Chattisgarh High Court
Laldhar vs Smt. Somari (Deleted) on 12 September, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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2025:CGHC:46808
NAFR
Reserved on 25.06.2025
Delivered on 12.09.2025
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 40 of 2014
1 - Laldhar S/o Late Ganpat Aged About 50 Years Caste - Gond, R/o
Jhargaon, Tah. And P.S. Kunkuri, Distt. Jashpur C.G.
... Appellant(s)
versus
1 - Smt. Somari (Deleted) As Per Hon'ble Court Order Dated 01-05-2025
2 - Bhukhli W/o Late Ganpat Aged About 60 Years Caste - Gond, R/o
Jhargaon, Tah. And P.S. Kunkuri, Distt. Jashpur C.G.
3 - Sulochani D/o Ganpat Aged About 23 Years Caste - Gond, R/o
Jhargaon, Tah. And P.S. Kunkuri, Distt. Jashpur C.G.
4 - State Of Chhattisgarh Thru- The Collector, Jashpur C.G.
---- Respondents
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For Appellant : Mr. J.K. Saxena, Advocate For State : Mr. Aman Tamboli, Panel Lawyer
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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. Heard on admission.
2. This is plaintiff's Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 19.12.2013 passed 2 by the learned Additional District Judge, Kunkuri District - Jashpur in Civil Appeal No. 2/2009, by which learned Additional District Judge has dismissed the appeal and affirmed the judgment and decree dated 20.02.2009 passed by the Civil Judge Class -2, Kunkuri, District - Jashpur in Civil Suit No. 9-A/2008.
3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 9-A/2008 before the trial Court.
4. The plaint averments, in brief, are that plaintiff filed a civil suit before the Civil Judge, Class II, Kunkuri on 27.08.2004 for declaration of title and confirmation of possession over the land bearing Khasra No. 18 Area 8738 Ha situated at P.H. No. 19, Village - Jhargaon, Tahsil - Kunkuri, District - Jashpur (hereinafter referred to as 'the suit property') mainly contending that :-
A. The plaintiff and the defendants are permanent residents of the village Jhargaon and by caste they are Gond which comes under the Scheduled Tribe category. They are governed by their local customs and traditions. It has been further contended that the suit property detailed in the Schedule "A" of the Suit was owned by Late Ganpat. Late Ganpat had three wives namely Sukri Bai, defendant No. 1 Somari and Defendant No. 2 Bhukli. He is son of Sukri Bai and defendant No. 3 is the daughter of defendant No. 2.
B. It has been further contended that as per the custom in their society which is prevalent since ancient times second and third wives of the deceased have no right or authority of any kind on the property of the deceased. Similarly, if there is a son, then the 3 daughters have no right or authority of any kind over the property of the deceased. However, defendants No. 1 to 3 after death of Ganpat in 1986, fraudulently without intimation to the plaintiff, got their names mutated in the revenue record, whereas the suit property is still in possession of the plaintiff.
C. It has been further contended that the defendants No. 1 to 3 moved an application on 09.1.2004 before the Naib Tehsildar for partition. On receiving notice from the Tahsildar, the plaintiff came to know that the defendants in connivance with the revenue officers mutated their names in the revenue record. The plaintiff submitted his objection before the Tehsildar wherein the Tahsildar directed the plaintiff and defendants to file civil suit for declaration of title and deferred the case for three months. However, civil suit could not be filed within three months. The plaintiff preferred civil suit for declaration of title and decree of possession and also moved application under section 151 of the CPC along with an affidavit before Naib Tehsildar to keep the matter on hold till the pendency of the civil suit. It has also been contended that plaintiff is in continuous possession of the suit property and as per their custom, the defendants No. 1 to 3 have no right over the suit property, therefore, the suit may be decreed in his favour.
D. Defendants No. 1 to 3 filed written statement and counter claim denying the allegation levelled in the plaint and contended that they have adopted Hindu Rituals, therefore, they are governed by the Hindu Succession Act, 1956. It has been further contended that the plaintiff is not the son of late Ganpat but he was servant of Late Ganpat and they are the legal heirs of Late Ganpat, 4 therefore, they are the title holder of the suit land and prayed for dismissal of the suit.
E. The plaintiff filed reply to the counter claim contending that his mother performed second marriage with Pano Gond, at that time he was 6-7 years old but he lived with Late Ganpat. It has been further contended that defendant No. 1 Sumari Bai married to Narayan Manjhi and defendant No. 2 was married to Sukhsai, but they developed illicit relationship with Late Ganpat, therefore, they have no right over the suit property.
5. On the pleadings of the parties, learned trial Court has framed as many as 9 issues.
6. The plaintiff to substantiate his case examined himself as PW/1, Jairam Manjhi as PW/2, Manijar as PW/3 and exhibited documents namely map as Ex.P/1, Kishtabandi Khataunis Ex.P/2, order sheets dated 09.01.2004 to 14.05.2004 as Ex.P/3, and copy of application for partition as Ex.P/4. The Defendants examined defendant No.1 as DW/1, Shyamnath as DW/2 and Devkaran as DW/3 and did not exhibit any document.
7. Learned trial court considering the evidence, material on record has dismissed the suit filed by the plaintiff but partly allowed the counter claim filed by the defendants and held that the plaintiff and defendants No. 1 to 3 are title holders of the suit property described in Schedule A of the plaint. Learned trial Court while partly allowing the counter claim filed by the defendants recorded its finding that though the plaintiff is in possession of the suit property but he is unable to prove that the defendants No. 1 to 3 have no right over the suit property, as custom has not been 5 proved in accordance with law, accordingly, it has dismissed the suit. 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 plaintiff has proved his case whereas no evidence was adduced by the defendants to rebut the evidence of the plaintiff. Even the defendants have not rebutted the pleadings still the learned trial Court has committed illegality in dismissing the suit. Learned first appellate court after re-appreciating the evidence and materials on record, recorded its finding that the defendants have failed to prove that plaintiff is not the son of Late Ganpat but it is not in dispute that Somari and Bhukhali were wives and defendant No. 3 Sulochni was daughter of Late Ganpat, therefore, it held that the plaintiff as well as the defendants No. 1 to 3 have equal rights over the suit property and dismissed the appeal. Being aggrieved with this judgment and decree the plaintiff has preferred second appeal before this Court.
8. Learned counsel for the appellant would submit that both the courts below have committed error in recording concurrent findings regarding entitlement of second wife, third wife and daughter from third wife. He would further submit that since they are tribals, therefore, they are governed by the custom prevailing in the Gond community, as such, as per the provisions of Section 2(2) of the Hindu Succession Act, 1956 the Act is not applicable to them and the daughter is not entitled to inherit the property and would submit that substantial question of law exists therefore, he would pray for admission of the appeal.
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9. On the other hand, learned counsel for the State would submit that the learned trial Court has passed very reasoned order which has been affirmed by the learned first appellate Court, as such there is no illegality or perversity which warrants interference by this Court.
10. I have heard learned counsel for the parties, perused the documents with utmost satisfaction.
11. From the evidence and material on record, it is quite vivid that the plaintiff is unable to prove the custom that second and third wife as well as daughter are not entitled to get share in the property left by his father. It is quite vivid that the plaintiff has not examined any person who is well aware of the customs prevailing in the tribals, at least the plaintiff should have examined an old person in the community to narrate the custom with regard to grant of share to second and third wives as well as the daughter, which he miserably failed to examine.
12. The law has been well settled that how custom 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 {(2008) 13 SCC 119} 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 7 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 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 8 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 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."
13. Hon'ble Supreme Court in case of Ratanlal vs Sundarabai Govardhandas Samsuka (dead) Through Lrs and Others {(2018) 11 SCC 119} has laid down the legal sanctity of the custom as well as proving of the custom in detail 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 9 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 "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- 10 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 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."
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14. Thereafter, again the issue of custom has come up for consideration before Hon'ble Supreme Court in case of Aliyathammuda Beethathebiyyappura Pookoya and Another vs. Pattakal Cheriyakoya and Others {2019 (16) SCC 1} wherein in para 40 the Hon'ble Supreme Court has held as under :-
"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."
15. Now coming to the facts of the case, it is quite vivid that the learned trial Court after appreciating the facts and evidence has recorded its finding that plaintiff is unable to prove that second and third wives as well as the daughter are not entitled get share in the suit property as per their custom prevailing in the community. 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.
16. For considering the submission of non-application of the Hindu Succession Act with regard to grant of share to the daughters in father's property of tribal community, it is expedient for this Court to extract the provisions of Section 2 (2) of the Hindu Succession Act, Section 4, 5 and 6 of the Central Province Law Act, 1875 which are as under:-
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"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, 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.The Repeal Act No.4 of 2018
4. Savings - The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to;
and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing; nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in or from any enactment hereby repealed;
nor shall the repeal by this Act of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force." (Emphasis supplied)
17. The issue of provisions of the Act of 1875 has come up for consideration before the Hon'ble Supreme Court in case of 13 Ramcharan and Others vs. Sukhram {2025 INSC 865} wherein the Hon'ble Supreme Court has held in paragraph 19, 26 to 28 as under :-
19. When applying the principle of justice, equity and good conscience, the Courts have to be mindful of the above and apply this otherwise open-ended principle contextually. In the present case, a woman or her successors, if the views of the lower Court are upheld, would be denied a right to property on the basis of the absence of a positive assertion to such inheritance in custom. However, customs too, like the law, cannot remain stuck in time and others cannot be allowed to take refuge in customs or hide behind them to deprive others of their right.
26.This discussion on equality under Article 14, which, needless to state, includes the aspect of gender equality within its fold will be, in our view, incomplete without reference to the first and most commendable step taken under the Hindu Law by way of the Hindu Succession (Amendment) Act, 2005 which made daughters the coparceners in joint family property. The object and reasons as stated in the Bill are instructive in the general sense and we reproduce the same with profit :
"...The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975..." (Emphasis supplied)
27. Similarly, we are of the view that, unless otherwise prescribed in law, denying the female heir a right in the property only exacerbates gender division and discrimination, which the law should ensure to weed out.
28. Granted that no such custom of female succession could be established by the appellant-plaintiffs, but nonetheless it is also equally true that a custom to the contrary also could not be shown in the slightest, much less proved. That being the case, denying Dhaiya her share in her father's property, when the custom is silent, would violate her right to equality vis-à-vis her brothers or those of her legal heirs vis-à-vis their cousin.
18. From the above stated discussion and facts of the case, it is quite vivid that both the learned Courts below have given concurrent finding of facts that defendants No. 1 to 3 are also entitled to 14 inherit the suit property described in Schedule A of the plaint, which neither suffers from perversity or illegality, as such no substantial question of law is required to be determined by this Court which is sine-quo-non for admission of the Second Appeal under Section 100 of the C.P.C. Thus, the second appeal is deserved to be dismissed at the admission stage itself, and accordingly, it is dismissed.
19. No order as to costs.
20. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) KISHORE Digitally signed by KISHORE KUMAR DESHMUKH Judge KUMAR DESHMUKH Date:
2025.09.12 15:28:56 +0530 Deshmukh