Chattisgarh High Court
Surjotin And Ors vs Chamrin Bai And Ors. 6 Sa/417/2008 ... on 28 January, 2020
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Second Appeal No. 162 of 2008
1. Surjotin Wd/o Late Atmaram, Aged about 46 years,
R/o Village Bardevri (Bazarpara), Tahsil and Distt.
Kanker, Chhattisgarh.
2. Jait Kumar Halba, Aged about 35 years, R/o Village
Chamel, Tahsil Bhanupratappur, Distt. Kanker,
Chhattisgarh.
3. Durga D/o Atmaram, W/o Harish Kumar, Aged about 25
years, R/o Village Bansala, Tahsil Bhanupratappur,
Distt. Kanker, Chhattisgarh.
4. Maneshwari, D/o Atmaram, Aged about 17 years, R/o
Village Bardevri, Bazarpara, Tahsil and Distt.
Kanker, Chhattisgarh.
5. Minor Rameshwari D/o Atmaram, Aged about 16 years.
6. Minor Gayatri D/o Atmaram, Aged about 13 years.
7. Minor Rameshwar Singh S/o Atmaram, Aged about 12
years.
No. 4 to 7 are minors and through their natural
guardian Surjotin Bai Wd/o Late Atmaram R/o Village
Bardevri, Banzarpara, Tahsil and Distt. Kanker,
Chhattisgarh.
Appellants/Plaintiffs
Versus
1. Chamrin Bai W/o Sunaram, Aged about 64 years,
R/o Village Bardevri, Bazarpara, Tahsil and
Distt. Kanker, Chhattisgarh.
2. Mathurabai W/o Ram Prasad, Caste Halba, Aged
about 32 years, R/o Village Bardebhata, Tahsil
and Distt. Kanker, chhattisgarh.
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3. Rambha Bai W/o Mukund, Caste Halba, Aged about
28 years, R/o Village Kodabhata, Tahsil and
Distt. Kanker, Chhattisgarh.
4. Ramila W/o Rangilal, Aged about 45 years, R/o
Village Kunwapani, Tahsil Bhanupratappur, Distt.
Kanker, Chhattisgarh.
5. Amila Bai W/o Shyamlal, Caste Halba, Aged about
40 years, R/o Bardevri, Tahsil and Distt.
Kanker, Chhattisgarh.
6. State of Chhattisgarh, Through Collector, Distt.
Kanker, Chhattisgarh.
Respondents
For Appellant : Mr. D.N. Prajapati, Advocate
For Respondents : Mr. Shalvik Tiwari, Advocate
For State : Mr. Anshuman Rabra, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Order on Board
28/01/2020
1. Heard on admission and formulation of substantial
question of law in this second appeal preferred by
the appellants/plaintiffs under Section 100 of the
CPC questioning the impugned judgment and decree
passed by the first appellate Court affirming the
judgment and decree of the trial Court by which
plaintiffs' suit for declaration of title and
possession has been dismissed finding no merit.
2. Mr. D.N. Prajapati, learned counsel for the
appellants/plaintiffs would submit that both the
Courts below have concurrently erred in not holding
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that in 'Halba' community (Scheduled Tribe),
daughters do not get any share in the property of
their father as the provisions of Hindu Succession
Act, 1956 are not applicable to them by virtue of
Section 2(2) of the Act of 1956 by recording a
finding which is perverse and contrary to record,
as such, the second appeal deserves to be admitted
for hearing by formulating substantial question of
law in this regard.
3. The suit property was originally by Kulanjan who
had only one son namely Atmaran and five daughters.
Plaintiffs are the widow and children of Late
Atmaram and defendants are the daughters of Late
Kulanjan.
4. It is the case of the plaintiffs that they belong
to 'Halba' community (Scheduled Tribe) and the
provisions of Hindu Succession Act, 1956 are not
applicable to them by virtue of Section 2(2) of the
Act of 1956 and as per their custom, daughters do
not inherit the property of their father. Only the
son succeeds to his father's property and daughter
would inherit the property only if there is no son.
They further pleaded that Kulanjan got the suit
property from his inlaws' family as he was kept as
lumsena by his fatherinlaw and therefore, sought
declaration stating that they are the exclusive
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titleholders of the suit property as the
defendants, being the daughters of Kulanjan, would
not succeed the suit property to which all the
defendants except defendant No. 4 opposed and
claimed equal share in the suit property.
5. Learned trial Court, upon appreciation of oral and
documentary evidence on record, dismissed the suit
finding no merit which the first appellate Court
also affirmed in the appeal preferred by the
plaintiffs holding that plaintiffs have miserably
failed to prove and establish the custom that in
'Halba' community (Scheduled Tribe), daughters do
not succeed the property of their father and only
the son succeeds the property of his father as the
provisions of Hindu Succession Act are not
applicable to them by virtue of Section 2(2) of the
Act of 1956.
6. Plaintiffs have pleaded that in their 'Halba'
community (Scheduled Tribe) daughters are not
entitled to get any share in the property of their
father as the provisions of Hindu Succession Act
are not applicable to them by virtue of Section
2(2) of the Act of 1956. The question for
consideration would be whether the plaintiffs have
been able to plead and establish the valid custom
that prevails in their tribe i.e. 'Halba' community
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in which daughters do not inherit any share in the
property of their father ?
7. In this regard, decision of the Supreme Court in
the matter of Saraswathi Ammal v. Jagadambal and
Another1 may be noticed herein profitably in which
Their Lordships have clearly held that it is
incumbent on a party setting up a custom to allege
and prove the custom on which he relies and custom
cannot be extended by analogy and it must be
established inductively, not deductively. It was
observed as under:
"11. The correct approach to a case where a
party seeks to prove a custom is the one
pointed out by their Lordships of the Privy
Council in Abdul Hussein Khan v. Soma Dero,
(I.L.R. 45 Cal. 450: PC). It was there said
that it is incumbent on a party setting up
a custom to allege and prove the custom on
which he relies and it is not any theory of
custom or deductions from other customs
which can be made a rule of decision but
only any custom applicable to the parties
concerned that can be the rule of decision
in a particular case. It is well settled
that custom cannot be extended by analogy.
It must be established inductively, not
deductively and it cannot be established by
a priori methods. Theory and custom are
antitheses, custom cannot be a matter of
mere theory but must always be a matter of
fact and one custom cannot be deduced from
another. A community living in one
particular district may have evolved a
particular custom but from that it does not
follow that the community living in another
district is necessarily following the same
custom."
1AIR 1953 SC 201
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8. Again, in the matter of Salekh Chand (Dead) by LRs.
v. Satya Gupta and Ors.2, it was held by Their
Lordships of the Supreme Court 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 was observed 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.
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 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."
9. The Supreme Court in the matter of Bhimashya and
Ors. v. Smt.Janabi @ Janawwa3 has held as under:
"12. "Custom defined : Custom is an
established practice at variance with the
general law.
2(2008) 13 SCC 119
3(2006) 13 SCC 627
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Nature of custom A custom varying the
general law may be a general, local, tribal
or family custom.
Explanation 1. A general custom includes a
custom common to any considerable class of
persons.
Explanation 2. A custom which is
applicable to a locality, tribe, sect or a
family called a special custom.
Custom cannot override express law. (1)
Custom has the effect of modifying the
general personal law, but it does not
override the statute law, unless it is
expressly saved by it.
(2) Such custom must be ancient, uniform,
certain, peaceable, continuous and
compulsory.
Invalid custom No custom is valid if it is
illegal, immoral, unreasonable or opposed to
public policy.
Pleading and proof of custom (1) He who
relies upon custom varying the general law
must plead and prove it.
(2) Custom must be established by clear and
unambiguous evidence."
(See Sir HS. Gour's Hindu Code, Volume
I.Fifth Edition.)
13. Custom must be ancient, certain and
reasonable as is generally said. It will be
noticed that in the definition in Cl. (a) of
Section 3 of the Act, the expression
'ancient' is not used, but what is intended
is observance of custom or usage for a long
time. 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' has not
been strictly applied to Indian conditions.
All that is necessary to prove is that the
custom or usage has been acted upon in
practice for such a long period and with
such invariability and continuity as to show
that it has by common consent been submitted
to as the established governing rule in any
local area, tribe, community, group of
family. Certainty and reasonableness are
indispensable elements of the rule. For
determination of the question whether there
is a valid custom or not, it has been
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emphasized that it must not be opposed to
public policy."
10. In the matter of Ratanlal @ Babulal Chunilal
Samuska v. Sunderabai Govardhandas Samsuka4 Their
Lordships of the Supreme Court have explained the
ingredients for establishing a valid custom and held
as under:
"13. 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 fewgeneral
customs, local customs and tribal customs
etc. and the burden of proof for
establishing a type of custom depend 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.
14. 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
4AIR 2017 SC 5797
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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 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."
11. In the matter of Madhu Kishwar and others v. State
of Bihar and others5 Their Lordships of the Supreme
Court have considered the constitutional validity
of sections 7, 8 and 76 of the Chhota Nagpur
Tenancy Act. The contention was that the customary
law excluding tribal women from inheritance of land
or property is discriminatory and ultravires
Articles 14, 15 and 21 of the Constitution of
India. The Hon'ble Supreme Court, by a majority
judgment, refrained from striking down the
provisions of the said Enactment on the touchstone
of Article 14 of the Constitution of India although
the exclusive right of male succession conceived of
in sections 7 and 8 was directed to remain in
suspended animation so long as the right of
livelihood of the female descendant of the last
male holder remains valid and in vogue. The
5AIR 1996 SC 1864
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majority judgment in Madhu Kishwar (supra)
articulates the reason for refraining from
judicially intervening thus:
"48. In face of these divisions and visible
barricades put up by the sensitive tribal
people valuing their own customs,
traditions and usages, judicially enforcing
on them the principles of personal laws
applicable to others, on an elitist
approach or on equality principle, by
judicial activism, is a difficult and mind
boggling effort. Brother K. Ramaswamy, J.
seems to have taken the view that Indian legislatures (and governments too) would not prompt themselves to activate in this direction because of political reasons and in this situation, an activist Court, apolitical as it avowedly is, could get into action and legislate broadly on the lines as suggested by the petitioners in their written submissions. However, laudable, desirable and attractive the result may seem, it has happily been viewed by our learned brother that an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. for in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, brakes to its selfmotion, described in judicial parlance as self restraint. We agree therefore with brother K. Ramaswamy, J., as summed up by him in the paragraph ending on page 36 of his judgment that under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the Court."
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12. The Supreme court in the matter of Indian Young Lawyers Association & Ors. v. The state of Kerala & Ors.6 (Sabarimala Temple Case) has held as under: "276(99). Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.
Our Constitution marks a vision of social transformation. It marks a break from the past - one characterized by a deeply divided society resting on social prejudices, stereotypes, subordination and discrimination destructive of the dignity of the individual. It speaks to the future of a vision which is truly emancipatory in nature. In the context of the transformative vision of the South African Constitution, it has been observed that such a vision would:
"require a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships."
13. Recently, the Bombay High Court in the matter of Babulal Bapurao Kodape and another v. Sau. Resmabai Narayanrao Kaurati and another7 has held that if a 6AIR 2018 SC (Supp) 1650 7AIR 2019 Bombay 94 12 female tribal who is a natural legal heir seeks equal share in the property of her father or mother, it would be impermissible for the Court to start with the assumption that the customary law governing the tribe excludes the females from inheritance and to then insist that the female tribal must plead and prove a custom that she is not so excluded. It would be burden of the person who asserts such exclusion from inheritance under the customary law to so plead and prove. Such view would further be in consonance with the principles of justice, equity and good conscience.
14. The Supreme Court in the matter of Mohammad Baqar and Ors. v. Naimun Nisha Bibi & Ors.8 has held that the burden of proving a custom in derogation of the general law being heavily on the party who sets it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them.
15.Reverting to the facts of the present case in light of the principles of law laid down by the Supreme Court in the aforesaid decisions, it is quite vivid that both the Courts have concurrently held that though the parties belong to 'Halba' community (Scheduled Tribe), but the plaintiffs have failed 8AIR 1956 SC 548 13 to prove and establish that as per their custom, in 'Halba' community, daughters are excluded from inheriting the property of their father, and also for the reason that there cannot be any presumption that the customary law governing their tribe excludes daughters from inheriting the property of their father. Plaintiffs have failed to discharge their burden placed upon them to prove that daughters do not inherit the property of their father in 'Halba' community, as such, the concurrent finding recorded by both the Courts below holding that plaintiffs have failed to establish the valid custom excluding daughters from inheriting their father's property and therefore, they are not entitled for decree for declaration of title and posession is a finding of fact based on evidence available on record which is neither perverse nor contrary to record and does not give rise to any substantial question of law for determination.
16.The second appeal deserves to be and is accordingly dismissed in limine without notice to the other side. No cost(s).
Sd/ (Sanjay K. Agrawal) Judge Harneet