In tribal succession disputes, the burden of proving that customary law excludes female heirs from inheritance lies upon the party asserting such exclusion; in the absence of such proof, female heirs are entitled to equal succession rights.

Judgment on Board

1. The Appellants/defendants have preferred this Second Appeal under Section 100 of the CPC assailing the judgment and decree passed by the learned IInd Additional District Judge, Bastar place Jagdalpur in Civil Appeal No. 83A/2002 dated 24.02.2004, whereby the first appeal preferred by defendants No. 1 & 2 was dismissed and the judgment and decree passed by the learned Trial Court was affirmed.

2. This Second Appeal was admitted for hearing on the following substantial question(s) of law:–

(a) Whether the plaintiff succeeded in proving custom with regard to succession that in the absence of male successor, the property devolves upon the daughter and son in law ?

(b) Whether in the absence of proof of custom as pleaded, the plaintiff succeeded to the property of the deceased – Kasai and Bende under the prevailing law of succession ?

(c) Whether the Courts below are justified in granting decree of permanent injunction restraining the defendants without even framing the issue regarding possession and without recording the finding that the plaintiffs are in possession of the suit land ?”

3. The plaintiffs, namely Ghasiram and Suku, filed a suit claiming therein reliefs of declaration of title and permanent injunction and also challenged execution of the mutation orders dated 08.08.1989 and 28.03.1997 pertaining to part of Survey Nos. 35, 3, 6, 44, 89/6 and 39, admeasuring total area of 14.27 acres situated at Village Patpa, Patwari Circle No. 73, Tehsil Jagdalpur.

4. The family tree of the parties is reproduced as under:–

      Pusau
      ┌────────────┴────────────┐
      Gunta                  Malu Bouda (issueless)
      ┌────────┴────────┐
      Miri              Mithu
      l                   │
      Kalawati (defendant No.1)
      ┌─────┴─────┐
      Kasai       Bende
      │
      Pechay (daughter)
      │
      Suku (husband) (Plaintiff No.2)
      │
      Ghashiram (son) (Plaintiff No.1)
    

5. The plaintiffs pleaded that they belong to the Muria caste, and according to their custom, in absence of any male member in family, the son-in-law who resides in his wife’s parental home (Ghar-Jamai) would acquire right over the property along with his wife and children and would inherit the property of his father-in-law.

6. Admittedly, Kasai had no son and Pechai was the only daughter, who was married to Suku (Plaintiff No.2), Ghasiram (plaintiff No.1) is the son of Suku. Defendant No. 1 Kalawati is the widow of Mithu and defendant No. 2 Judu is the son of Mithu.

7. Civil Suit No. 68A/60 was filed by Kasai and Bende, both wives of Miri, against Malu and Mithu for partition of ancestral property. A settlement took place between the parties and a compromise decree was passed on 13.04.1961. Plaintiffs Kasai and Bende received 12.52 acres of land, whereas Malu received 3.55 acres and Mithu received 9.15 acre. Survey Nos. 29/6 and 89 were purchased by Kasai and Bende through a registered sale deed. Bende died issueless on 01.01.1993 and after her death the property was recorded solely in the name of Kasai.

8. In absence of any male member from Kasai and Bende, the property got recorded in the name of Mithu.

9. Pechai, daughter of Kasai, died in the year 1991. A Will deed was executed by Mithu in favour of defendant No. 1 Kalawati and defendant No. 2 Judu. The plaintiffs, who are the son and husband of Pechai, filed the suit claiming right over the suit property and challenged the mutation order passed by