A custom that is contrary to the provisions of the Hindu Succession Act, 1956, cannot be upheld.

S.B. Sinha, J.

This first appeal is directed against a judgment and decree dated 18.4.1983 passed by Shri Ibrar Hassan, Additional Subordinate Judge, Chaibasa in Title (Partition) Suit No. 43/1 of 1981-83, whereby and whereunder the said learned court decreed the plaintiffs-respondents' suit for partition.

2. The fact of the matter lies in a very narrow compass.

3. One Sukhu Rautia who, according to the defendants-appellants, was really Nandu Rautia was the owner of the properties in suit. He died leaving behind three sons namely, Maninath Rautia, Jadunath Rautia and Harinath Rautia. The plaintiff no. 1 is the daughter of Jadunath Rautia whereas the plaintiff no. 2 is the daughter of Harinath Rautia. Maninath Rautia died 40 years prior to the institution of the suit leaving behind original defendant nos. 1 and 2 as his heirs and successors.

4. According to the plaintiffs, Harinath Rautia died in or about 1959 whereas Jadunath Rautia died in or about 1960-62; where as according to the defendants, Harinath Rautia died in or about the year 1945 and Jadunath Rautia died in or about 1946.

5. The defendants further case appears to be that they being Rautias under a custom prevalent amongst their community, the married daughters do not get any share in their fathers properties. In this case it is admitted that in the event Jadunath and Harinath died after coming into force of the Hindu Succession Act, 1956 plaintiffs would have 1/3 share each in the joint family properties.

6. In this situation only two issues arose for consideration before the learned trial court namely as to whether Jadunath and Harinath died after coming into force of the Hindu Succession Act, 1956 and whether the parties being Rautias, the married daughters do not inherit to their fathers' property in accordance with the custom prevailing amongst them.

7. So far as the second question is concerned, Mr. Bajaj, the learned counsel appearing on behalf of the appellants very fairly stated that there is nothing on record to show that after coming into force of Hindu Succession Act, 1956, any married daughter belonging to Rautias community, did not inherit her father's property. Mr. Bajaj further very fairly stated that it is the common case of the parties that they are governed by Hindu Law. A custom in order to take place of the law must be ancient. It was for the defendants to prove existence of such a custom. The question' of married daughters inheriting the properties of their fathers principally arose after coming into force of the Hindu Succession Act, 1956. The learned court below, on the basis of the materials on record, has come to the conclusion that the defendants have failed to prove the existence of any such custom. This finding of fact has not been questioned before me.

8. In this situation, this Court is concerned only with the dispute about the dates of death of Jadunath and Harinath.

9. In this case, the plaintiffs examined five witnesses whereas the defendants examined twelve witnesses. Besides the oral evidences, the plaintiffs produced the finally published record of rights of the recent survey settlement operation wherein original defendants alongwith the plaintiffs-respondents were also co-owners of the properties.

10. Mr. Bajaj, however, submitted that from a perusal of the evidences of PW 1 who was the plaintiff no. 1, it would appear that she had been paying rent in respect of the suit properties 8 years prior to the survey settlement operation and as she admitted that the survey settlement operation started 3 years prior to the finally published record of rights, it must be held that she had been paying rent since 1953. According to the learned counsel, the question of payment of rent by the plaintiff no. 1 would arise in the year 1953 as her father must have died prior thereto. The learned counsel further submitted that PW 1 in paragraph 3 of her deposition further admitted that about the death of her father and uncle, the panchayat was inform