The main legal point established in the judgment is that the rule of primogeniture must be proven by positive evidence and conclusive documents to have the force of law.

D.N. Upadhyay, J.

This second appeal has been preferred by the plaintiffs/appellants against the judgment dated 17th August, 1994 and decree dated 25th August, 1994, passed and signed by 3rd Additional Judicial Commissioner, Ranchi in connection with Title Appeal No.33 of 1990, whereby judgment and decree passed by Sub Judge-I, Khunti in connection with Partition Suit No.188 of 1985/63 of 1986/140 of 1987 has been set aside.

2. The Plaintiffs are appellants and defendants are respondents in this second appeal.

3. The instant appeal was admitted on 5th April, 1995 to decide the following substantial question of law:

“Whether the lower appellate court has erred in law in holding that the family was governed by the rule of primogeniture?”

4. A suit was filed for partition by the plaintiffs/appellants, claiming 1/3rd share to Plaintiff No.1, 1/6th share to Plaintiff Nos.3 to 9 jointly, 1/6th share to Plaintiff Nos.10 to 12 jointly and 1/12th share to Plaintiff No.13 from the suit properties described in the schedule given at the foot of the plaint by appointing a Pleader Commissioner to carve out separate Takhtas and also cost of the suit.

5. It is contended that plaintiffs and defendants are Mundari Khuttkatidar of village Baridih, P.S. Bundu, District Ranchi and they own and possess their ancestral Mundari Khuttkatti lands in the village. Some of the lands are possessed by them jointly and some separately. The parties are Mundas and are governed by their own customary law in the matter of inheritance and succession, according to which agnatic succession is the rule and not the cognatic. Females and persons, claiming through females, are excluded from inheritance. Widows are entitled to maintenance out of the usufruct of their husbands' properties. Similarly, unmarried daughters are also entitled to be maintained out of the usufruct of the lands of their fathers. Married daughters forfeite their rights in lands to their fathers. After the death of sonless widow, her properties are inherited and succeeded by the close agnates of her husband in equal share. Illegitimates are entitled for maintenance from their respective fathers' properties.

6. Gokul Singh Munda was the common ancestor of plaintiffs and defendants and the genealogy has been given in the plaint. Gokul Singh Munda died before cadastral survey leaving behind his four sons, namely, Ghasi Rai, Doman Singh, Lohar Singh and Beni Rai. Defendant Nos.1, 2 and Plaintiff Nos.10 to 13 are the descendants of Ghasi Rai; Plaintiff Nos.1 & 2 and Defendant Nos.9 & 10 are the descendants of Doman Singh; Plaintiff Nos.3 to 9 and Defendant Nos.3 to 8 are the descendants of Lohar Singh; and the fourth son Binrai died leaving behind his widow Mostt. Ghasni, who also died issueless.

7. It is contended that Gokul Singh Munda was Mundari Khuttkatidar of village Baridih and he was enjoying the possession thereof. After his death, his four sons jointly inherited and succeeded him in equal share and came in joint possession over the properties left by their father. In due course, to avoid frequent quarrels prevailing among the members of the family, the four brothers separated in mess and residence and began to cultivate their joint ancestral land separately for the sake of convenience. No partition among them by metes and bounds had taken place. It is further contended that the four brothers, while living separately, reclaimed some Gairmazarua lands separately according to their resources and the same have been recorded separately in the Cadastral Survey Record of Rights in various coordinate Khewats. The lands, which were in possession of Ghasi Rai, have been recorded in C.S. Khewat No.6 in the names of his sons viz. Dhum, Karam, Hiralal, Manglu and Bodh Singh (sons of Ghasi Rai died prior to cadastral survey). Hiralal and Manglu died issueless. Thereafter, the said lands were recorded in Revisional Survey Khewat No.5/1 in the names of Raghu Nath and Udainath, both sons of Dhum Munda; Revisi