JHARKHAND HIGH COURT
Gautam Kumar Choudhary, J.
Prabha Minz —Appellant
versus
Martha Ekka and Ors. —Respondents
S.A. No.127 of 2014
Decided on 22.4.2022

IMPORTANT POINTS
(1) Revenue records are not documents of title, but they are evidence of possession.
(2) Succession—Customs are not fossilized structures, nor are they etched on stone but are living organism rooted in life of society—Customs do change with change in occupation, belief and life of society—General customary law of inheritance among Oraon and Santhal tribes has not crystallized in a uniform general customary law having binding force debarring natural female heirs from right of inheritance.

Headnote:

(A) Specific Relief Act, 1963—Sections 31 and 34—Suit for declaration, possession and permanent injunction—Parties are members of scheduled Tribes and they are governed by their customary laws of succession—Appellant-Plaintiff is a female member of Oraon tribe and title and possession to her admitted ancestral property is under challenge on the ground that she is female and has no right of inheritance under customary law applicable to tribals—Plaintiff is heir and descendant of recorded tenant—Once chain of title by plaintiff from recorded tenant is established it becomes incumbent for defendants to establish their chain of title—Initially burden to proof prima facie case is on plaintiffs—When he gives such evidence as will support his prima facie case, onus shifts on defendants to adduce rebutting evidence to meet the case made out by plaintiffs—Plaintiff was in natural line of descent from recorded tenant—Defendants no.2 & 3 executed sale deeds claiming themselves to be descendants of recorded tenants, it was for them to have proved each and every link with original recorded tenant—Revenue records are not documents of title, but they are evidence of possession—Transfer being made without any title did not transfer any right title and interest in suit property—There is no definite evidence that amongst Oraons a daughter is excluded from inheriting property of her father in all circumstances—Defendants have failed to prove general binding custom among Oraon tribe that females were excluded from inheritance—Defendants nos.2 and 3 being strangers and not heir and descendant of recorded tenant had no right and title to execute sale-deed with respect to suit property in favour of defendant no.1, which is declared to be null and void—Judgment and decree passed by Courts below set aside and suit of plaintiff decreed. (Paras 14, 19, 22, 23, 28, 32, 33, 41, 45 and 46)

(B) Property Law—Succession—Whether customary law of inheritance amongst tribals debarring females from their right of inheritance over lands left by ancestors has binding force as per test of a binding custom—There is a difference between general and special custom—Courts have adopted divergent approach while deciding on matter relating to customary law of inheritance in case of tribals—Each case has been considered on its own merit and there is no uniform or universal recognition to customary law of inheritance among tribals excluding female from right of inheritance—An irregular and inconsistent practice of a custom cannot accord it a binding force of general customary law—Society do not exist frozen in time and tribal society too is not untouched by winds of socio-economic change—Customs are not fossilized structures, nor are they etched on stone but are living organism rooted in life of society—Customs do change with change in occupation, belief and life of society—General customary law of inheritance among Oraon and Santhal tribes has not crystallized in a uniform general customary law having binding force debarring natural female heirs from right of inheritance—Judicial decision also reflects an unease to accept and recognize such inequitable custom—Courts have refrained to uniformly or consistently recognize customary law of inheritance excluding female from inheritance so as to hold that they have acquired binding force of general customary law—In every case claim of title is to be decided on pleading and proof of customary law regarding prevailing custom—Ideally it is high time that customary law of succession should be codified and be given a statutory shape—But in the meantime each case has to be judged individually regarding applicable custom. (Paras 34, 36, 42 and 44)

(C) Indian Evidence Act, 1872—Section 106—Burden of proof—Distinction exists between burden of proof and onus of proof—Burden of proof on pleadings never shifts—It remains constant—Main principle governing burden of proof is that party who makes a legal claim must prove operative legal facts for that claim, i.e., facts that according to law are ordinarily sufficient reasons for the claim—Burden of persuasion should not be confused with evidential burden or burden of production of evidence which is an obligation which may shift between parties over course of hearing or trial. (Para 22)

Result—Appeal allowed.