The burden of proof for customs excluding daughters from inheritance lies with the defendants; failure to prove such customs means daughters retain inheritance rights under tribal law.

1. This plaintiff's second appeal under S.100 of the CPC was admitted for hearing by formulating the following substantial question of law: "Whether both the Courts below are justified in dismissing the suit of the plaintiff by recording a perverse finding holding that the plaintiff is Gond by caste and after death of her father Rai Singh, she will not inherit the suit property as per custom prevalent in Gond community ?"
(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.)

2. The following genealogical tree would demonstrate the relationship among the parties:

3. The suit property was originally held by Dharmu. Dharmu had no issue. The plaintiff is daughter of Dharmu's brother Ramsingh. Dharmu died issueless in the year 1950 and thereafter his property devolved upon Ramsingh. It is the case of the plaintiff that after death of Dharmu and Ramsingh she being only sole heir of Dharmu being Ramsingh's daughter would inherit the suit property and the defendants who are her grandfather's brother sons would not inherit the suit property and occasion to file a suit has arisen on account of she having been dispossessed from the suit property by the defendants.

4. The defendants filed their written statement and controverted the plaint averments stating inter alia that they are legal heirs of Mohan, who was brother of Khandu. Khandu had two sons Dharmu and Ram Singh and the suit property belonged to Dharmu who was staying with them, Dharmu was issueless and they are in possession of Dharmu's property and cultivating the same. They further pleaded in para5 of written statement that in Gond caste and as per prevailing customs, daughter has no right in father's or uncle's property.

5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 29.10.98, dismissed the suit solely on the ground that the plaintiff has failed to prove the customs regarding right of daughter to inherit the property of her father or uncle, which was assailed by the plaintiff before the first appellate Court, but she remained unsuccessful on finding that the fact of custom by which daughter is entitled to inherit the property of her father or uncle is not established, leading to filing of this second appeal under S.100 of the CPC before this Court, in which substantial question of law has been formulated which has been setout in the opening paragraph of this judgment.

6. Mr.Shobhit Koshta, learned counsel for the appellant / plaintiff, would submit that the plaintiff being niece of Dharmu and daughter of Ramsingh has inherited the suit property after death of Dharmu and her father Ramsingh and it is the claim of the defendants that in Gond caste daughters do not get the property of their father and therefore, would not inherit any share in the property of their father and it was the defendants who could have pleaded that in Gond caste daughters do not get the property of their father and could have established the same in accordance with law. He would further submit that both the Courts below have erred in placing the burden upon the plaintiff that since she could not establish that in Gond caste there is custom that daughters would inherit the property of their father and as such, the finding recorded by both the Courts below is wholly erroneous. The view taken by both the Courts below placing negative burden on the plaintiff to prove the custom by which daughters would inherit the property of their father is erroneous, as such, the judgment and decree of both the Courts below deserve to be set aside and the suit