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2020 Supreme(Chh) 328
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Roopautin Bai - Appellant
Versus
Sunderi Bai - Respondent
Second Appeal No. 129 of 2008
Decided On : 12-02-2020
Mr. Anup Majumdar and Mr. Gyan Prasad Shukla, Advocate, for the Appellant; Mr. Ravi Bhagat, Dy. G.A, for the Respondent
The burden of proving a custom in derogation of the general law lies heavily on the party who sets it up, and it is necessary to plead and prove the existence of the custom. The court also highlighted the requirements for establishing a valid custom and considered the impact of customs on the civil status of individuals.
Headnote:
Customary Law - Inheritance Rights - Hindu Succession Act, 1956 - [Section 100 of CPC] - [Saraswathi Ammal v. Jagadambal and Another, AIR 1953 SC 201], [Salekh Chand (Dead) by LRs. v. Satya Gupta and Ors., (2008) 13 SCC 119], [Bhimashya and Ors. v. Smt.Janabi @ Janawwa, (2006) 13 SCC 627], [Ratanlal @ Babulal Chunilal Samuska v. Sunderabai Govardhandas Samsuka, AIR 2017 SC 5797], [Madhu Kishwar and others v. State of Bihar and others, AIR 1996 SC 1864], [Indian Young Lawyers Association & Ors. v. The state of Kerala & Ors., AIR 2018 SC (Supp) 1650], [Babulal Bapurao Kodape and another v. Sau. Resmabai Narayanrao Kaurati and another, AIR 2019 Bombay 94], [Mohammad Baqar and Ors. v. Naimun Nisha Bibi & Ors., AIR 1956 SC 548]
Fact of the Case:
The plaintiff, widow of Foolsingh, claimed exclusive inheritance rights to the suit property left by Narad, citing the customary law of their 'aboriginal' tribe that daughters do not inherit their father's property. The trial court and the first appellate court dismissed the suit, finding the plaintiff failed to prove the customary law.
Finding of the Court:
The court found that the burden to prove the customary law was on the plaintiff, and she failed to establish the custom that daughters are excluded from inheriting the property of their father. The second appeal was dismissed without notice to the other side.
Issues: The main issue was the inheritance rights of the plaintiff under the customary law of the 'aboriginal' tribe, and the burden of proof regarding the existence of the custom.
Ratio Decidendi: The court emphasized the necessity for the party asserting a custom to plead and prove it, as well as the requirements for establishing a valid custom, including continuity, certainty, long usage, and reasonability. The court also considered the constitutional validity of customary laws and the impact of customs on the civil status of individuals.
Final Decision: The second appeal was dismissed in limine without notice to the other side, and no costs were awarded.
JUDGMENT
1. Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellant/plaintiff under Section 100 of the CPC against the impugned judgment and decree of the first appellate Court affirming the judgment and decree by which trial Court dismissed the suit of the plaintiff finding no merit.
2. Mr. Gyan Prasad Shukla, learned counsel for the appellant/plaintiff would submit that both the Courts below have concurrently erred in holding that plaintiff is not the exclusive titleholder of the suit property left by Narad as parties are ''Gond'' by caste and as per their customary law, daughters do not inherit the property of their father, as such, the second appeal deserves to be admitted by formulating substantial question of law for determination.
3. Suit property was originally held by Narad who had one son namely Foolsingh. Plaintiff is the widow of Foolsingh and defendants No. 1 and 2 are daughters of Narad.
4. Admittedly, parties belong to ''aboriginal'' tribe and the provisions of Hindu Succession Act, 1956 are not applicable to them. Plaintiff, being the widow of Foolsingh, brought a suit that after the death of Narad, the suit property would be solely inherited by her husband Foolsingh and defendants would not get any share in the suit property as in ''aboriginal'' tribes, daughters do not inherit the property of their father, as such, decree for declaration of title and permanent injunction be granted in her favour to which defendants opposed by filing written statement stating that the suit property was the selfacquired property of their father Narad in which they too, have equal share being class I heirs. Defendants also filed a counterclaim.
5. Learned trial Court, upon appreciation of oral and documentary evidence on record, dismissed the suit of the plaintiff as well as the counter claim of the defendants and the first appellate Court affirmed the findings recorded by the trial Court in the appeal preferred by the plaintiff against which only plaintiff has preferred the second appeal.
6. Admittedly, parties are ''Gond'' by caste and provisions of Hindu Succession Act, 1956 are not applicable to them. They are governed by their own customary laws. It is the case of the plaintiff that as per their customary law daughters do not inherit the property of their father, as such, the suit property held by Narad has been succeeded by her husband Foolsingh and after his death, plaintiff has inherited the suit property. In the light of the abovementioned fact, the burden to prove the custom would lie on the plaintiff as she has pleaded that in their community, daughters do not inherit their father''s property.
7. In this regard, decision of the Supreme Court in the matter of Saraswathi Ammal v. Jagadambal and Another, AIR 1953 SC 201 may be noticed herein profitably in which Their Lordships have clearly held that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and custom cannot be extended by analogy and it must be established inductively, not deductively. It was observed as under:
''11. The correct approach to a case where a party seeks to prove a custom is the one pointed out by their Lordships of the Privy Council in Abdul Hussein Khan v. Soma Dero, (I.L.R. 45 Cal. 450: PC ). It was there said that it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. It is well settled that custom cannot be extended by analogy. It must be established inductively, not deductively and it cannot be established by a priori methods. Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. A com
