Chattisgarh High Court
Ram Charan vs Sukhram on 1 July, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 465 of 2009
Judgment Reserved on 21.04.2022
Judgment Delivered on 01.07.2022
1. Ram Charan S/o Ragam Sai Aged About 51 Years Caste - Gond R/o
Village - Manpur, Police Station And Tahsil - Surajpur, District -
Sarguja, Chhattisgarh.
2. Tajo D/o Ragam Sai Aged About 55 Years Caste - Gond R/o Village
- Khutia, Tehsil - Ambikapur, District - Sarguja Chhattisgarh.
3. Sita D/o Ragam Sai Aged About 53 Years Caste - Gond R/o Village -
Karhiyakhar, Tehsil - Baikunthpur, District - Koriya Chhattisgarh.
4. Kotaa D/o Ragam Sai Aged About 53 Years Caste - Gond R/o
Village - Lachbar, Tehsil - Baikunthpur, District - Koriya Chhattisgarh.
5. Bifia D/o Ragam Sai Aged About 49 Years Caste - Gond R/o Village
- Urunduga, Tehsil - Baikunthpur, District - Koriya Chhattisgarh.
6. Bade Bazaari D/o Ragam Sai Aged About 47 Years Caste - Gond
R/o Village - Danooli, Tehsil - Surajpur, District - Sarguja
Chhattisgarh.
7. (Deleted ) Ransai (Dead ) As Per Court Order Dt. 18-02-2020.
8. Chhote Bazaari D/o Ragam Sai Aged About 43 Years Caste - Gond
R/o Village - Kasra, Tehsil - Baikunthpur, District - Koriya
Chhattisgarh.
9. (Deleted) Ragam Sai As Per Hon'ble Court Order Dated (03-11-
2020)
---- Appellants
Versus
1. Sukhram S/o Late Shri Hiradhan, Aged About 42 Years Caste -
Gond, R/o Village - Mani, Tehsil - Surajpur District - Sarguja
Chhattisgarh.
2. Budi Ram S/o Late Shri Hiradhan Aged About 40 Years Caste -
Gond, R/o Village - Mani, Tehsil - Surajpur District - Sarguja,
Chhattisgarh.
3. Bhagat (Deleted Through Lrs) As Per Honble Court Order Dated 03-
11-2020.
3 (A) Ram S/o Late Shri Bhagat Aged About 40 Years R/o village
Mani, P.S. and Tehsil- Surajpur, District Surajpur.
2
3 (B) Laxman S/o Late Shri Bhagat Aged About 37 Years R/o village
Mani, P.S. and Tehsil- Surajpur, District Surajpur.
4. Gedi D/o Late Shri Budhram Aged About 56 Years Caste - Gond,
R/o Village - Getra, Tehsil - Ambikapur, District - Sarguja,
Chhattisgarh.
5. Jagat S/o Late Shri Budhram Aged About 52 Years Caste - Gond,
R/o Village - Mani, Tehsil - Surajpur District - Sarguja, Chhattisgarh.
6. Shiv Balak (Deleted Through Lrs) As Per Hon'ble Court Order Dated
03-11-2020.
6(A) Bharat Ram S/o Late Shri Shivbalak Aged About 48 Years, R/o
village Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
6(B) Maniyaro W/o Late Shri Shivbalak, Aged About 72 Years R/o
village Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
7. Nanaah (Deleted Through Lrs) As Per Honble Court Order Dated
03-11-2020.
7(A) Deepak S/o Late Shri Nanaah Aged About 30 Years, R/o village
Manpur, P.S. and Tehsil- Surajpur, District Surajpur.R/o village
Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
7(B) Somar Sai S/o Late Shri Nanaah Aged About 28 YearsR/o
village Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
7(C) Phoolkunwar W/o Late Shri Nanaah Aged About 54 Years,R/o
village Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
8. Bhurri D/o Late Shri Amar Sai Aged About 59 Years Caste - Gond,
R/o Village - Mahgai, Tehsil - Surajpur, District - Sarguja,
Chhattisgarh.
9. Sarnaparhin D/o Late Shri Amar Sai, Aged About 54 Years Caste -
Gond, R/o Village - Sarnapara (Amarhar), Tehsil - Baikunthpur,
District - Koriya Chhattisgarh.
10.Satiparhin (Deleted Through Lrs) As Per Honble Court Order Dated
03-11-2020.
10 (A) Vijay Kumar S/o Late Shri Ramsai Aged About 26 Years R/o
village Satipara, P.S. and Tehsil- Baikunthpur, District Koriya.
11. Rampyari (Deleted) Through Lrs., As Per Court Order Dt. 18-02-
2020.
11.(A) Smt. Ram Bai, D/o Late Rampyari Aged About 45 Years R/o
village Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
11.(B) Mohan, S/o Late Rampyari, Aged About 30 Years R/o village
Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
11.(C) Gopal, S/o Late Rampyari, Aged About 28 Years R/o village
Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
11.(D) Brijlal, S/o Late Rampyari, Aged About 25 Years R/o village
Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
12. Bhup Sai (Deleted) Through Lrs As Per Honble Court Order Dated
03-11-2020.
3
12.1 - (A) Jhitku S/o Late Shri Bhupsai Aged About 35 Years R/o
village Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
13. Keshav S/o Shri Bhoat, Aged About 39 Years Caste - Gond, R/o
Village - Manpur, Tehsil - Surajpur District - Sarguja, Chhattisgarh.,
District : Surguja (Ambikapur), Chhattisgarh
14. Taravati D/o Late Shri Bhoat, Aged About 33 Years Caste - Gond,
R/o Village - Gaiji, Police Station - Khadgawa, Tehsil Manendragarh,
District - Koriya Chhattisgarh., District : Koriya (Baikunthpur),
Chhattisgarh
15. Dewarr (Deleted) Through Lrs., As Per Court Order Dt. 18-02-2020.
15.(A) Smt. Sonia Bai, W/o Late Dewarr Aged About 50 Years,
village - Manpur, P.S. and Tehsil Surajpur, District Surajpur (C.G.)
16. Tilsiheen (Deleted) (As Per Honble Court Order Dated 03-11-2020)
17. Sitaram (Deleted ) Through Lrs., As Per Court Order Dt. 18-02-2020.
17.(A) Smt. Sukhmania Bai, W/o Late Sitaram, Aged About 55 Years
R/o village Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
17.(B) Prem Singh, S/o Late Sitaram, Aged About 40 Years R/o
village Manpur, P.S. and Tehsil- Surajpur, District Surajpur.
18. State Of Chhattisgarh Through Collector, Ambikapur, District -
Sarguja Chhattisgarh.
---- Respondents
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For Appellants : Mr. Surfaraj Khan, Advocate
For Respondents No. 11 (a) to (d), 15(a) and 17 (a), (b) : Mr. Shakti
Raj Sinha, Advocate
For State : Mr. Ravi Pal Maheshwari, Panel Lawyer
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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. This is plaintiffs' Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 21.04.2009 passed by the learned Second Additional District Judge (F.T.C.), Surajpur District - Sarguja in Civil Appeal No. 1-A/2008, by which learned Second Additional District Judge has dismissed the appeal affirming the judgment and decree dated 29.02.2008 passed by the Civil Judge Class -2, Surajpur, District - Sarguja in Civil Suit No. 21-A/2008.
2. The appeal was admitted on 22.07.2020 on the following 4 substantial question of law :-
(I) Whether both the Courts below were justified in dismissing the suit of the plaintiffs by recording a finding which is perverse and contrary to the record ?
3. During the midst of the arguments another substantial question of law emerged for determination of this Court is whether both the courts below were justified in not applying the provisions of Hindu Succession Act on the facts and circumstances of the case?
4. Learned counsel for the appellants and learned counsel for the respondents No. No. 11 (a) to (d), 15(a) and 17 (a), (b) as well as Government Advocate made submission with regard to substantial question of law.
5. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 21-A/2008.
6. The plaint averments, in brief, are that plaintiffs have filed civil suit before the Civil Judge, Class II, Surajpur on 17.03.1993 for partition and possession of the suit property as mentioned in the schedules A-B-C of the plaint measuring 9.227 acres situated at village Manpur, 4.32 acres situated at village Devipur and 13.53 acres situated at village Mani respectively. The plaintiffs have pleaded that the plaintiff and defendants No. 1 to 16 belong to Gond tribe but since their ancestors have adopted hindu dharma, therefore, they are governed by hindu law. It has been contended that plaintiffs and defendants No. 1 to 15 ancestors and father of defendant No. 16 Bhajju have acquired property as mentioned in Schedule A and B situated at village Manpur and Devipur and from the nucleus of the property of Schedule A and B, late Bhajju purchased land belongs to Schedule C. It has been further contended that after acquiring the property in Schedule C, Bhajju started living with his elder son Bhudhram at village Mani. At that time Bhudhram has shown willingness to separate from the joint hindu family. Accordingly late Bhajju with his son has been given share of Budhram and they were living separately, therefore, they will not claim share in the joint hindu family property mentioned in Schedule A and B. After getting his share late Bhajju started living with his son Amarsai, Sohan, Duhan, Amirsai and daughter Dhaiya. Even after marriage Dhaiya is living her father, brothers 5 and her husband. After death of late Bhajju his legal heirs son Amarsai, Sohan, Duhan, Amirsai and daughter Dhaiya have taken title over the suit property. The plaintiffs and defendants No. 6 to 16 have partitioned the property mentioned in Schedule A and B to the extent of 1/5th share is the right of the plaintiffs, but the defendants No. 6 to 16 have denied it and have challenged the title of the plaintiffs with regard to suit property mentioned in Schedule A and B which necessitated the plaintiffs to file the present suit. On the above factual matrix the plaintiffs have prayed that it may kindly be declared that plaintiffs and defendants are joint owner of the suit property mentioned in Schedule A and B to the extent of 1/5th share. It has also been prayed that defendants No. 1 to 5 if they claim their share then property mentioned in schedule A and B will be treated as Joint hindu family property and partition be done to the extent of 1/6th share of property mentioned in Schedule A, B and C.
7. Defendants No. 13.a and b have filed written statement and supported the case of the plaintiffs whereas defendant No. 16 has filed affidavit contending that they are trible and they are governed by the customs not by hindu law. It has been contended that plaintiff Ram Charan is son of aunt and in the Gond community son of aunt is not entitled to get any share in the property. It has been further contended that the defendants have also filed suit before the Civil Judge, Class -I wherein plaintiffs are also party to the case, therefore the present suit under Section 10 of the CPC is not maintainable. The partition has already been taken place 30-40 years back, hence the suit is barred by limitation, and would pray for dismissal of the suit.
8. On the pleadings of the parties, learned trial Court has framed as many as 5 issues, relevant issues are extracted below:-
1. Whether, the plaintiffs and defendants No. 6 to 16 are joint owner of the property mentioned in schedule A and B?
2. Whether, plaintiffs are entitled to get 1/5th share of the property mentioned in Schedule A and B of the plaint ?
9. The plaintiffs to substantiate their case have examined Ramcharan PW/1, Bhupsai as PW/2, Lalsai as PW/3 and 6 exhibited documents copy of the affidavit as Ex.P/1, revenue record of Sarguja Settlement as Ex.P/2 and Ex.P/3, copy of revenue record register as Ex.P/4, rights record as Ex.P/5, Form B1 as Ex.P/6 to Ex.P/11, record of rights 1954-55 Ex.P/12, form B1 1998-89 as Ex.13. The Defendant has examined Sitaram as DW/1 and exhibited documents order passed by First Additional Judge, Surajpur in Civil Appeal No. 13/2004 as Ex.D/1, order sheets of Civil Suit No. 51A/1995 as Ex.D/2, copy of plaint as Ex.D/3.
10. The plaintiffs' witness Raj Charan has been examined in chief by way of affidavit reiterated the stand taken in the plaint. The witness was cross-examined by the defendant and he has stated that he belongs to Gond triable but they are governed by Hindu law. Sitaram is his maternal brother and he is son of aunt of defendant No. 16a. He denied that son of aunt is not entitled for share in the property. He has also stated that his maternal grand father Bhajju has taken care of his mother and his father was Gharjiha Damad (residing in in-laws house). Their maternal grand father has given them the land. He has also stated that in other case which is pending he has also denied that partition between Sitaram has already been taken 30 years back. Another witness Bhupsai was examined in chief by way of affidavit he has admitted that defendant No. 16a Sitaram and plaintiff Ram Charan are maternal uncle and son. Partition has already been taken but no documentation has been done. He has stated that a case between Sitaram and Bhagat is going on. He has stated that earlier aunt and her son were not getting share in the property but now it is being given. Plaintiffs' other witness Lalsai who has been examined in chief by way of affidavit has supported the case of the plaintiffs and in the cross examination he has admitted that aunt's son are getting property in their community.
11. Learned trial court considering the evidence, material on record has recorded a finding that plaintiffs are unable to plead and prove the custom wherein daughters are getting their shares. No member of the community has been examined by the plaintiff to prove their case whereas burden lies upon them to prove the 7 customs. It has been recorded by the trial Court that plaintiffs are taking stand that they Gond tribe and governed by Hindu law. This submission has not been considered as by the learned trial Court as under Section 2(ii) of the Hindu Succession Act, 1956 it clearly provides that Hindu Succession Act will not be applicable to the tribes. Therefore, issue No. 3 has been decided against the plaintiffs. It has been recorded by the learned trial Court htat civil suit No. 51/95 was filed wherein order for partition has already been done on 27.02.2004, therefore, it is quite vivid that partition has already been taken place.
12. This order was assailed before the First Appellate Court under Section 96 of the CPC contending that the learned trial Court has miserably failed to appreciate the evidence, material on record though the plaintiffs have proved their case whereas no evidence was adduced by the defendants to rebut the evidence of the plaintiffs. Even the defendants have not rebutted the pleadings still the learned trial Court has committed illegality in dismissing the suit. Learned first appellate court appreciating the evidence and considering the fact that plaintiff is son of aunt of defendant No. 16 and aunt has no right over the property as the plaintiffs have not adduced any evidence to prove the factum of pleadings made by them that daughter and son of the aunt are entitled to inherit the property, accordingly, learned first appellate Court dismissed the appeal. This order is being challenged by the defendants by filing second appeal before this Court.
13. While admitting the appeal this Court has framed afore-stated substantial question of law on 22.04.2020.
14. Learned counsel for the plaintiffs would submit that both the courts below have committed error in not framing issues with regard to succession among tribes in absence of law, customs and usage. He would further submit that the plaintiffs are legal heirs of Gharjiya daughter of late Bhajju, therefore, they are entitled to get share in the property being co-parcener as per the Hindu Succession Act. He would further submit that since the trial Court has not framed issues with regard to the succession of the property claimed by daughter, therefore, the matter should be 8 remanded back. In support of his submission he would refer to judgment of Hon'ble Supreme Court in case of Labishwar Manjhi vs Pran Manjhi 1, Dr.Surajmani Stella Kujur vs Durga Charan Hansdah & Anr 2 and the judgment of the coordinate Bench of this Court in SA No. 270 of 2003 (Daduram & others Vs. Bhuri Bai & others) decided on 06.02.2019. He would further submit that as per the provisions of Section 2(2) of the Hindu Succession Act, daughters are entitled to inherit the property. As per the customs prevailing in the tribals which is in long usage. He would further submitted that as per the Central Provinces of Law, 1875 any law for the time being in force, the Courts shall act according to justice equity and good conscience and daughter are entitled to get their shares.
15. On the other hand, learned counsel for the defendants would submit that plaintiffs have failed to prove that aunt is entitled to get property and daughters are entitled to get property as per the tribal community as the Hindu Succession Act is not applicable to them. He would submit that the learned trial Court has passed very reasoned order which has been affirmed by the learned first appellate Court, there is no illegality or perversity which warrants interference by this Court.
16. I have heard learned counsel for the parties, perused the documents with utmost satisfaction.
17. For better understanding it is expedient for this Court to extract the provisions of Section 2 (2) of the Hindu Succession Act, Section 5 and 6 of the Central Province Law Act, 1875 which are as under;-
"Section 2(2) of the Hindu Succession Act
-Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
The Central Province Law Act, 1875
5. Rule of decision in cases of certain classes.- In questions regarding inheritance, special property of females, betrothal, marriage, dower, adoption guardianship, minority, 1 2000 (8) SCC 587 2 2001 (3) SCC 13 9 bastardy, family relations wills ,legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be the Muhammadan law in cases where the parties are Muhammadans, and the Hindu law in cases where the parties are Hindus, except in so far a such law has been by legislative enactment altered or abolished, or is opposed to the provisions of this Act.
6. Rules in cases not expressly provided for.- In cases not provided for by section 5, or by any other law for the time being in force, the Courts shall act according to justice equity and good conscience."
18. For determining the substantial question of law No. 1 and to record a finding whether courts below were justified in dismissing the suit on a perverse finding, this Court has to examine whether the plaintiffs have been able to prove the customs that Gharjiya daughters are entitled to get share in the property left by his father in absence of applicability of the Hindu Succession Act, 1956 ? The plaintiffs have not examined any person who is well aware of the customs prevailing in the tribals, at least the plaintiffs should have examined an old person in the community to narrate the customs with regard to grant of share to the daughter. The law has been well settled that how customs has to be proved. This issue with regard to proving of the customs has come up for consideration before Hon'ble Supreme Court in case of Salekh Chand vs. Satya Gupta and Ors. 3 in which Hon'ble the Supreme Court has held as under:-
"21. In Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad 299 (FB)], it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. It is not disputed that even under the old Hindu law, adoption during the lifetime of a male issue was specifically prohibited.
In addition, I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of controversy whether there was such a custom, it can be said that even if there was such a custom, the same was not a valid custom."
22. It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and 3 (2008) 13 SCC 119 10 not by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well established law that custom cannot be enlarged by parity of reasoning.
23. Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them; but the decision would not in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the notice of the courts, the courts, may hold that the custom was introduced into law without the necessity of proof in each individual case.
24. Custom is a rule which in a particular family or a particular class or community or in a particular district has from long use, obtained the force of law. Coming to the facts of the case P.W.1 did not speak any thing on the position either of a local custom or of a custom or usage by the community, P.W.2, Murari Lal claimed to be witness of the ceremony of adoption he was brother-in-law of Jagannath son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the Court. He did not speak a word either with regard to the local custom or the custom of the community. P.W.3 as observed by the lower appellate Court was only 43 years' old at the time of his deposition where as the adoption had taken place around 60 years back. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by P.W.2, Murari Lal. He himself did not speak of such a custom. The evidence of a plaintiff was thus insufficient to prove the usage or custom prevalent either in township of Hapur and around it or in the community of Vaish.
25The evidence of D.W.3 refers only to one instance. From his evidence it cannot be inferred that Om Prakash had adopted Munna Lal who was his real sister's son. As already pointed out above, the trial court found that the evidence of D.W.3 was not so clear and unambiguous as to lead to no other conclusion except that Munna Lal was son of real sister of Om Prakash. Besides, this solitary instance of adoption of his sister's son cannot amount to long usage, which has obtained the force of law. Mulla has categorically commented that where the evidence shows that the custom was not valid in numerous instances, the custom could not be held to be proved. A custom derives its force from the evidence from long usage having obtained the force of law. All that is necessary to prove is that usage has been acted upon in practice for such a long period with such invariability as to 11 show that it has, by consent, been submitted so as to establish governing rules of a particular locality or community.
26. A custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom in order that it may be legal and binding, must have been used long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality.
27. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj- i- am or Manual of Customary Law."
19. Hon'ble Supreme Court in case of Ratanlal vs Sundarabai Govardhandas Samsuka (dead) Through Lrs and Others 4 has examined the issue of custom in details which is as under:-
"13. India has a strong tradition of respect for difference and diversity which is reflected under the Hindu family laws as it is applicable to diverse communities living from the southern tip to northern mountains, from western plains to eastern hills. Diversity in our country brings along various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to be governed by customs within the foundation of law. It is well known that a custom commands legitimacy not by an authority of law formed by the State rather from the public acceptance and acknowledgment. This Court in Thakur Gokal Chand v. Pravin Kumari, AIR 1952 SC 231, has explained the ingredients of a valid custom in the following manner-
"A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian condition. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality".
Black's Law Dictionary defines customary law as 4 (2018) 11 SCC 119 12 "customs that are accepted as legal requirements or obligatory rules of conduct, practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they are laws."
Privy Council in The Collector of Madura v. Moottoo Ramalinga Sathupathi, 12 MIA 397 (1868), has observed that "under the Hindu System of law, clear proof of usage will outweigh the written text of law".
14. As per the settled law under Section 2(a) the Act, the following ingredients are necessary for establishing a valid custom-
a. Continuity.
b. Certainty.
c. Long usage.
d. And reasonability.
As customs, when pleaded are mostly at variance with the general law, they should be strictly proved. Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner. It should be noted that, there are many types of customs to name a few- general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend 1 Bryan A. Garner, Black's Law Dictionary (10th Eds.), p. 468. on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant.
15. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non- litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of 13 persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration. In this case at hand there was no pleading or proof which could justify that the above standards were met.
16. It would not be out of context to observe certain judicial decisions which throw some light on the issue raised in this case instant. In Rup Chand v. Jambu Prasad, (1910) ILR 32 247, Privy Council held that-
"The custom alleged in the pleading was this: "
Among the Jains Adoption is no religious ceremony, and under the law or custom there is no restriction of age or marriage among them." And that appears to be the custom found by the High Court to exist. But upon the argument before their Lordships it was strenuously contended that the evidence in the present case, limited as it is to a comparatively small number of centers of Jain population, was insufficient to establish a custom so wide as this, and that no narrower custom was either alleged or proved.
In their Lordships' opinion there is great weight in these criticisms, enough to make the present case an unsatisfactory precedent if in any future instance fuller evidence regarding the alleged custom should be forthcoming".
17. In Sheokuarbai v. Jeoraj, AIR 1921 PC 77, Privy Council observed that, among the Sitambari Jains the widow of a sonless Jain can legally adopt to him a son without any express or implied authority from her deceased husband to make an adoption, and the adopted son may at the time of his adoption be a grown-up and married man. The only ceremony to the validity of such an adoption is the giving and taking of the adopted son.
18. It is very much evident that the appellant in this case has failed to produce any evidence to prove that such practice has attained the status of general custom prevalent among the concerned community. Custom, on which the appellant is relying, is a matter of proof and cannot be based on a priori reasoning or logical and analogical deductions, as sought to be canvassed by the appellant herein. Hence the issue is answered against the appellant."
20. Thereafter, again the issue of custom came up for consideration before Hon'ble Supreme Court in case of Aliyathammuda Beethathebiyyappura Pookoya and Another vs. Pattakal Cheriyakoya and Others 5 wherein in para 40 the Hon'ble Supreme Court has held as under :-
5 2019 (16) SCC 1 14 "40. We may now consider what the principles governing the establishment of a custom under Muslim law are. It is a settled position of law that a custom in order to be legal and binding must be certain, reasonable and acted upon in practice for a long period with such invariability and continuity that it has become the established governing rule in a community by common consent. It is equally settled that it is incumbent upon the party relying on the custom to plead and prove it."
21. Now coming to the facts of the case, it is quite vivid that he learned trial Court after appreciating the facts and evidence has recorded a finding that plaintiffs are unable to prove the customs. The plaintiffs have failed to prove customs that daughters are entitled get share in the triable by examining any independent witness. The finding recorded by the trial Court is in conformity with the law laid down by Hon'ble the Supreme Court in Salekh Chand (Supra), Ratanlal (Supra) & Aliyathammuda Beethathebiyyappura Pookoya (Supra), therefore, the finding recorded by the trial Court is neither perverse nor contrary to the record, as such, the finding of the learned trial Court and affirmed by the learned first appellate Court does not warrant any interference of this Court.
22. Learned counsel for the appellants in his second limb of submission would submit that in absence of any provisions for considering the grant of inheritance with regard to tribal or customs prevailing in the tribal, Courts are required to decide right according to justice, equity and good conscience and share can be allotted to the plaintiffs whose mother is Gharjiya daughter of the defendant No. 16. In support of his submission, he would rely on the judgment of coordinate Bench of this Court in Daduram (Supra) and would submit that the plaintiffs' appeal may be allowed and the share of the property left by grand-father of the plaintiffs be kindly granted.
23. It is worthwhile to mention here that the Act of 1875 has already been repealed by the Parliament on 30th March, 2018 and repealing of the Act could not be brought to the notice of the coordinate Bench while deciding the Second Appeal No. 270/2003 on 06.02.2019, the very foundation of the submission of the learned counsel for grant of share on the basis of Act of 1875 15 has lost its significance. Therefore, this submission made by the learned counsel for the appellants also deserves to be negative. Accordingly, the substantial question of law framed by this Court is answered in negative.
24. With regard to the substantial question of law framed by this Court on 21.04.2022, it has been contended by learned counsel for the appellants that though plaintiffs belong to Gond community but since ancient time, they have embraced Hindu faith religion and are governed by the Hindu Succession Act, 1956 and would submit that the daughters are entitled to get share in the property inherited by her father.
25. On the other hand, learned counsel for the respondents would submit that the plaintiffs in their evidence have not been able to prove that they are following the Hindu culture and tradition and evidence adduced by them before the trial Court is silent in this regard. There is no evidence brought on record by the plaintiffs before the trial Court with regard to fact that they are following the Hindu custom and tradition, therefore, the learned trial Court has rightly held that the plaintiffs are not governed by the Hindu Succession Act, which has been rightly affirmed by the learned appellate Court, therefore, the substantial question of law framed by this Court that the learned courts below were justified in not applying the Hindu Succession Act, is answered against the plaintiffs.
26. From the analysis of facts and materials, evidence on record, considering the law on the subject, I find that the substantial questions of law framed by this Court deserve to be answered against the plaintiffs. Accordingly, the judgment and decree passed by both the courts below are just and proper and in compliance with Hindu Succession Act on the facts and circumstances of the case.
27. Accordingly, the appeal filed by the plaintiffs is dismissed and the judgment and decree dated 21.04.2009 passed by the learned Second Additional District Judge (F.T.C.), Surajpur District - Sarguja in Civil Appeal No. 1-A/2008 and the judgment and decree dated 29.02.2008 passed by the Civil Judge Class -2, Surajpur, District -
16Sarguja in Civil Suit No. 21-A/2008 are affirmed. No order as to costs.
28. A decree be drawn-up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge Deshmukh