In the absence of a specific pleading and evidence that a particular Kurmi Mahton of Chotanagpur is governed by Hindu law in matters of succession, there is no presumption in favor of such governance. The onus of proving a custom that excludes females from inheritance lies on the party who asserts it.

K.Ahmad, J.

1. Admittedly, the properties in suit, which are given in schedules A and B of the plaint, were originally owned and possessed by one Bodhnath Mahton of Chhotanagpur, that means, a member of aboriginal tribes of non-aryan descent. Bodhnath Mahton is said to have died sometime in 1946, leaving behind him his widow Mosammat Mahrangi arid a daughter Salo. The case of the plaintiff, who is the respondent here, is that on the death of Bodhnath Mahton, all his properties including the properties in dispute was inherited by his widow Mosammat Mahrangi. Thereafter Mosammat Mahrangi is said to have executed a registered deed of gift in respect of the properties in dispute on the 27th March 1948 in favour of his daughter Salo and her two daughters sons, Baijnath Mahlon and Raghunath Mahto. Thus since then, according to the plaintiff, it were the donees who were the owners of these properties and had been in possession thereof. It is said that on the 25th May, 1948, these donees executed two registered documents, both in favour of the plaintiff. By one of them, a permanent Rayati lease was created in respect of the lands of Khata No. 68, which is referred to in schedule A of the plaint, and by the other, the lands of Khata No. 73, which form the subject-matter of schedule B of the plaint, were sold. The plaintiff asserts that as such he has been in possession of the lands of these two khatas since then. But it is said that in December 1959, his possession was challenged by the defendants, who are the admitted agnates of Bodhnath Mahton and the appellants before me. Accordingly, the suit has been brought for declaration of title and confirmation or in the alternative recovery of possession in respect of the lands of the aforesaid two khatas.

2. The main defence set up by the defendants is that according to the custom prevailing in the community of the Kurmi Mahtons of Chotanagpur, females are excluded from inheritance. Further, it has also been pleaded that on the death of Bodhnath Mahton, his properties were not inherited by Mosammat Maharangi, but by the agnates, namely, the defendants. Then there is also the defence taken that the suit, as constituted, is barred by limitation and adverse possession. It, however, appears that though an issue was framed in regard to the question of limitation and adverse possession, but it has not been pressed in either of the two Courts below, and the case has been disposed of mainly on the consideration whether the females of Kurmi Mahton of Chotanagpur are excluded from inheritance by custom. On this point, the two Courts below have come to conflicting conclusions. The conclusion arrived at by the trial Court was:

"......the plaintiff has failed to prove his title over the suit land. He acquired the suit land from Mosst. Salo who hereself had no title over the suit land. It is not for him to contend that as he is in possession of the suit land, his title may be declared. Even if it be accepted for a moment that the plaintiff is in possession of the suit land, he can get the decree in his favour only when the defendants do not establish a better title to the disputed property. The defendants, in this case, have been able to establish that they, being the agnates of, Bodhnath, are the rightful owner of the suit land".

In coming to this conclusion, reliance has been placed by the trial Court on the evidence of D. Ws. 1, 2, 3, 4 and 5, as also on certain admissions said to have been made by P. Ws. 3, 5 and 8, Further, reference in this connection has also been made to the admitted possession of the defendants over some of the other lands of Bodhnath. Accordingly, the suit at the trial was dismissed.

3. In appeal, that judgment has been reversed. The lower appellate Court has approached the case on the assumption that the Kurmi Mahtons of Chotanagpur are Hindus and, therefore, the presumption is in favour of the plaintiff that on the death of Bodhnath Mahton, his properties were inherit