A Digest of Customary Law in the Punjab

INTRODUCTORY

Synopsis

(1) Meaning of the term “Law”;

(2) Customary Law;

(3) Property in land;

(4) Village communities;

(5) Village communities in the Punjab;

(6) The principal agricultural tribes of the Punjab;

(7) Punjab customs very ancient—essentially non-Brahmanical.

(1) Meaning of the term “Law”

Definition by Austin:

A “law”, according to Austin, “in the most general and comprehensive acceptation in which the term, in its literal meaning, is employed, must be said to be a rule laid down for the guidance of an intelligent being by an intelligent having over him.” In this comprehensive sense, or in the largest meaning which it has, without extension by metaphor or analogy, the term law thus embraces the following objects:- Laws set by God to His human creatures, and laws set by men to men.

Laws set by God are more frequently styled the law of nature, or natural law, but the appellation Law of Nature being ambiguous and misleading, these laws are more appropriately termed as the Divine Law or the Law of God.

Laws set by men to men are of two leading or principal classes. Some are established by political superiors, sovereign and subject : by persons exercising supreme and subordinate Government, in independent nations, or independent political societies. As contradistinguished to natural law, or the law of nature, the aggregate of the rules, established by political superiors, is frequently styled positive law or law existing by position.

Others are not established by political superiors or are not established by political superiors, in that capacity or character. Closely analogous to these are a set of objects frequently but improperly termed laws, being rules set and enforced by mere opinion, that is, by the opinions or sentiments held or felt by an indeterminate body of men in regard to human conduct. Instances of such a use of law are the expression—‘The law of honor,’ ‘the law set by fashion,’ ‘moral laws’, ‘physical laws,’ and so forth. These are known by the name of positive morality in juristic language.

The term ‘law’ has thus been applied rather loosely to various matters which are not the proper subject of jurisprudence. In its more strict sense, it is generally associated in people’s mind with a command or commands of some definite human authority, the disobedience to which will be followed by some penalty. This sense, broadly speaking, accords with the meaning generally attached to the term by the jurists, principally, of the school of Austin.

Positive Law:

Law, rather positive law, according to Austin, is a rule “set by political superiors to political inferiors.” It is “a creature of the Sovereign or State, having been established immediately by the monarch or supreme body, as exercising legislative or judicial functions; or having been established immediately by a subject individual or body as exercising rights or powers of direct or judicial legislation which the monarch or supreme body had expressly or tacitly conferred.” “Every positive law, or every law simply and strictly so called, is set by a sovereign person, or a sovereign simply and strictly so called, is set by a sovereign person, or a sovereign body of persons, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set by a monarch, or sovereign member, to a person or persons in a state of subjections to its author. Even though it sprung directly from another fountain or source, it is positive law, or a law strictly so called, by the institution of that present sovereign in the character of political superior. Or (borrowing the language of Hobbes) “the legislator is he, not by whose authority the law was first made, but bu whose authority it continues to be a law.” “Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds:- by monarchs, or sovereign bodies as supreme political superiors: by subjects as private persons, in pursuance of legal rights. But every positive law, or every law strictly so called, is a direct or circuitous command of a monarch or sovereign member in the character of political superior: that is to say, a direct or circuitous command of a monarch or sovereign member to a person or persons in a state of subjection to its author. And being a command (and therefore flowing from a determinate source), every positive law is a law proper, or a law properly so called.”

Customs:

Practically what Austin means is that law is the express enactments by a Sovereign or State and certain judicial decisions. Now, this definition of law excludes a large body of rules and customs, collectively termed unwritten laws, which existed and regulated the life and conduct of human societies long before any regular political or civil Government came into existence.

Austin holds that until a judicial court recognizes a custom it cannot become a positive law, and he has consequently placed these rules and customs under the term positive morality. According to him ‘at its origin, a custom is a rule of conduct which the governed observe spontaneously, or not in pursuance of a law set by a political superior. The custom is transmuted into positive law, when it is adopted as such by the courts of justice, and when the judicial decisions fashioned upon it are enforced by the power of the State. But before it is adopted by the courts, and clothed with the legal sanction, it is merely a rule of positive morality: a rule generally observed by the citizens or subjects; but deriving the only force, which it can be said to possess, from the general disapprobation falling on those who transgress it...............Considered as rules of positive morality, customary laws arise from the consent of the governed, and not from the position or establishment of political superiors. But, considered as moral rules turned into positive laws, customary laws are established by the State: established by the State directly, when the customs are promulgated in its statutes; established by the State circuitously, when the customs are adopted by its tribunals.”

Thus, according to Austin, Customary Law is “positive law fashioned by judicial legislation upon pre-existing customs.” Or, in other words, it embraces only those customs, which have been recognized by the established tribunals. But the inconsistency of such a definition is quite apparent. In the first place, this definition obviously excludes a large body of customs which exist with all the force of law, just like those which as a matter of accident having been brought before the court to receive judicial recognition. In the next place, according to Austin, the moment a custom receives judicial recognition, it becomes part and parcel of the positive law and, therefore, for him to call it again a customary law is simply, if not contradicting, certainly confusing, himself. Lastly, in India, as we shall see presently, a judicial decision or recognition cannot confer on custom all the rigidity of a positive law. A custom though judicially sanctioned, may not be followed at the discretion of courts.

Holland’s views:

Holland, who practically adopts Austin’s definition of law, differs from him in regard to his (Austin’s) opinion that a custom becomes a law only when it receives judicial recognition. He says: “The state, through its delegates, the judges, undoubtedly grants recognition as law to such customs as come up to a certain standard of general reception and usefulness. To these the courts give operation, not merely prospectively from the date of such recognition, but also retrospectively; so far implying that the custom was law before it received the stamp of judicial authentication.” In giving the recognition a court merely decides as a fact that there exists a legal custom about which there might up to that moment, have been some question, as there might about the interpretation of an Act of Parliament.”

Comprehensive definition of law:

Holland, though he has proceeded a step further than Austin, in that custom was law before it received judicial recognition, and that, all that the court does is to decide as a fact that such custom exists, has not given such a broad definition of law as to include customs. Both customs that have attained all the force of law, and laws, i.e. statutes, are principles or rules, which govern and regulate the life and conduct of human societies. The former have their foundation in the collective will or common consent of the people, just as much as the latter have, on the will or pleasure of a Sovereign or a State. The objects and the functions of both are alike, though the procedure is different. To say, therefore, that customs and usages which have all the force of law, nay, sometimes even greater force than statutory laws, are not to be called law, is a mere verbal contest and nothing else. To give therefore a comprehensive definition of law, so that both customs of the above description and statutes may be included under the term law is not very easy, but yet the following description may be considered as adequate. Law is a body of rules of human conduct, either prescribed by long established usages and customs or lay down by a paramount political power.

(2) Customary Law:

Origin of Customary Law: opinion of Sir Henry Maine:

As has been observed by Mr. Roy in his Customs and Customary Law in British India “it is impossible to ascertain the precise beginning or to discover the rudimentary growth of an ancient and long established custom. It is of such high antiquity that neither human memory nor historical research can retrace it. Indeed on its antiquity and immemorial practice depends the goodness of a custom. But though we are unable to trace that origin of a custom which is enshrouded in the mist of ages, yet we can ascertain the process by which a certain rule of conduct is gradually established into a custom.”

“A rule of conduct, by uniform series of acts in pursuance of it, turns into a custom, which the people observe and follow without any coercion from anybody. The rule or rules come into existence without any apparent author. Their birth and growth is the natural consequences of the progress of human society; since no association of persons can exist permanently without adopting, consciously or unconsciously, some definite rules governing reciprocal rights and obligations. These rules of conduct may have been based on utility, or may have arisen from social or communal necessity, but they have always the express or tacit sanction of the collective will or common consent of the people among whom they prevail.”

Sir Henry Maine is of opinion that the germ of Customary Law is to be found in the Patria Potestas, or the absolute and arbitrary orders of the head of the family to those immediately under him. “There are in the history of law certain epochs which appear to us, with such knowledge as we possess, to mark the beginning of distinct trains of legal ideas and distinct course of practice. One of these is the formation of the Patriarchal Family, a group of men and women, children and slaves, of animate and inanimate property, all connected together by common subjection to the Paternal Power of the Chief of the household...............A great part of the legal ideas of civilized races may be traced to this conception, and the history of their development is the history of its slow unwinding.”

The head of the family, the father, governs his wife, children and slaves and directs their conduct according to his wishes. The commands or rules in which his wishes are expressed are obeyed by the different members of his family. Whenever the same circumstances arise, the same conduct, as first directed by the rule, is followed. The repetitions of conduct in the various matters of domestic life come at last to be regarded in the family as a rule of conduct or custom. And as years go by, the same rule or custom continues to be observed and with the lapse of years the rule becomes more and more binding, and any attempted departure from it by any member is resented by the rest. In the course of long years, the origin of the custom is lost, how the rule comes to be made becomes unknown and unknowable; the members observe it because their ancestors followed it. These rules and principles, few in number, on account of the simple mechanism of an ancient community or tribe, would, though being uniformly followed and acted upon, gradually become inviolable and obligatory. The original tacit consent of the people on which they were based would gradually crystallize into a collective will of the people. And by this collective will of the community or tribe those rules and principles would gradually become firmly established as customs.

Opinion of Sir Charles Roe about the Punjab Customs:

Speaking about the Punjab customs, Sir Charles Roe says:- “I have referred in paragraph 10 of this chapter to Sir Henry Maine’s opinion that the order of development of the forms of social life has been the Family, the House, the Tribe, the Nation. Similarly, he is of opinion that the germ of Customary Law is to be found in the Patria Potestas, or the absolute and arbitrary orders of the head of the family to those immediately under him.

“The first instances of laws enforced from outside the family are the almost equally capricious orders of the divinely inspired chief, or the ‘Themistes.’ It is only when these orders have ceased to be mere personal commands by the Chief, when they are the decisions of his council, a body of experts acting on precedents, that Customary Law comes into existence. He thinks it may be accepted as certain that the ‘Themistes’ preceded, and were the foundation of, Customary Law.

This last proposition is no doubt true of Customary Law in its later states, when it has become a fully developed system capable of dealing with all kinds of disputes. In his Settlement Report of the Bannu District Mr Thorburn has given us a very graphic account of how such a development of the law takes place. He says:--‘Most of our wildest tribes scorn the idea of a woman having any rights in property; they tell you that she is as much a chattel as a cow, and, if she, when widowed, desires to retain any interest in her husband’s property; she must marry his brother, and that a man to be entitled to hold his share of land, must be an able-bodied fighting man. Our Courts do not uphold such ‘Customs’ and the settled Waziris are now inclining to accept the general rule of the district that a widow, as long as she remains a widow, and there be no sons, has a life interest in her deceased husband’s property, and that all sons, whether strong or sickly, have equal rights of inheritance. Disputes as to the devolution of property used generally to be decided at home by a board of ‘ancients’ or graybeards, who in their judgments followed custom, which was analogous to that of the Waziris noted above, but whenever the parties could not agree they went into Court. As often as not they had previously (under the influence of the mullahs) determined that each should be bound by the Shara Law, though neither of them had any conception of what that law ordained. If the Shara was not followed the Court decided the case according to its own lights as to what the custom ought to be, and its own lights naturally caused it to decide that all sons should share equally, that a widow should take a life interest in her husband’s property, if he left no sons, and so forth. Take another instance. The extent of the Patria Potestas with reference to inherited property was a question which had to be answered. Could a father alienate his whole inheritance, though male issues were alive? If not all, how much? The Banuchis at first unanimously declared that he could give away all to whomsoever he chose, such being the Shara rule. Asked for examples of the exercise of such power, not one was forthcoming. Had any one so alienated half his land? No cases known. As with the Banuchis, so with the Isakhels and others. Thus reasoning from a series of negatives the people were over and over again driven to admit that their first replies were erroneous, and we had to record out answers to theeffect that no custom on the point existed, but that all were of opinion that, on disputes arising, if such and such a rule were adopted, an equitable custom would grow up. Here and there I shaped public opinion on most questions in the direction in which I myself and others of longer experience thought equitable.

“What took place in Bannu, has also taken place in other districts, where Custom was in its infancy, and no doubt, in course of time, Customary Law will rest almost entirely on the judgments of the Civil Courts, especially of the Chief Court. As observed by Sir Henry Maine, it will then cease to be unwritten law, and will become law in a special form.

“But these facts do not in my opinion in any way prove that the origin of the Customary Law is a series of ‘Themistes,’ or decisions in particular cases, still less do they prove that these decisions were mere arbitrary commands. Theearly judgments of our own Courts, established after the annexation of the Punjab, are as near an approach to the ‘Themistes’ as could well be conceived. The Judges were, if not divinely inspired, gifted with mental powers far above those of the people whose disputes they decided, and their power to enforce their decisions was irresistible. Yet we find them freely acknowledging the existence of custom, and basing their decisions on it, except when they considered that there were special reasons for rejecting it. Under native rule the power of the Chief, or his representative, the Judge is in theory strictly personal and unlimited, yet there are customs which even the Amir of Kabul could not violate by an arbitrary decision. But all the evidence shows us that amongst the tribes of the Punjab the agency for deciding disputes was not a personal Chief or Judge, but the brotherhood or the committee of the ‘brotherhood,’ known in the frontier ribs as the jirgah, and in the Punjab generally as the panchayat. On what did these bodies base their decisions ? Assuredly not on ‘reported cases.’ Nor could the decisions have been merely capricious. No doubt, in certain cases, such as the admission of an outsider into a frontier tribe, or sanctioning an adoption in a Hindu tribe, the Court would be influenced by the personal feelings of its members towards the person to be admitted or adopted. It is, or was, one of the great advantages of a tribunal of this kind that there is an elasticity in its rules, and that all circumstances can be taken into consideration. But we may be quite sure that on main points, such as whether a marriage was opposed to Tribal Law, or the rights of females, the decision was in accordance with what was believed to be fundamental custom. I would modify Sir Henry Maine’s proposition, and say that, whilst Customary Law in its details has grown up from decisions in particular cases, the general principles of the law existed before the decisions. Disputes requiring decision can only arise after individual proprietary right has come into existence. Individual property is amongst the tribes of the Punjab, and I should think generally, merely a development of joint property. For the existence of joint property there must be one united community, and to keep a community united, some broad general principles must be consistently observed.

How Custom preserved:

“The preservation,” says Sir Henry Maine, “during a number of centuries which it would be vain to calculate, of this great body of unwritten custom, differing locally in detail, but connected by common general features, is a phenomenon which the jurist must not pass over. Before I say anything of the conclusions at which it points, let me tell you what is known of the agencies by which it has been preserved....................One great instrumentality is the perpetual discussion of customary law by the people themselves......................I am aware that the popular impression here is that Indian society is divided, so to speak, into a number of horizontal starts, each representating a caste. This is an entire mistake. It is extremely doubtful whether the Brahminical theory of caste upon caste was ever true except of the two highest castes; and it is even likely that more importance has been attached to it in modern than eve was in ancient times.................The true view of India is that, as a whole, it is divided into a vast number of independent, self-acting organized social groups—trading, manufacturing, cultivating. The English agricultural laborers of whom wee speak, are a too large, too indeterminate class, of which the units are too loosely connected, and have too few interests in common, to have any great power of retaining tradition. But the smaller organic groups of Indian society are very differently situated. They are constantly dwelling on traditions of a certain sort, they are so constituted that one man’s interests and impressions correct those of another and some of them have in their council of elders a permanent machinery for declaring traditional usage, and solving doubtful points.”

That customs have been handed down to us from the remotest ages and not allowed to pass into oblivion is due to the conservative nature of man and to the reverential regard with which each member of a community or a tribe looks upon them. To isolate a custom is to him nothing short of a sacrilege. Thus by right observances and constant practices, the traditional rules have been always kept in evidence and transmitted from generation to generation without any way being warped by extraneous influences. Further, the frequent discussions regarding the various customs among the people themselves, as occasions arise, have tended, in no small measure, towards their preservation.

Customary Law:

Jurists differ as to what is meant by the expression Customary Law. This difference is due to the different conception of the term ‘law’ by the two different schools, viz., the Historical and the Analytical. Hale, Blackstone, Maine and other English Jurists and many Roman and German writers representing the Historical School, trace back law to before the period when Sovereigns or States came into existence; whereas Hobbes, Bentham, Austin and others representing the Analytical School, trace law from the period when Sovereigns and States first came into being. Both the Schools, however, agree that before the king-made law, there existed a large body of rules regulating societies. The Historical School call them unwritten laws in contradistinction to the written or statutory and judiciary laws. But the School of Austin as they own the existence of no other law than the king-made one will not apply the term ‘law’ to them and prefer to designate them as unwritten rules or rules of morality. These unwritten rules or rules of morality, as called by the Analytical School, are collectively called Customary Law. It is the jus non scriptum of the Romans.

Thus Customary Law, or as it is called, mores majorum or consuetudinrium is composed of a large body of rules observed by communities, evidenced by long usages and founded on pre-existing rules sanctioned by the will of the community. It exists independently of a Sovereign authority. It forms the groundwork of every system of legislation.

Having got the general impression of as to what is meant by the expressions “Customs” and “Customary Law,” let us see what constitutes the property in land and how these communities and societies, which are regulated by these unwritten laws, have been formed.

(3) Property in land:

Development of the idea of property in land—collective ownership:

Of all kinds of property that in land has most deeply affected both the economic condition and political career of human societies. It shall therefore be of interest to note the development of the idea of property in land.

In the words of Sir Henry Maine (Lectures on the Early History of Institutions, page 1 ), “the collective ownership of the soil by groups of men, either in fact united by blood relationship, or believing, or assuming, that they are so united, is now entitled to take rank as an ascertained primitive phenomenon once universally characterizing those communities of mankind between whose civilization and our own there is any distinct connection or analogy.” And it would be accepted by M. Emile de Lavaleye, between whom and Sir Henry Maine there are important differences of opinion. “It is only”, says M. Emile de Lavaleye “after a series of progressive evolutions and at a comparatively recent period, that individual ownership as applied to land, is constituted.” Speaking of the progressive evolution of the general idea of property in land he writes:--“So long as the primitive man lived by the chase, by fishing or gathering wild fruits, he never thought of appropriating the soil; and considered nothing as his own but what he had taken or contrived with his own hands. Under the pastoral system, the notion of property in the soil begins to spring up. It is, however, always limited to the portion of land, which the herds of each tribe are accustomed to graze on, and frequent quarrels break out with regard to the limits of these pastures. The idea that a single individual could claim a part of the soil as exclusively his own never yet occurs to any one; the conditions of pastoral life are in direct opposition to it.

“Gradually, a portion of the soil was put temporarily under cultivation and the agricultural system was established; but the territory, which the clan or tribe occupies, remains its undivided property. The arable, the pasturage and the forest are formed in common. Subsequently the cultivated land is divided into parcels, which are distributed by lot among the several families, a mere temporary right of occupation being thus allowed to the individual. The soil still remains the collective property of the clan to whom it returns from time to time, that a new partition may be affected. This is the system still in force in the Russian commune, and was, in the time of Tacitus, that of the German tribe.

“By a new step, of individualization, the parcels remain in the hands of groups of patriarchal families dwelling in the same house and working together for the benefit of the association, as in Italy or France in the middle ages, and in Servia at the present time.

“Finally individual hereditary property appears. It is, however, still tied down by the thousand of fetters of seigniorial rights...................It is not till after a last evolution, sometimes very long in taking effect, that it is definitely constituted and becomes the absolute, sovereign, personal right.”

Sir Henry Maine’s theory:

As noted above the historical researches of both the eminent writers, Sir Henry Maine and M. de Lavaleye coincide in establishing that the separate ownership of land is of modern growth, and that originally the soil belonged in common to communities of kinsmen. According to Sir Henry Maine’s theory the order of development has been the Family, the House and the Tribe. To quote from him—

“The naturally organized self-existing village community can no longer be claimed as an institution specially characteristic of the Aryan races. M. de Lavaleye, following Dutch authorities, has described these communities as they are found in Java; and M. Renan has described them among the obscurer Semitic tribes in Northern Africa. But, where-ever they have been examined, the extant examples of the group suggest the same theory of its origin: which Mr. Freeman (Comparative Politics, page 103) has advanced concerning the Germanic Village Communities or Mark; ‘This lowest political unit was at first (i.e., in England, as elsewhere, formed of men bound together by a tie of kindred, in its estate natural, in a later stage either of kindred, natural or artifical.’ The evidence, however, is now quite ample enough to furnish us with strong indications not only of the mode in which these communities began, but of the mode in which they transformed themselves. The world, in fact, contains examples of cultivating groups in every stage, from that in which they are actually bodies of kinsmen, to that in which the merest shadow of consanguinity survives, and the assemblage of cultivators is held together solely by the land which they till in common. The great steps in the scale of transition seem to me to be marked by the Joint Family of the Hindus, by the House Community of the Southern Sclavonians, and by the true Village-Community, as it is found first in Russia and next in India. The group, which I have placed at the head- the Hindu Joint Family—is really a body of kinsmen the natural and adoptive descendants of a known ancestor. Although the modern law of India gives such facilities for its dissolution that it is one of the most unstable of social compounds, and rarely lasts beyond a couple of generations, still, so long as it lasts it has a legal corporate existence, and exhibits in the most perfect state that community of proprietary enjoyment which has been so often observed, and (let me add) so often misconstrued, in cultivating societies of archaic type. ‘According to the true notion of a joint undivided Hindu family’, said the Privy Council, ‘no member of the family, while it remains undivided, can predicate of the joint undivided property that he, that particular member, has a certain definite share...........The proceeds of undivided property must be brought according to the theory, into the common chest or purse, and then dealt with according to the modes of enjoyment of the members of an undivided,’ (per Lord Westbury, Appovier v. Ram Subha Aiyar, 11 Moore’s Indian Appeals 75). While, however, these Hindu families, joint in food, worship and estate’ are constantly engaged in the cultivation of land, and dealing with its produce, ‘according to the modes of enjoyment of an undivided family’, they are not village-communities. They are only accidentally connected with the land, however extensive their landed property may be. What holds them together is not land, but consanguinity; and there is no reason why they should occupy themselves as indeed they frequently do, with trade or with the practice of a handicraft. The house community, which comes next in the order of development, has been examined by M. de Lavaleye (P. et s F. P., P. 201), and by Mr. Patterson (“Fort-nightly Review”, No. xliv), in Croatia, Dalmatia and Illyria, countries which, though nearer to us than India, have still much in common with the parts of the East not brought completely under Mohammadan influences. But there is reason to believe that neither Roman Law nor feudalism entirely crushed it even in Western Europe. It is a remarkable fact that assemblages of kinsmen, almost precisely the counterpart of the House Communities surviving among the Sealvonians, were observed by M. Dupin, in 1840, in the French Department of the Nievre, and were able to satisfy him that even in 1500 they had been accounted ancient. These House-Communities seem to be simply the Joint Family of the Hindus, allowed to expand itself without hindrance, and settled for ages on the land. All the chief characteristics of the Hindu institutions are here—the common home and common table, which are always in theory the centre of Hindu family, the collective enjoyment of property, and its administration by an elected manager. Nevertheless, many instructive changes have begun which show how such a group modifies itself in time. The community is a community of kinsmen, but though the common ancestry is probably to a great extent real, the tradition has become weak enough to admit of considerable artificiality being introduced into the association, as it is found at any given moment, through the absorption of strangers from outside. Meantime, the land tends to become the true basis of the group; it is recognized as of pre-eminent importance to its vitality, and it remains common property, while private ownership is allowed to show itself in movables and cattle. In the true Village-Community, the common dwelling and common table, which belong alike to the Joint Family and to the house-Community, are no longer to be found. The village itself is an assemblage of houses, contained indeed within narrow limits, but composed of separate dwellings, each jealously guarded from the intrusion of a neighbor. The village lands are no longer the collective property of the community; the arable lands have been divided between the various households; the pasturelands have been partially divided; only the waste remains in common. In comparing the two extant types of Village-Community which have been longest examined by good observers, the Russian and the Indian, we may be led to think that the traces left on usage and idea by the ancient collective enjoyment are faint, exactly in proportion to the decay of the theory of actual kinsmen among the co-villagers. The Russian peasants of the same village really believe, we are told, in their common ancestry, and accordingly we find that in Russia the arable lands of the village. Are periodically redistributed, and that the village artificer, even should he carry his tools to a distance, works for the profit of his co-villagers. In India, though the villagers are still a brotherhood, and though membership in the brotherhood separates a man from the world outside, it is very difficult to say in what the tie is conceived as consisting. Many palpable facts in the composition of the community are constantly inconsistent with the actual descent of the villagers from any one ancestor. Accordingly, private property in land has grown up, though its outlines are not always clear; the periodical revision of the domain has become a mere tradition, or is only practiced among the ruder portions of the race, and the results of the theoretical kinsmen are pretty much confined to the duty of submitting to common rules of cultivation and pasturage, of abstaining from sale or alienation without the consent of the co-villagers, and (according to some opinions) of refraining from imposing a rack-rent upon members of the same brotherhood. Thus the Indians village community is a body of men held together by the land, which they occupy. The idea of common blood and descent has all but died out. A few steps more in the same course of development—and these the English Law is actually hastening—will diffuse the familiar ideas of our own country and time throughout India, the village community will disappear, and landed property, in the full English sense, will come into existence.

Baden-Powell’s observations:

It has been observed (The Indian Village Communities, Baden Powell, page 399) that ‘right to land grows out of two ideas; one being that a special claim arises, to any object or to a plot of land, by virtue of the labour and skill expended on making it useful or profitable: the other, that a claim arises from conquest or superior might. In a very early stage, a body of primitive settlers comes to a ‘boundless’ area of wooded or jungle-clad but fertile plain. As each household group laboriously clears and renders fit for cultivation a certain area, the father, or the united family, as the case may be, regards the plot as now connected with himself or themselves specially, in virtue of the labour expended on it. This claim is recognized by all, because every other member of the clan has the same feeling as regards the field he has cleared. The feeling of right is further developed when each holding is the result not merely of a random choice, but of some regular procedure of allotment of the clan chief.

“If there are no other human beings to contest the ownership, although the clan occupies a more or less compact general territory, the sense of any wider or more general clan-right is not as keen as it afterwards becomes when, very likely, unfriendly clans lie all-round, and each has to maintain its own limits against aggression. The idea of clan- right to the territory as a whole- both the cleared holdings and the waste which is grazed over and from which wood is cut must soon, in the natural course of events, become definite. Not only is there sure to be some clan collected together at the-time of first settling, but the families, naturally and by choice grouped together must help each other a great deal in clearing the jungle, building the cottages, digging the tanks or wells, and in many similar works. Hence, even if there were no general sense of kindred which long residence together has fostered, there would still be a certain sense of union. The right to the holding selected and cleared by the family is however naturally superior to the clan territorial claim, being more definite; it is in fact dependent on the sentiment which originates the notions of property in general—that which a man has made or rendered useful and profitable he has a special title to enjoy.

‘But very soon another factor comes into question; when tribes multiply, and, moving east or west, come into conflict and one is superior in energy and in power of combination to another, the possession longer remains a matter of first appropriation in the absence of all other claims. Might become right and conquest given a new title. This claim by conquest and superiority the next generation will euphemise as the claim by inheritance.

‘But it is also a further phase of class development, under the necessity for military discipline and organized movement, that the patriarchal rule of chiefs gives way to a system of kings and barons as subordinate chiefs. And no sooner are these dignities acknowledged than there arise various kinds of territorial lordships which may take the form of a kingdom, or local chief ship, or a sort of manorial holding of smaller portions of land. This right of lordship over an estate has nothing to do with the question of labour or expense incurred in clearing and cultivating the soil, but is an over lordship based on easte or family superiority, attained by conquest or otherwise; and it expresses itself by taking a share in the produce raised by tenants, dependants, or a pre-existing body of agricultural settlers. It is made tolerable to the now subordinated original settlers by the degree of protection which the overlord even in his own interest, affords to the villages from which he derives his revenue or income,” (Ibid, page 403).

“It is commonly said that property in land passes through three stages. First, it is held by the tribe or class, and is regarded as the common property of the whole body. Holdings indeed are allotted or recognized, because without that agricultural labour could not be performed; but periodically the holdings are exchanged or redistributed,.........The next stages is reached when redistribution is abandoned because each several holding that of the man with his sons, has become improved, and each family desires to retain permanently its own. But still the Pater familias is not the individual owner; he cannot sell or will away the holding. He must share it equally with his sons if he makes a partition and on his death it will go to all sons equally, as to all other heirs if there are no surviving sons.

“This is said to be the stage when property vests in the family... But gradually the desire to profit by one’s own skill and labour individualizes property. A number of things conduce to this end. Family quarrels are an unfortunate but very common factor. Differences of taste and agricultural capability also have their sphere. Coined money comes into use, and men begin to buy and sell land. Finally, families breakup, and individual ownership is the third or final condition,” (Land Systems in British India, Baden-Powell, Vol. I, page 110).

Baden-Powell holds that in India the earliest idea was appropriation by the individual, i.e., the fathers of the family; that this gradually develops into an idea of equality between all the sons in succession to the father’s property which leads to the idea of a joint ownership by a close kindred of which the father is the head. When a number of such families of common decent, kept together by circumstances, continually fighting side by side and constitute a clan, and there is, further, a kind of collective sense of right to the whole, which is over and above the family right to the several lots that fall to each, and is largely dependent on the sense of unity which class life naturally produces, and on the sense of the right of every member to share in the common acquisition. (Indian Village Communities, page 406).

Thus at different times very different rights and advantages are included under the idea of property. At the very early period of society it included very few; originally. Nothing more perhaps than use during occupancy, the commodity being liable to be taken by another the moment it was relinquished by the hand which held it; but one privilege is added to another as society advances and it is not till a considerable progress has been made in cultivation that the right of property involves all the powers which are ultimately bestowed upon it. Property in land as a transferable marketable commodity absolutely owned and passing from hand like any chattel is not an ancient institution, but a modern development (Essay on Indian Land Tenures, Sir George Campbell).

According to M. de Lavaleye, we have first the tribe, then the clan, settled on the land, which is the same thing as the village community, next the house community, and lastly individual property. But, according to Sir Henry Maine, the village community is derived from the house community; and the latter is an expansion of the joint family. In the one case, the family is regarded as the primary unit, and observation is directed to its growth on the land. In the other the tribe is the unit and the history of property is the history of tribal disintegration.

Sir Henry Maine’s theory criticized by Mr. Tupper with special reference to the Punjab:

In the first chapter of the second volume of his work on Customary Law, Mr. Tupper deals with the subject at great length and in a general manner, criticizing Sir Henry Maine’s theory that the order of development has been the family, the House, the Tribe; he expresses his decided opinion that the order should be reversed, and that at least as regards proprietary right, it has the Tribe, the House, the Family. Speaking of the Punjab he says—“I have no hesitation in saying at once that the village community in the Punjab is not derived from the house community; and that here it would convey a more correct general impression to speak of the joint family, except where it is an offshoot from an already existing village, or the fragment of a tribe, as the lastterm in the series and not the first. I ama not prepared to say that there are no cases where the joint family is very numerous—probably such could be found. But, assuredly, the house community is not nowk, in this part of India, a prominent feature in the rural organization as it is among the Southern Slavs; and had it ever been the unit regulating proprietary enjoyment, it would have left traces in the village system. This, however, I cannot find thqt it has done; and if we admit, for the purpose of argument, that the house community has a definite place in the order of development, it may safely be asserted that there is an ellipsis in the Punjab of the particular phase. We may, I think, go even further than this and say that in this part of India the true analogy to the Slav house community lies in the patti or taraf of the village. When the class has broken up into sections within the village, and each of the land formerly enjoyed by all jointly or where the village had had a miscellaneous origin in the combination of offshoots of different stocks, there we have the transition between primitive joint ownership and the ownership of families joint as amongst themselves but severed in interest from the rest of the village.

Moreover, the theory of Sir Henry Maine requires us to suppose that; the land has supplanted kinship as the basis of the community. But in the Punjab this is very far from being the case. The idea of common blood and descent has by no means died out. The Punjab peasants, no less than Russian peasants, believe in their common ancestry; and allowing always that adoption must be recognized as of equal strength with natural parentage, their belief frequently rests upon indisputable grounds. It is not difficult to say here in what the tie between the brotherhood is conceived as consisting. Unquestionably, as the name implies, it is conceived, except in the villages just mentioned, of miscellaneous origin, as consisting in the possession of a common ancestry,--an ancestry which may be traced either to a single family or to associate tribesmen, but has in either case transmitted the common blood.............Wherever the obligation and privileges of proprietorship are regulated wholly or in part by ancestral shares there kinship is asserting itself as the fundamental principle on which property is distributed..........................

“Now, if, in addition to this, I can succeed in raising a strong presumption that the village community has generally originated in the tribe, except where it has been founded by the interposition of government, or is merely a colony of a parent village, I think it will be admitted that I am justified in contending that Sir Henry Maine’s theory can only be regarded as applicable to the Punjab in a very limited sense. I propose, therefore, to bring forward the evidence which appears to me to establish this presumption; and I shall then go on to show that, when once the village community has come into existence, the progressive stages are its separation into defined lots still held jointly by groups claiming common descent amongst themselves and next the division of the land amongst joint families or individuals. This agrees generally with the theory of M. de Lavaleye except that the partition amongst groups takes the place of the house community, from which the joint family is distinguished merely being of smaller size...............

“The great periods in the history of landed property in the Punjab may be presumed to be not the joint family, the house community, and the village community in that order, but successively the tribe, the village, and the family.”

On the same subject Sir Charles Roe in his Tribal Law in the Punjab (page 6) expresses as follows:--

Contents Next