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2020 Supreme(Chh) 320
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Surjotin - Appellant
Versus
Chamrin Bai - Respondent
Second Appeal No. 162 of 2008
Decided On : 28-01-2020
Mr. D.N. Prajapati, Advocate, for the Appellant; Mr. Shalvik Tiwari, Advocate, Mr. Anshuman Rabra, P.L, for the Respondent
The burden of proving a custom in derogation of the general law lies heavily on the party asserting it, and it must be established with clear and unambiguous evidence.
Headnote:
Hindu Succession Act - Halba Community - Section 2(2) of the Act of 1956 - AIR 1953 SC 201, (2008) 13 SCC 119, (2006) 13 SCC 627, AIR 2017 SC 5797, AIR 1996 SC 1864, AIR 2018 SC (Supp) 1650, AIR 2019 Bombay 94, AIR 1956 SC 548
Fact of the Case:
The plaintiffs, belonging to the 'Halba' community, sought declaration of title and possession of their father's property, claiming that daughters do not inherit the property as per their custom. Both trial and appellate courts dismissed the suit for failure to prove the custom.
Finding of the Court:
The courts found that the plaintiffs failed to establish the valid custom excluding daughters from inheriting their father's property in the 'Halba' community, leading to the dismissal of the suit.
Issues: Validity of the custom in the 'Halba' community excluding daughters from inheriting their father's property under the Hindu Succession Act.
Ratio Decidendi: The burden of proving the custom was on the plaintiffs, and they failed to provide clear and unambiguous evidence to establish the custom. The courts relied on precedents to emphasize the necessity of proving the ancient, uniform, continuous, and reasonable nature of the custom.
Final Decision: The second appeal was dismissed in limine without notice to the other side.
JUDGMENT
1. Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellants/plaintiffs under Section 100 of the CPC questioning the impugned judgment and decree passed by the first appellate Court affirming the judgment and decree of the trial Court by which plaintiffs'' suit for declaration of title and possession has been dismissed finding no merit.
2. Mr. D.N. Prajapati, learned counsel for the appellants/plaintiffs would submit that both the Courts below have concurrently erred in not holding that in ''Halba'' community (Scheduled Tribe), daughters do not get any share in the property of their father as the provisions of Hindu Succession Act, 1956 are not applicable to them by virtue of Section 2(2) of the Act of 1956 by recording a finding which is perverse and contrary to record, as such, the second appeal deserves to be admitted for hearing by formulating substantial question of law in this regard.
3. The suit property was originally by Kulanjan who had only one son namely Atmaran and five daughters. Plaintiffs are the widow and children of Late Atmaram and defendants are the daughters of Late Kulanjan.
4. It is the case of the plaintiffs that they belong to ''Halba'' community (Scheduled Tribe) and the provisions of Hindu Succession Act, 1956 are not applicable to them by virtue of Section 2(2) of the Act of 1956 and as per their custom, daughters do not inherit the property of their father. Only the son succeeds to his father''s property and daughter would inherit the property only if there is no son. They further pleaded that Kulanjan got the suit property from his inlaws'' family as he was kept as lumsena by his fatherinlaw and therefore, sought declaration stating that they are the exclusive titleholders of the suit property as the defendants, being the daughters of Kulanjan, would not succeed the suit property to which all the defendants except defendant No. 4 opposed and claimed equal share in the suit property.
5. Learned trial Court, upon appreciation of oral and documentary evidence on record, dismissed the suit finding no merit which the first appellate Court also affirmed in the appeal preferred by the plaintiffs holding that plaintiffs have miserably failed to prove and establish the custom that in ''Halba'' community (Scheduled Tribe), daughters do not succeed the property of their father and only the son succeeds the property of his father as the provisions of Hindu Succession Act are not applicable to them by virtue of Section 2(2) of the Act of 1956.
6. Plaintiffs have pleaded that in their ''Halba'' community (Scheduled Tribe) daughters are not entitled to get any share in the property of their father as the provisions of Hindu Succession Act are not applicable to them by virtue of Section 2(2) of the Act of 1956. The question for consideration would be whether the plaintiffs have been able to plead and establish the valid custom that prevails in their tribe i.e. ''Halba'' community in which daughters do not inherit any share in the property of their father ?
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
