In the absence of a Central Government notification extending the Hindu Succession Act to Scheduled Tribes, succession is governed by customary law. The burden of proving such custom lies on the party asserting it, requiring clear, cogent evidence of an ancient, certain, and consistently practiced rule of law.

CAV Order

1. The present Second Appeal is being preferred under Section 100 of the Code of Civil Procedure, 1908, by the appellants being aggrieved by and dissatisfied with the judgment and decree dated 07/02/2004 passed by the learned IInd Additional District Judge, Raigarh (Chhattisgarh) in Civil Appeal No. 37A/2001, whereby the learned First Appellate Court allowed the appeal and set aside the judgment and decree dated 10/01/2001 passed by the learned Trial Court in Civil Suit No. 16A/1997 in the matter titled Mangalu & Another Vs. Jhario & Others. The learned First Appellate Court failed to properly appreciate the pleadings, documentary evidence, and findings recorded by the learned Trial Court, which had rightly decreed the suit in favour of the plaintiffs after due consideration of the material available on record, hence, this appeal before this Court, raising substantial questions of law which arise from the impugned judgment and decree and which require consideration and adjudication by this Court.

2. Facts of the case, as canvased by the appellants, are that the appellants, hereinafter referred to as the plaintiffs, instituted a Civil Suit before the Court of the learned Civil Judge Class-II, Gharghoda, seeking a decree for declaration of title to the extent of three-fourths share of the half portion of the suit land described in Schedule ‘A’, admeasuring 17.989 hectares, along with confirmation of their possession over the said property. The plaintiffs pleaded that the parties to the suit belong to the same family and are descendants of common ancestors, the genealogy of which has been detailed in paragraph 2 of the plaint. It was the case of the plaintiffs before the Trial Court that they belong to the Uraon caste, which is recognized as a Scheduled Tribe, and therefore the matters relating to succession and inheritance in their community are governed by their customary tribal laws and usages. According to the plaintiffs, the ancestral property described in Schedule ‘A’, measuring 17.989 hectares, had been partitioned long ago between Choital and Chunda, and thereafter the respective branches remained in separate possession of their allotted shares in accordance with that partition. The plaintiffs further pleaded that they are the grandsons of Chunda. Their father had two brothers, namely Fagu and Soma. Soma, who was the father of the plaintiffs, died during their childhood, and thereafter the plaintiffs were brought up and maintained by their uncle Fagu. It was further stated that Fagu had no male issue, and the defendant Nos. 1 to 3 are the daughters of Fagu.

According to the plaintiffs, no formal partition had taken place between Fagu and Soma during their lifetime and they continued to reside together as members of a joint family. Fagu lived with the plaintiffs until his death, and the last rites and funeral ceremonies of Fagu were performed by the plaintiffs. It was further pleaded that during his lifetime Fagu had partitioned the property belonging to himself and Soma amongst the plaintiffs, and that such arrangement was made with the knowledge and consent of defendant Nos. 1 to 3 and 4. Pursuant to the said arrangement, the plaintiffs remained in cultivating possession of their respective shares in the suit property. The plaintiffs further contended that subsequently defendant Nos. 1 to 3, allegedly at the insti