The necessity of specific pleadings and cogent evidence to establish the existence of custom, and the application of principles of justice, equity, fairness, and good conscience in determining inheritance rights for Scheduled Tribes.

1. This is an appeal by the original defendants challenging the Judgment and Decree in Civil Appeal No. 32/1983 passed by learned District Judge, Dhule on 06.01.1987 whereby the Judgment and Decree of dismissal of Reg. Civil Suit No. 10/1981 passed by Civil Judge Jr. Divn., Taloja Camp, Shahada was reversed and decree for partition was passed in favour of daughter of a Scheduled Tribe on the basis of custom pleaded by her.

2. A brief reference to the facts is essential for deciding this appeal. The genealogy undisputed is as follows:

Genealogy

Dama
Laga		Bhaga (Deft. No. 1)
Gulabsingh	Ranubai (Plaintiff)	Shama (Deft. No.2)

3. The plaintiff-Ranu is thus niece of her real uncle Bhaga (Defendant No.1) and cousin of defendant No. 2 Shama. Following ancestral properties are the suit properties.

v-ua-	ekSts	xV ua-	{ks=		vkdkj
			gs-	vkj	#-	iSls
1-	eVdkuh	5	14	39	10	31
2-	njk	63	2	4	2	87
3-	lqyokMs	120	2	35	7	44

4. The plaintiff claimed that, as per the Hindu Law and existing customs, she was entitled for half share of her father. She demanded partition and separate possession of her half share from the defendants orally and by notice dt. 26.12.80. The defendants declined. Hence, the suit for partition and separate possession of half share.

5. The defendants by Written Statement (Exh. 9) admitted the relationship but claimed that, they belong to Scheduled Tribe and the provisions of Hindu Succession Act are not applicable to them. The suit properties became the properties of Bhaga by survivorship. They denied any custom whereby the plaintiff was entitled for share of her father.

6. The learned trial Judge framed issues and dismissed the suit with costs. The plaintiff preferred appeal before the District Judge, Dhule. The ld. Principal District Judge, Dhule held that, the parties being illiterate persons, the pleading should be liberally construed and there was pleadings and evidence to establish a custom and therefore the suit was decreed and half share was given to the plaintiff. The aggrieved defendants have preferred this appeal.

7. This appeal has been admitted on following substantial question of law framed on 09.02.1988.

Whether a custom prevails in the Bhil Community in Dhule district by which a daughter inherits a share equally to that of son in the property of her grand father?

…. I answer it in the negative.

8. Heard Mr Amit Savale, learned counsel for the appellant and Mr. V. V. Deshmukh, learned advocate appointed by my leaned predecessor as amicus curiae.

9. I answer the substantial question of law framed in the negative and allow the appeal and dismiss the suit leaving the parties to bear their own costs.

REASONS

10. There is no dispute about the facts but there is dispute about the existence of customs. The law regarding customs has been placed before this Court through following judicial pronouncement.

[i] Kochan Kani Kunjuraman Kani etc. v. Mathevan Kani Sankaran Kani and Ors. etc. AIR 1971 SC 1398 (Para 8)

8. ….... He (the plaintiff) did not plead any family custom. Before he could succeed in his suits, he had to establish the custom pleaded by him. Proof of any other custom could not help him.

[ii] Gokal Chand v. Parvin Kumari AIR 1952 SC 231 The general principles to be kept in view in dealing with customs may be summarised as follows:

(1) It should be recognised that many of the agricultural tribes in the Punjab are governed by a variety of customs, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in section 5 of the Punjab Laws Act, 1872.

(2) In spite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by cust