin States of Punjab and Haryana.
Among the four parts of the book only parts II and III dealing with
the family law aspects constitute the core of the entire work. Actually, it
is the second part of the book which deals in detail with the peculiar
customary marriages, divorce etc. that attracts most of the attention of
readers more than anything else. 1 he author has not only discussed these
aspects in detail with reference to the relevant case law but also established
successfully the judicial recognition of these customs by the Privy Council,
the Supreme Court of India and the High Courts in India. And in the third
part the author has made a critical analysis of the traditional (rigid) Hindu
joint family, the concept of Mitakshara coparcenary system in contradis­
tinction with the liberal family system and the concept of property
recognised under the Punjab customary law. In the second part of the
book, comparative aspects of the rigid dharmic notion of Hindu marriage,
which was regarded as an indissoluble holy union of man and woman
inextricably bound together in the sacred matrimonal bond with that of
the liberal customany marriage of Punjabis is the highlight. Marriage
among Punjabis is nothing but a volunatary union of man and
woman which can be broken on the basis of mutual consent by way
of customary divorce at their will and pleasure. 7 he author has thus
made an interesting study of many of such customs and other important
facets of punjabi family system and other aspects of its social life. In this
part of the book, the most interesting section is that which deals with the
special right to property recognised for Punjabis under its customary law.
The institution of special right to property to women in Punjab, resembles
the Sridhana recognised under Hindu law. This institution is a real con­
tribution of Punjab customary law to the legal status of women in India
in general, and Punjabi women in particular. Under this institution a
punjabi woman can acquire property either by inheritance or gift from any
person or relation other than the husband, father, grandfather, son and
grandson, without being subject to any limitation, and it is her absolute
property unlike the limited estate of a Hindu female who suffered from
many disabilities under the traditional Hindu law of inheritance.

www.ili.ac.in © The Indian Law Institute

1981] BOOK REVIEWS 143

A unique feature of Punjab customary law is that it cuts across the

political and religious frontiers of all states and applies to all Punjabis
wherever they are and in whichever state they are living. Another signi­
ficant feature of the book under review is that the author has copiously
referred to Rattigan's Digest on Punjab Customary Law, and quoted a
number of passages from that book wherever he found it necessary to do
so.1 He actually adopted the same standards and rules prescribed by
Raftigan for defining custom and for the proof of a valid custom.3
Paras Diwan seems to have derived much inspiration and encouragement
to work on the same subject from the work of Rattigan.
The author, however, has had his own approach while making a critical
analysis of the various customs with reference to the detailed discussion of
case law on the subject. And he has successfully managed to bring about
a happy blend between Hindu and Muslim personal law elements and
explained how they arc deviated and rationalised in the customary practices
recognised under the customay law of Punjab. To quote an example,
some customary practices like Khan Damand or ghar-jawai (which means
resident son-in-law and resembles Hllatioirf or HilarOcam* in the State of
Andhra Pradesh) which is essentially of Muslim origin, are conveniently
absorbed in Punjab customary way of life and are assimilated into the
customary law of Punjab. The author could have avoided the unneces­
sary (detailed) discussion of the Hindu joint family system and its insti­
tutions such as the limited estate and the power of alienation, reversioner,
etc., in part III, and certain other miscellaneous aspects such as the
religious institutions of Punjab in Part IV and, thereby, achieved economy
of pages resulting in the economy of the cost and price of the book.
On the whole, the book under review, which represents the scholarly
work of Diwan on such a rare and difficult subject as customary law, makes
an easy and interesting reading. Probably, this book is a singular contri­
bution of the author from the section of Indian writers next only to justice
Rattigan's work on the same subject. And the book is of immense value
to legal scholars, researchers of law in general, and students of family law
and sociology in particular. It may also be useful to those that evince
special interest in the study of customary law and the study of Punjab
customary law in particular. For these reasons the book deserves to be
placed in all libraries in India and abroad. Finally, the author deserves
congratulations from all his teaching fraternity and legal scholars for having
successfully completed his work on the most difficult subject of customary
law.

R. Jaganmohan Rao*

1. Paras Diwan, Customary Law 23, 24, 31.

2. See id. at 30, 31.
♦Reader, Faculty Law, Andhra University, WaHair, A.F.

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 LAWS RELATING TO NOTICES. By Ajit B. Majumdar. 4th ed.
1978. Eastern Law House, Calcutta. Price Rs. 40.
THE BOOK under review is a very welcome treatise as it is a rare
juristic contribution in an area of the law that has not been studied in depth
hitherto. The author has taken tremendous pain to collate and analyse
the multifarious statutes that enjoin notice to the party whose rights are
sought to be affected by the provisions of the enactment and also those
statutes which stipulate prior notice to the government vis-a-vis any threa­
tened action by the citizen.
The book under riview was first published in 1966 and this is the fourth
edition. That speaks very well of its utility to the legal profession. It is a
well settled principle of law that a party affected must have prior notice and
also be heard. The right to be heard is one of the basic tenets of the rules
of natural justice. Very often prior notice helps both parties to assess their
respective positions so that they may prefer to enter into a compromise
than to indulge in a costly and long drawn action in the courts. Where it
is the government or a public body, the citizen litigant's prior notice to
them, helps the former to settle the matter if possible. A two months'
time is envisaged for notices against the government, to enable the latter
to send its reply after studying the files relating to the subjects at issue.
The book under review is divided into three parts. Part I deals with
general aspects of notices in ten chapters e.g. classification of notices,
requirements thereof, service thereof, persons competent to give
and receive notices, effect of notice on joint interest holders, waiver of
notice, savings of limitation where notice is statutory and miscellaneous
facts about notices.
Part II consists of twenty chapters. Statutory notices under the various
Acts are dealt with in this part e.g. The Code of Civil Procedure, 1908 ;
the Indian Railways Act, 1860, the Indian Partnership Act, 1932 ; the
Indian Sale of Goods Act, 1930 ; the Arbitration Act, 1940; the Indian
Contract Act, 1872; Notices Under the Constitution of India ; the Indian
Registration Act, 1908 ; the Negotiable Instruments Act, 1881 ; the
Carriers Act, 1865 ; the Transfer of Property Act, 1882 ; The Indian
Company's Act, 1956 ; the Hire Purchase Act, 1972 ; the Industrial
Disputes Act, 1947 ; the Indian Factories Act, 1948 ; the Industrial
Employment (Standing Orders) Act, 1946 ; notice to public bodies such
as municipalities, coroporations and other body corporate ; notices
under minor labour laws e.g. the Employees' State Insurance Act, 1948,
the Mines Act, 1952 and the Employment of Children Act, 1938 ; notices
under other minor Acts about eighteen in number including the
Administration of Evacuee Property Act, the Code of Criminal Procedure,
the Indian Christian Marriage Act, the Insurance Act, the Official Trustees
Act, the Sea Customs Act, Wakf Act, etc.

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19811 BOOK REVIEWS 145

Part III gives an exhaustive list of model forms which are greatly
helpful. They come under about twenty five heads e.g. assignment
notices (3 forms) ; demand notices (3 forms) ; railway claims notices (5
forms) ; the Code of Civil Procedure (forty forms) ; the Transfer of
Property Act, (12 forms) ; the common carrier (1 form); partnership
notices (6 forms) ; the Negotiable Instruments Act (3 forms) ; the
Contract Act (3 forms) ; Land Acquisition (2 forms) ; the Indian
Succession Act (2 forms) ; the Provincial Insolvency Act (5 forms) ; Indian
Lunacy Act (2 forms) ; the Companies Act (27 forms); the Hire Purchase
Act (6 forms) ; the Industrial Disputes Act (6 forms) ; the Factories Act
(2 forms) ; the Workmen's Compensation Act (2 forms) ; the Employees'
State Insurance Act (4 forms); the Gratuity Act (3 forms) ; the Industrial
Employment (Standing Orders) Act (23 forms); municipal laws (2 forms)
and the Money Lenders Act (Bengal-13 forms),
The author has focussed well on all the facets of the law of notices.
He rightly points out that the object of a notice under section 78-B of the
Railways Act is to enable the settlement of the claim by making de­
partmental enquiry. So is the objective in section 80 of the Civil Procedure
Code which enjoins a two months notice to the government or the public
officer. That amount of time is necessary for the state to study the
files and try to effect a settlement. Though this is the objective in actual
practice we find the government as the most litigious litigant. Red tapism
geers it up to take technical pleas as to court fees, limitations, legality
of notice etc. This is a sad state of things. The Law Commission's
Report had advised the deletion of section 80 as it hampers citizens' right
to file injunction suits against the state. Yet the Civl Procedure Code
(Amendment Act) 1976 has not deleted the provision. This provision is
a big blot in our jurisprudence and contributes much to law's delays and
costs. The object of a notice to quit under section 106 of the Transfer of
Property Act is to make the tenant aware of the lessor's intention to
terminate the lease. The service of notice has engineered the growth of
needless case law. It is now settled law that service is said to be com­
plete only when it reaches the addressee and not when it is despatched to
him through post. The author draws good attention to what are termed
mandatory notices and directory notices. Under the former head comes
notices under section 80 of the Code of Civil Procedure, section 78-B of
the Railways Act, section 10 of the Carriers Act, section 54 of the Sale of
Goods Act. Directory notices are given under sections 109 and 131 of
the Transfer of Property Act, and section 206 of the Contract Act.
Even when a statute does not provide for notice, the rules of natural
justice enjoin reasonable notice for any action. Though the author has
analysed the various facets' of the law of notices and has cited the
necessary case law to afair extent it is neither exhaustive nor well explained.
The author could well have mentioned more recent cases of 1975 to 1978.

www.ili.ac.in © The Indian Law Institute

 146 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 23 : 1

Thus State of Maharashtra v. Chandtr Kant1 could have been cited.

In this case it was pointed out that the notice has to be given not
only to the government but also against the public officer in respect of any
act purporting to be done in his official capacity. State of Punjab v.
M/s. Geeta Iron and Brass Works Ltd.,2 stresses on the indifferent attitude
of the state when it receives notice under section 80. It was pointed out
by the Supreme Court that the litigative policy for the state should
involve the settlement of the governmental disputes with citizens in
a sense of conciliation rather than in a fighting mood. In B.L. Sukhla v.
Fatmabai Ismail* it was posited that in suits against the police
officers for malicious prosecution and claiming damages, the issue
of malice is quite irrelevant for purposes of deciding if prior notice under
section 80 of the Code of Civil Procedure is at all necessary. For
notice is quite mandatory in all actions against the public officers. In
cases where article 299 of the Constitution applies and a governmental
contract is not in accordance with that article but the contractor has
completed his work bona fide believing on the relevant officer's written
authorisation and approval, a suit docs lie against the officer himself for
the injury caused to the contractor. In such cases also a notice to the
officer under section 80 of the code is mandatory. The officer's liability
under section 230 (3) of the Contract Act is well settled by the Supreme
Court decision in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram.4
The author has analysed well the growth of case law as to notices under
the Railways Act and the Transfer of Property Act. But the ratio
decidendi in K. Nasir Basha v. Turukan Charities,5 could also have been
considered by the author. That decision points out that it is only in
cases where there is no contract as to notice that the provisions of section
105 of the Transfer of Property Act would be applicable. Thus, where the
contract was that the tenant should surrender the property whenever
required the provisions as to notice cannot apply to it.
It would have been more useful if the author reproduced the very
provisions of each statute which enjoins notice, e.g. section 80 of the Code
of Civil Procedure; section 106 of the Transfer of Property Act ; section
78-B of the Railways Act ; article 299 of the Constitution of India, etc.
An index of cases cited in the book would also have added to the
value of the work. There is however a sumptuous general index provided
as also the synopsis for each chapter that goes greatly to the aid of the
reader to locate the facet of the law he is after.
The book under review on the whole is very useful to the practitioner,
the judge and the administrator. V.G. Ramachandran*
~\. AI.R. 1977 S.C. 148. " "
2. A.I.R. 1978 S.C. 1608.
3. A.I.R. 1978 Guj. 29 relied on Pukhrajv. State of Rajasthan A.T.R. 19976 S.C.
2591.
4.A.I.R. 1954 S.C. 236.
* Advocate, Madras High Court/

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 TRIPATHTS RECENT PUBLICATIONS

MALHOTRA : "LAW OF INDUSTRIAL DISPUTES" 3rd Edn., 1981.

2 vols. 3270 pages. Rs. 350.00. Foreword by Hidayatullah.
This new edition of a classic work, long accepted as the most authori­
tative, comprehensive and lucid analysis in its field, needs no introduction.
It is the best available commentary on the Law of Industrial Disputes.
The author explains comprehensively and lucidly through judicial inter­
pretations, what each section means, and explores and comments on
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"The work is a product of great learning and scholarship and has
become a classic. It will lead to a more rational understanding of
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to rationalise." —From the Foreword

PEARL: "INTERPERSONAL CONFLICT OF LAWS IN INDIA,

PAKISTAN & BANGLADESH" 1981. Rs. 50.00.
In this book the author examines the legal problems in Pakistan and
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Islam, and in India, where the Constitution of India looks forward to a
uniform code of law. Although this work is restricted to the experience
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throw light on the nature of problems experienced elsewhere.
SHAH : LECTURES ON COMPANY LAW, 18th Edn. 1981. Rs. 50.00.
This is a new edition of a popular textbook used by students for
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SHAH : -PRINCIPLES OF LAW OF TRANSFER" 5th Edn., 1980.

Rs. 35.00.
The present edition has scrupulously maintained its characteristic style
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and lawyers alike.

N.M. TRIPATHI PRIVATE LTD.

164, Samaldas Gandhi Marg, Bombay-400 002.

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 FORM IV

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JOURNAL OF THE INDIAN LAW INSTITUTE

(See Rule 8)

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Bhagwandas Road
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3. Printer's Name Dr. S.N. Jain

Nationality Indian
Address The Indian Law Institute,
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4. Publisher's Name Dr. S.N. Jain

Nationality Indian
Address The Indian Law Institute,
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Nationality Indian
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I, S.N. Jain, hereby declare that the particulars given above are true to
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