Jharkhand High Court
Brajendra Nath Singh Munda vs Most Subhadra Devi on 2 March, 2015
Equivalent citations: AIR 2015 JHARKHAND 76
Author: D. N. Upadhyay
Bench: D. N. Upadhyay
1
APPEAL FROM APPELLATE DECREE No.79 of 1994(R)
[Appeal against the judgment and decree dated 17th
August, 1994 passed by Sri Bal Govind Prasad, 3rd
additional Judicial Commissioner, Ranchi in Title Appeal
No.33 of 1990]
1. Brajendra Nath Singh Munda.
2. Gokul Singh Munda
3. Aklu Singh Munda
4. Okil Singh Munda
5. Mostt. Fulmati
6. Paklu Singh Munda
7. Mostt. Lalu Devi
8. (a) Rajmani Devi
(b) Jainath Munda
(c) Saral Singh Munda
(d) Sudarsan Singh Munda
9. Radhacharan Singh Munda
10. Tahal Singh Munda
11. Kunwar Singh Munda
....... Appellants.
Versus
1. (i) Mostt. Subhadra Devi
(ii) Mihir Singh Munda
(iii) Deban Singh Munda
(iv) Bablu Singh Munda
2. (i) Tiloktama Devi
(ii) Diwakar Singh Munda
(iii) Man Mohan Singh Munda
(iv) Bhupendra Singh Munda (Minor)
(v) Birsa Munda (Minor)
(vi) Gandhe Kumari
(vii) Lila Rani
3. Gourang @ Pradhan Singh Munda
4. Mostt. Panchami Mundain
5. Lohar Singh Munda
6. Bindeshwari Mundain
7. Bhongo Singh Munda
8. Mostt. Mani Mundain
9. Samlal Singh Munda
10. Deputy Commissioner, Ranchi. .......Respondents.
CORAM : HON'BLE MR. JUSTICE D. N. UPADHYAY
For the Appellants : Mr. Lalit Kumar Lal, Advocate
For Respondents : Mr. A. K. Sahani, Advocate
th
CAV on 27 Nov., 2014
Pronounced on 2 nd March, 2015
D.N. UPADHYAY: This second appeal has been preferred by the
plaintiffs/appellants against the judgment dated 17th August,
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1994 and decree dated 25th August, 1994, passed and signed by
3rd Additional Judicial Commissioner, Ranchi in connection with
Title Appeal No.33 of 1990, whereby judgment and decree
passed by Sub JudgeI, Khunti in connection with Partition Suit
No.188 of 1985/63 of 1986/140 of 1987 has been set aside.
2. The Plaintiffs are appellants and defendants are
respondents in this second appeal.
3. The instant appeal was admitted on 5th April, 1995 to
decide the following substantial question of law:
"Whether the lower appellate court has erred in law in
holding that the family was governed by the rule of
primogeniture?"
4. A suit was filed for partition by the plaintiffs/appellants,
claiming 1/3rd share to Plaintiff No.1, 1/6th share to Plaintiff Nos.3
to 9 jointly, 1/6th share to Plaintiff Nos.10 to 12 jointly and 1/12 th
share to Plaintiff No.13 from the suit properties described in the
schedule given at the foot of the plaint by appointing a Pleader
Commissioner to carve out separate Takhtas and also cost of the
suit.
5. It is contended that plaintiffs and defendants are Mundari
Khuttkatidar of village Baridih, P.S. Bundu, District Ranchi and
they own and possess their ancestral Mundari Khuttkatti lands in
the village. Some of the lands are possessed by them jointly and
some separately. The parties are Mundas and are governed by
their own customary law in the matter of inheritance and
succession, according to which agnatic succession is the rule
and not the cognatic. Females and persons, claiming through
females, are excluded from inheritance. Widows are entitled to
maintenance out of the usufruct of their husbands' properties.
Similarly, unmarried daughters are also entitled to be maintained
out of the usufruct of the lands of their fathers. Married
daughters forfeite their rights in lands to their fathers. After the
death of sonless widow, her properties are inherited and
succeeded by the close agnates of her husband in equal share.
Illegitimates are entitled for maintenance from their respective
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fathers' properties.
6. Gokul Singh Munda was the common ancestor of plaintiffs
and defendants and the genealogy has been given in the
plaint. Gokul Singh Munda died before cadastral survey leaving
behind his four sons, namely, Ghasi Rai, Doman Singh, Lohar
Singh and Beni Rai. Defendant Nos.1, 2 and Plaintiff Nos.10 to 13
are the descendants of Ghasi Rai; Plaintiff Nos.1 & 2 and
Defendant Nos.9 & 10 are the descendants of Doman Singh;
Plaintiff Nos.3 to 9 and Defendant Nos.3 to 8 are the
descendants of Lohar Singh; and the fourth son Binrai died
leaving behind his widow Mostt. Ghasni, who also died issueless.
7. It is contended that Gokul Singh Munda was Mundari
Khuttkatidar of village Baridih and he was enjoying the
possession thereof. After his death, his four sons jointly inherited
and succeeded him in equal share and came in joint possession
over the properties left by their father. In due course, to avoid
frequent quarrels prevailing among the members of the family,
the four brothers separated in mess and residence and began to
cultivate their joint ancestral land separately for the sake of
convenience. No partition among them by metes and bounds
had taken place. It is further contended that the four brothers,
while living separately, reclaimed some Gairmazarua lands
separately according to their resources and the same have
been recorded separately in the Cadastral Survey Record of
Rights in various coordinate Khewats. The lands, which were in
possession of Ghasi Rai, have been recorded in C.S. Khewat No.6
in the names of his sons viz. Dhum, Karam, Hiralal, Manglu and
Bodh Singh (sons of Ghasi Rai died prior to cadastral survey).
Hiralal and Manglu died issueless. Thereafter, the said lands were
recorded in Revisional Survey Khewat No.5/1 in the names of
Raghu Nath and Udainath, both sons of Dhum Munda;
Revisional Survey Khewat No.5/2 in the names of Pitambar, son of
Karam Singh and others in the name of Bodh Singh, son of Ghasi
Rai. Those lands are now possessed by Defendant Nos.1 and 2
and Plaintiff Nos.10 to 13. The lands, which were in possession of
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Doman Singh, were recorded in the name of his sonDubraj Singh
in Cadastral Survey Khewat No.12. The name of Vishwanath
Singh was recorded in Revisional Survey Khewat No.9.
Gobardhan was the illegitimate son of Doman and, therefore, he
was and his descendantsDefendant Nos.9 and 10 and Plaintiff
No.2 are entitled to be maintained only. The lands, which were in
possession of Lohar Singh, were recorded in his name in
Cadastral Survey Khewat No.11. He died leaving behind his two
sons, namely, Kartik Singh and Gour Singh. Kartik died before
revisional survey. Hence the lands of Lohar Singh have been
recorded in Revisional Survey Khewat No.14/1 in the name of
Janak Singh and 14/2 in the name of Gour Singh. Revisional
Survey Khewat No.14/3 remained their joint Khewat.
8. At the time of filing of the suit, those lands were in
possession of Plaintiff Nos.3 to 9 and Defendant Nos.3 to 8. The
lands, which were in possession of Binrai, were recorded in his
name in Cadastral Khewat No.13. He died leaving behind his
widowMostt. Ghasni. She was in possession of those lands during
revisional survey and as such her name was recorded in
Revisional Survey Khewat No.15. During her lifetime, Vishnath
Singh, grand son of Doman Singh, was cultivating her land. She
died sometimes in the year 194041, but Vishnath Singh after her
death continued his exclusive possession over the suit land. The
Plaintiff Nos.1 and 2 after the death of their father have been
exclusively enjoying their possession over those lands, although
all the descendants of Ghasi Rai, Doman and Lohar are entitled
to get equal share therein. The Defendant Nos.1 and 6 had
falsely claimed to have resumed these lands after death of
Mostt. Ghasni, alleging themselves to be the landlords of the
village, but their contentions were held baseless and false in Title
Suit No.8 of 1974, which stood dismissed on 19th June, 1978 by the
order passed by S. B. Houra, Additional SubJudge, Ranchi.
9. Further case of the plaintiffs is that Ghasi Rai, being the
eldest among the brothers, was official Munda and was acting
as the head or Karta of the Mundari brotherhood. He used to
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pay rent to the superior landlord by collecting rent from raiyats
and his younger brother used to pay Chanda i.e. contributory
subscription to him and that arrangement is still prevalent among
their descendants, including the plaintiffs and the defendants.
Being the official head and Karta of the joint family, Ghasi Rai
had mortgaged portion of the ancestral land with Kundus of
village Bundu to meet the necessities prior to cadastral survey.
The names of mortgagees have been recorded in the Cadastral
Survey Khewat No.7, which corresponds to the lands of Revisional
Survey Khewat Nos.7/1 to 7/4. The mortgage was, however,
redeemed in the year 1945 with joint fund raised by giving joint
ancestral lands in Bhugatbandha mortgage to one Haridas
Manjhi. The Bhugat period expired and the parties to the suit
acquired their joint possession over the lands recorded in
Revisional Survey Khewat Nos.7/1 to 7/4. The plaintiffs and
Defendant No.5 have converted Gairmajarua lands of those
Khewats into Korkar according to their resources and they are in
possession over the same and some lands are still under the
process of conversion by them. Since frequent quarrel started
between the parties regarding cultivation and enjoyment of
aforesaid lands, described in the schedule of the plaint, the
plaintiffs have asked for partition of their ancestral lands, but no
heed was paid by the cosharers and hence necessity of filing
the suit arose.
10. Further case of the plaintiffs is that Bhongo Singh Munda
Defendant No.8 is a minor and is living in the care and
guardianship of his unmarried older sister Bindeshwari Mundain,
Defendant No.7, who has no interest adverse to that of the minor
and is a fit person to act as his nearest friend in the suit. The
descendants of Dubraj Singh and Janak Singh had previously
filed a partition suit in the court of the Special SubJudge,
Ranchi, being P.S. Case no.23 of 1971 against their other co
sharers in respect of the lands in suit including others and the
same was transferred to the Court of Sri S. B. Singh Houra,
Additional SubJudge, Ranchi for disposal but the same was
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found to be dismissed for default on 25.4.1977 when the plaintiffs
of the suit went to the court to file a partition for amendment of
the plaint of that suit. The Plaint Nos.10 to 13 reserve their right to
file separate suit for partition against the Defendant Nos.1 and 2
in respect of their joint lands recorded in Cadastral Khewat No.6,
corresponding to the lands in Khewat Nos.5/1 into 5/3 and 6.
11. The cause of action for suit arose on various dates when
the plaintiffs demanded for partition and the request made by
them was postponed on one plea or other and lastly on 14th
January, 1985 when the demand for partition was not complied
with in village Baredih, P.S. Bundu, District Ranchi within the
jurisdiction of this Court.
12. The original Defendant Nos.1 and 2 had filed their written
statement before the court below, stating therein that the suit is
not maintainable, barred by Law of Limitation, adverse
possession and complete ouster. The suit is also barred by
principle of waiver, estoppel and acquiescence. The suit is
collusive between the plaintiff and some of the defendants.
There is no unity of title and possession between the parties and
they are not the coowners of the properties for which partition
has been sought for. The suit is also barred by the provisions of
Order II Rule 2 C.P.C. and also by resjudicata. As a matter of
fact, the plaintiffs have not described that the plaintiffs and
other defendants are Babus and Defendant No.1 is Munda of
Mundari Khutkatti Tenancy Village. The Defendant No.1 is the
eldest member in the eldest male line and he is Munda of
Mundari Khutkatti Tenancy and, therefore, he is proprietor of the
same. It is incorrect to say that the parties owned and possessed
Mundari Khutkatti lands in the village some jointly and some
separately. The plaintiffs are only entitled to the lands inherited
by them, which are recorded in the names of their ancestors,
and have no concern with other properties. In Mundari Khutkatti
Tenancy of the village, the eldest male member in the eldest line
becomes the Munda Malik and proprietor of the village and the
tenancy vests on him and the junior male members were
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allowed to hold and possess certain specific lands when they
separate from the parent family for their maintenance and also
land reclaimed by them with the consent and permission of the
Munda. The contesting defendants have also made out a case
that genealogy given by the plaintiffs is not correct. Gokul Singh
Munda, who was Munda of the village, had only two sons,
namely, Ghasi Rai and Binrai, and he died long before cadastral
survey. It is incorrect to say that Doman Singh and Lohar Singh
were the sons of Gokul Singh Munda. Plaintiff Nos.10 to 12 are not
of legitimate branch and have no concern with the properties.
They have been allowed certain lands for their maintenance
and they are enjoying their possession over the same. They have
been set up by the plaintiffs collusively to lay a false claim over
the schedule properties. Since Doman Babu and Lohar Babu
were of different Khunt, they had no concern with Mundari
Khuntkatti Tenancy of the village. Gokul Singh Munda enjoyed
his right as Munda Malik till his death and after that his eldest
sonGhasi Rai became the Munda Malik of the village and after
his death, his eldest sonDhum Singh Munda became the Munda
of Mundari Khuntkatti Tenancy and he had exercised all his rights
till his death. On the death of Dhum Singh Munda, his eldest son
Raghunath Singh Munda became the Munda Malik of Mundari
Khuntkatti Tenancy. At the relevant point of time, Raghunath
Singh Munda and Uday Nath had not separated. Uday Nath
died issueless and his widowMost. Chutumani got herself
married with Ajamber Singh. Thereafter, on the death of
Raghunath, his eldest sonDurga Charan (Defendant No.1)
became the Munda Malik of the Mundari Khuntkatti Tenancy.
Defendant No.2, brother of Durga Charan, had been living with
the Defendant No.1 and no land has been allotted to him as per
the custom of the family and Mundari Khuntkatti Tenancy. The
contesting defendants have denied the fact that after death of
Gokul Singh Munda, his four sons jointly inherited and succeeded
him in equal share. Since it is contended that Doman and Lohar
were not the sons of Gokul Singh Munda, question of acquiring
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joint possession over the properties did not arise. It is contended
that Doman Babu and Lohar Babu had separate land and they
had no concern with the parent Mundari Khuntkatti Tenancy. On
their separate lands, their descendants had inherited the
properties and are enjoying the possession. The defendants have
also denied that due to dispute among female folk, the said four
brothers separated and cultivated land separately for their
convenience. It is also incorrect to say that the said four brothers
reclaimed Gairmazarua lands separately. Gairmazarua lands
belong to the Munda and reclamation could be done only on
the permission of the Munda of the village. The ancestors of the
plaintiffs have no coordinate interest in the Mundari Khuntkatti
Tenancy and they were Babus and they were in possession of
certain lands subordinate to the Munda and contrary record, if
any, is not admitted to be correct.
13. Further case of the defendants is that four sons of Ghasi
Rai and illegitimate sonBodh Singh had not separated during
cadastral survey and after cadastral survey Hira Lal and Manglu,
sons of Ghasi Rai died issueless. Karam Singh was given certain
lands for his maintenance. On his death, Pitamber cultivated
and enjoyed possession over the said land. Since Pitamber died
issueless, the then Munda MalikRaghunath Singh had resumed
and came in possession over the same. Bodh Singh Munda was
the illegitimate son of Ghasi Rai and he was given certain lands
for his maintenance, which was enjoying by his descendants
after his death and, therefore, Plaintiff Nos.10 to 12 have been
falsely impleaded in the suit. According to the plaintiff himself,
the illegitimate sons have no right in the property, but even they
have been made parties in the suit. Ghasi Rai as a Munda of
Mundari Khuntkatti Tenancy had mortgaged a portion of
Mundari Khuntkatti Tenancy to Narayan Kudu and others and,
thus, Kundus were in possession, as mortgagees, and in the
record of right names of Kundus were recorded under Ghasi Rai
Munda. Raghunath Singh Munda reclaimed the mortgage from
his own fund by making arrangement from his own properties
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and deposited the mortgage amount before the Munsif, Ranchi
in Misc. Case No.29 of 1945 and after redemption, Raghunath
Singh Munda came in possession exclusively and after his death,
his sonDurga Charan came in exclusive possession over the said
properties and that too to the knowledge of all concerned,
including the plaintiffs and other defendants without being
objected from any corner. Raghunath Singh on his own right
gave Bhugat for redemption of above mortgage and he came
in possession over all the properties recorded in Khewat Nos.7/1
to 7/4 and he was in exclusive possession over the said
properties. After his death, Defendant No.1 came in exclusive
possession. The plaintiffs or other defendants have no right over
the properties mortgaged.
14. The plaintiffs had filed Partition Suit no.23 of 1971 with false
allegation against the defendants and the same was dismissed
and, therefore, the plaintiffs are liable to be stopped from
reagitating the issue again. The suit filed by the plaintiffs was
decreed by the Trial Court in Partition Suit No.188 of 1985/63 of
1986. The defendants, thereafter, preferred an appeal against
the impugned judgment and decree passed by the Trial Court
vide Title Appeal No.33 of 1990 and the learned 3rd Additional
Judicial Commissioner, Ranchi allowed the appeal and set aside
the judgment and decree passed by the Trial Court and the suit
was directed to be dismissed. It was mainly held by the Lower
Appellate Court that as per customary law, eldest son in the
eldest male line shall become the Munda of Mundari Khuntkatti
Tenancy and the property shall vest on him. Learned Lower
Appellate Court has discarded the findings of the Trial Court on
the ground that rule of primogeniture was the custom and,
therefore, Defendant no.1 shall be the proprietor of Mundari
Khuntkatti Tenancy because he was Munda Malik of the village.
Learned Lower Appellate Court has gone to the extent of saying
that the Trial Court under misconception of customary law has
misinterpreted the authority cited in this concern and allowed
the suit by granting relief to the extent of partition sought for in
10
the plaint.
15. The instant second appeal, therefore, has been admitted
only to decide the substantial question of law "Whether Lower
Appellate Court has erred in law in holding that the family was
governed by the rule of primogeniture?"
16. To answer the said question, I have gone through the
judgments passed by the Trial Court as well as Lower Appellate
Court and the case record. I have also perused the pleadings of
the parties. From perusal of the materials available on record, I
find that Lower Appellate court has held that the Trial Court has
not properly considered the rule of primogeniture prevailing
between the family and irrelevant paragraphs of book of S.C.
Roy (The Mundas and their Country) have been quoted for
coming to the conclusion. Learned Lower Appellate Court in its
judgment has discussed about broken Mundai Khuntkatti Village
and also discussed about alien who acquired land in the village
and became landlord.
17. Since the instant second appeal has been admitted for
answering limited question "whether rule of primogeniture is lex
loci for Mundari Khuntkatti Tenancy or it is a specific custom
prevailing in a particular village or in a particular family"? To
answer this question, reference to a book of S. C. Roy, namely,
"The Munda and Their Country", appears essential. Pages 60, 61
and 62 of the said book under ChapterThe Early History of the
Munda are relevant, which are quoted herein under:
"The idea of private property, as we have seen in the last
chapter, had already been developed amongst the
Munda. Their cherished idea of ownership of land,
however, was the archaic one of the joint ownership by
the family or by a group agnatic families. The country
they now entered was practically res nullius and the
Mundas occupied it and meant to keep it always for
themselves. Each family made in the virgin forests its own
clearances which came to be called the Hatu, later on
known as the khuntkattihatu, or the village of the family
of the original settlers. The boundaries of the village were
laid down by the pater families. And even to this day, the
Mundas regard as sacred and inviolable these boundary
lines over which the boundarygods (Sumanbongako)
keep a vigilant watch. The method by which these
boundaries were laid down by the old Munda patriarchs
was very simple one. Huge bonfires were lit up at four
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corners of a selected tract and straight lines drawn across
the tract from one point to the next, connecting the four
bonfires. These lines formed the boundarylines of the
new village. And within the limits of the villge thus
demarcated, all the land, cultivable as well as waste, all
the hills, jungles and streams, every thing above ground
and underground became the common property of the
villagefamily. One or more bits of jungles were
specifically reserved for the villagegods (hatu bongako)
and called the Sarnas. When the sons of the pate families
came of age, they married girls of other villages; and on
the father's death, the married sons often separated from
one another and built separate houses for themselves in
the same Hatu. And in this way, the original villagefamily
would branch off into a member of separate families
belonging to the same Kili or sept. On the death of the
founder of the village, his eldest son would come to be
the patriarchal head of the different branches of the
family. The whole village acknowledged his chief ship in
matters temporal as well as spiritual, for in those early
days the functions of the Munda or secular head of the
village and of the Pahan or the ecclesiastical head do
not appear to have been separated.
xxxxx xxxxx xxxxx xxxxx
We should be greatly mistaken, however, if we
suppose that any superior rights of property were
attached to the office of a Munda. His position has been
aptly described as that of a Primus inter pares a chief
among equals. He had his share of the village lands just
as the other members of the Khuntkatti group had.
Occasionally perhaps the pater families sought and
obtained the assistance of the brotherhood in the
cultivation of his fields. But such assistance, when
rendered, must have been reciprocated as much as was
possible consistently with the dignity of a Munda."
18. In view of the above reference, it is clear that the eldest
son in the male line shall become the official head and he shall
be called Munda or Headman of the village. So far the land
pertaining to Mundari Khuntkati Tenancy, it is not indicated in the
book that Munda shall be the sole proprietor of Mundari
Khuntkatti Tenancy of the village. Being head, record of right
may be prepared in his name, but, so far the right of other
members are concerned, principle of inheritance and partition is
required to be followed. Under the heading 'Partition' and
'Inheritance' under ChapterThe Ethnography of the Mundas,
custom prevailing has been indicated, which is quoted herein
below:
"(i) Partition As we have said, the members of an
undivided Munda family share all they have, in common,
till the death of the father, But, the father may, during his
lifetime, expel a disobedient son from his house even
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without giving him any moveable property or a share of
the lands. It is optional with the father, however, to
separate a son with such share of the family property as
the father thinks proper. The father is nowadays
regarded as having almost absolute control over the
family property during his lifetime, although any
disposition of family property in contravention of the
customary rules of inheritance will not be binding on his
heirs. The sons cannot, as of right, demand a partition
during the lifetime of their father. But the father may, and
sometimes does, make a partition of family property
amongst his sons. This is almost always the case when the
mother of the sons being dead, the father has married a
second wife. At partition, the eldest son generally gets a
slightly larger share than the other sons, the excess being
ordinarily one kat (sala) of land, and, in welltodo
families, a yoke of plough cattle or only one bullock or
one goat, and sometimes also one 'mora' or bundle of
paddy measuring from ten to sixteen maunds. With this
difference, the sons all get equal shares of moveable
and immoveable property, and a similar share of both
real and personal property is taken by the father. An
unmarried son, however, will get, in addition to his proper
share, some cash or cattle or both by way of provision for
his marriage. The cattle, &c., which a married son
received at his marriage will be given to him at partition.
Females amongst the Mundas are not entitled to inherit,
but the father may in his lifetime make presents of cash
or moveables to a daughter, but not of lands. When,
however, the father effects a partition during his lifetime,
an unmarried daughter usually gets some land to be held
by way of maintenance till her marriage, and also a few
kat of paddy for her consumption till the following
harvest. Almost invariably, an unmarried daughter, after
such partition, lives either under the protection of her
father or of one of her brothers; and the land allotted to
her by way of maintenance till her marriage, remains till
then in the possession of her chosen guardian who
supports her. The brideprice received at her marriage
too will go to that guardian if he defrays the expenses of
her marriage. This khorposh land of the sister, however, will
be repartitioned amongst the brothers, after the sister's
marriage. When a Munda father, after marrying a
second wife, makes a division of the family property with
his sons by his first wife, there cannot be a redistribution of
the lands on the birth of other sons to him by the second
wife. Till the father's death, such subsequentlyborn
children will be maintained out of the share of their
father.
(ii) Inheritance We now come to the customary law
regarding inheritance amongst the Mundas. After the
death of the father, if the sons do not agree to live
together, a Panchayat is convened, and the property
divided according to Mundari rules of inheritance. When
the deceased has left behind him a widow and grown
up sons and daughters, the Panch will first set apart some
land, generally equal to a younger son's share, for the
maintenance of the widow; and, if any cash has been
left by the deceased, a small sum (generally not more
than twenty rupees) is paid to the widow for her
subsistence till the following harvest. In the land thus
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allotted to her, she can only have a lifeinterest. If, for the
rest of her days, she lives separate from her sons and
independently of any pecuniary assistance from any of
them in particular, her maintenanceland will, on her
death, be equally divided amongst the sons. But, in most
cases, the widow prefers to live with one or other of the
sons. In such a case, her maintenanceland is cultivated
and practically enjoyed by that son, and if he meets all
her funeral expenses, he becomes entitled to those
lands."
19. Thus, it is clear that rule of primogeniture is lex loci and,
therefore, this rule is to be proved by adducing evidence if it is
prevalent either in the village or in the family. The duties of
Munda also find mentioned in the official report on the Survey
and Settlement Operation in the district of Ranchi done between
19021910 by J. Reid, ICS, Settlement Officer, Chhotanagpur, at
Page307, Paragraph 188 of the said report reads as under:
"188. Mundari Khuntkatti tenancies The ancient system
of land tenure still survives in scattered blocks in the
Munda country. The Munda system of land tenure has
been fully described in a valuable note by Father
Hoffman, S.J. And Mr. Lister, C.S., which will be found in
Appendix I to my edition of the Choa Nagpur Tenancy
Act. Father Hoffman is a missionary, who has spent 10 to
12 years in the Munda country and has made a special
study of the Mundari language and Mundari social
customs and land tenure. Mr. Lister was the Settlement
Officer, who initiated the settlement operations in the
district, and devoted four years of assiduous and untiring
labour to the study of the agrarian question, especially in
the Munda tract. For a full and complete description of
the Munda land tenures, reference must be made to the
note. It will be sufficient to give here a brief description of
a purely Mundari Khuntkatti village. The khuntkattidars
are the descendants in the male line of the original
founders of the village, and a group of these
Khuntkattidars are the owners of ail the land included
within its boundaries. The annual rent payable was
originally made up of the subscriptions (Chandas) of the
Khuntkattidars; but the subscriptions of may of them have
been reduced, and the deficits have been made good
from the rents paid by the raiyats, who hold raiyati
tenancies under the joint brotherhood. There is a
headman in each village called the Munda, who
collects the Chandas and pays the rent to the superior
landlord, the Manki or his successor in interest. ....."
20. The above contentions also make it clear that the eldest
son in the male line shall be elected as Munda i.e. head of the
village and his duty is to collect subscription from Khuntkattidar
of the village. The Khuntkattidars are descendants in the male
14
line of the original founders of the village and a group of these
Khuntkattidars are the owners of the land executed within its
boundaries. This also makes it clear that rule of primogeniture in
Mundari Khuntkatti Tenancy is not considered as rule of lex loci
21. I did not find that the defendants have succeeded to
prove this fact that rule of primogeniture was prevailing in the
family or in the village. No documentary evidence to prove
existence of prevalence of rule of primogeniture has been
brought on record. Selection of Munda as official head is quite
different and distinguishable from the fact that elected Munda
shall be sole proprietor of the entire property of Mundari
Khuntkatti Tenancy.
22. In the instant case, the respondents/defendants have tried
to bring on record that Gokul Singh Munda, the common
ancestor, was having only two sons, namely, Ghasi Rai and Binrai
Babu, but this fact stood unproved by earlier litigation and also
from the pleadings and evidences of the parties. The defendants
have tried to bring on record that the property, which was
recorded in the name of Most. Ghasni, wife of Binrai Babu, was
also acquired by Ghasi Rai after the death of Ghasni, but the
litigation prevailed between the parties for said land had come
to an end with the judgment, marked as Ext.14/A in which it was
held that Binrai died issueless and the property was recorded in
the name of his wifeMostt. Ghasni. When litigation arose, it was
held that after death of Ghasni the property shall equally
devolve upon Ghasi Rai Munda, Doman Babu and Lohar Babu.
That is also a proof which is against the pleadings of the
defendants. Had there been rule of primogeniture prevailing, the
property which was recorded in the name of Ghasni should
have been devolved upon by Ghasi Rai Munda, but the legal
pronouncement is not in favour of the defendants.
Exts. 14 and 14/A are the judgment passed in the second
appeal, which also makes it clear that if parties to the suit
intends to rely on principle of rule of primogeniture, they will have
to prove it by adducing evidence.
15
23. Learned Lower Appellate Court has considered the oral
evidence adduced by contesting Defendant No.1, but forgotten
to consider, besides oral evidence no cogent or documentary
evidence has been brought on record that family was governed
by rule of primogeniture or such special rule was prevalent in the
village Baredih. Documents relating to earlier litigation have
been brought on record and marked as exhibits, but that too do
not disclose that family was governed by rule of primogeniture
and the eldest male member in the male line shall be the
exclusive proprietor of Mundari Khuntkattidar Tenancy Village.
Ext.12 is the judgment passed in Title Suit no.8 of 1974. The suit was
brought by the ancestor of contesting defendants for declaring
their right and title over the property, which was recorded in the
name of Mostt. Ghasni, widow of Late Binrai Babu. Recovery of
possession was also sought for. The evidence on record further
indicates that the defendants had not given correct genealogy
in the earlier litigation, but after considering the documents on
record, learned Trial Court has held that founder of the village
Gokul Singh Munda was having four sons and names of those
sons are Ghasi Rai Munda, Doman Babu, Lohar Babu and Binrai
Babu. In that very suit, the defendants had tried to bring on
record that Gokul Singh Munda was having two sons, namely,
Ghasi Rai Munda and Binrai Babu and after death of Binrai Babu,
the land recorded in his name was later recorded in the name of
his widowMostt. Ghasni. Mostt. Ghasni enjoyed the property for
her maintenance during her lifetime. After her death, aforesaid
Title Suit no.8 of 1974 was brought by the contesting defendants.
The suit was contested by Doman Babu and Lohar Babu
and lastly it was decided that the properties left by Mostt.
Ghasni shall equally be devolved between remaining three
brothers, namely, Ghasi Rai Munda, Doman Babu and Lohar
Babu.
24. Two things are important to be mentioned herein. The
property recorded in the name of Mostt. Ghasni was not allotted
to her husband for Khorpos and no such evidence was brought
16
on record. Since the said suit was decided in terms that all the
three surviving sons of Gokul Singh Munda shall acquire 1/3rd
share in the property left by Mostt. Ghasni is sufficient proof that
rule of primogeniture was not prevalent in the family. Had it been
so the property recorded in the name of Mostt. Ghasni should
have been declared to be acquired by Ghasi Rai Munda, who
was the eldest son of Gokul Singh Munda.
The contesting defendants have further failed to bring on
record as to when and under what circumstance other
properties recorded in the name of plaintiffs and other
defendants were given to them for their maintenance and
Khorpos. The Trial Court in its judgment in Paragraphs 46 to 51
and 54 has elaborately discussed the documents and evidences
relied upon by the plaintiffs and contesting defendants.
It is settled principle of law that a custom to have the force
of law must be ancient, continuous, uniform, reasonable and
survey and that should not be contrary to equality and good
conscience.
25. By referring the report submitted by the then Settlement
Officer and the portion relevant to the issue involved referred to
above from the authentic book of S.C. Roy clearly suggest that
rule of primogeniture for Mundari Khuntkatti village was not a
custom lex loci and, therefore, if any family or in any village if
such rule was prevalent they will have to come up with positive
evidence and conclusive documents in that regard. The
discussion made by the Trial Court is sufficient to reach to a
finding that the defendants have failed to prove that rule of
primogeniture was either prevalent in the family or in the village
Baredih.
26. In the result, answer to the substantial question framed for
decision of this second appeal is in affirmative that the Lower
Appellate Court has erred in law in holding that the family shall
be governed by rule of primogeniture. The judgment and
decree passed by the learned Lower Appellate Court stands set
aside and the judgment and decree passed by the Trial Court in
17
Partition Suit No. 188 of 1985/63 of 1986/140 of 1987 stand
affirmed.
27. Accordingly, this second appeal is allowed.
28. No order as to costs
(D. N. Upadhyay, J.)
Jharkhand High Court
Ranchi
Dated: 2nd March, 2015
Sanjay/AFR