Second Appeal No.184 of 2002

22nd January, 2015.

Petitioner Counsel: Shri M.I. DHATRAK
Respondent Counsel: Mr. V.D. DARNE

Cases Cited:
Madhu Kishwar and Ors. Vs. State of Bihar and Ors., AIR 1996 SC 1864 [Para 7,15]
Gopal Singh Bhumij Vs. Giribala Bhumij and Ors., AIR 1991 Patna 138 [Para 7,15]
Sapna Jacob, Minor, Vs. The state of Kerala and Ors., AIR 1993 Kerala 75 [Para 7,15]
Labishwar Manjhi Vs. Pran Manjhi and Ors., (2000) 8 SCC 587 [Para 8,15]
Dr. Surajmani Stella Kujur Vs. Durga Charan Hansdah and Anr., 2001 ALL MR (Cri) 464 (S.C.)=(2001) 3 SCC 13 [Para 11]

JUDGMENT

JUDGMENT :- This appeal filed under Section 100 of the Code of Civil Procedure challenges the decree passed by the first appellate Court whereby the dismissal of the suit has been set aside and decree for possession and perpetual injunction has been passed against the appellants.

2. The facts in brief are that the respondent - plaintiff and the appellants - defendants are close relatives. They claim to belong to Kolam community of Scheduled Tribes. According to the plaintiff, one Bhutu Atram was the owner of field Gut No.5, admeasuring 6 Hectare 44R land situated at village Rahati, Tq. Ghatanji Dist. Yavatmal. Said Bhutu had no male issue. Hence he had adopted one Jairam Kashiram Atram as his son by executing a registered deed of adoption on 25-3-1968. The name of said Jairam was changed to Dattatray. Said Dattatray died on 17-8-1994 and the plaintiff is his only son.

The defendant Nos.1 to 3 were the daughters of deceased Bhutu. According to the plaintiff, as per the customs prevailing in Kolam community and as per their own law of succession, the son alone is entitled to inherit the property of his father. Hence, according to the plaintiff, he being the adopted son of Bhutu he had acquired title to the suit fields by succession. According to the plaintiff, in the year 1989, the defendants along with one Chandrabhaga had filed Civil Suit No.131 of 1989 against the plaintiff's father for possession of suit field. In the said suit, the plaintiff's father had claimed right of inheritance and said suit came to be dismissed on 5-3-1991. However, during pendency of said suit, the defendant Nos.1 to 3 had taken forcible possession of a portion of the suit field and hence, aforesaid suit was filed claiming relief of possession in respect of said portion of the suit field. A decree for perpetual injunction in respect of remaining portion of land was also filed.

3. The defendants filed their written statement and stated that they were related with the plaintiff and they all were belonging to Kolam community. It was submitted that Bhutu had one son named Bhavanya who had expired prior to Bhutu. According to them, after the death of Bhutu, as per the law applicable to Kolam community, his widow, the defendants and the daughter of Bhavanya were the legal heirs and they had equal share in the suit property. It was denied that as per the custom prevailing in Kolam community, the son alone would become the legal heir for inheriting the property. It was also stated that the plaintiff was not a blood relative of Bhutu and hence, he had no right to succeed to the suit property. In the specific pleadings, a plea was taken that only the blood relatives of the deceased were entitled to claim rights as legal heirs. On these grounds aforesaid suit came to be opposed.

4. The plaintiff examined his grandfather Kashiram as his witness, while the defendants examined Laxmi who was the defendant No.3. The trial Court after considering the evidence on record held that the plaintiff had failed to prove that he was the owner of the suit property. The trial Court found that as the parties to the suit belonged to Kolam community, they were not governed by provisions of the Hindu Succession Act, 1956 (for short the said Act). The trial Court thereafter observed that there was no evidence on record with regard to the custom prevailing in Kolam community as regards inheritance. It also observed that the pleadings of the earlier suit had not been filed on record and hence, the plaintiff could not take any benefit of said adjudication. As it found that the plaintiff as well as the defendants were the legal heirs of the deceased Bhutu, it dismissed the suit by judgment dated 30-1-1999.

5. The plaintiff being aggrieved by aforesaid dismissal of the suit preferred appeal under Section 96 of the Code. The first appellate Court proceeded to hold that old Hindu Law was applicable to the members of Kolam community in the matter of inheritance and succession. It, therefore, held that the defendants being females were not entitled to any share in the suit property and it, therefore, held that the plaintiff alone was the exclusive owner of the suit property. It further held that the defendants were not justified in taking illegal possession of portion of the suit property during pendency of the earlier civil suit. It, therefore, allowed the appeal and decreed the entire suit thereby granting relief of possession and perpetual injunction.

6. It is in this background that the defendants have come up in second appeal. The following substantial question of law was formulated when the second appeal was admitted:

"Whether the members of 'Kolam' community are governed by Hindu Law"?

7. Shri M. I. Dhatrak, learned Counsel appearing for the appellants submitted that the first appellate Court erred in decreeing the suit. He submitted that there was no evidence on record to prove the aspect of custom as regards succession and inheritance amongst members of Kolam community. It was further submitted that in view of provisions of Section 2(2) of the said Act, it could not be held that old Hindu Law was applicable to the parties. Relying upon the decision of the Supreme Court in Madhu Kishwar and others vs. State of Bihar and others, AIR 1996 Supreme Court 1864, it was submitted that as the said Act was not applicable to tribals, they would be governed by custom which varied from people to people. He also placed reliance on the decision of Patna High Court in Gopal Singh Bhumij v. Giribala Bhumij and others, AIR 1991 Patna 138 to urge that the burden of proof was on the plaintiff to prove that the custom as alleged was being followed. He also relied upon judgment of Kerala in Sapna Jacob, Minor, v. The state of Kerala and Ors., AIR 1993 Kerala 75 in that regard. He, therefore, submitted that in absence of material evidence, the suit could not have been decreed. It was then submitted that in absence of pleadings in respect of Regular Civil Suit No.131/1989 being filed on record, the first appellate Court could not have given a finding that the defendants had illegally taken possession of part of the suit property during pendency of said suit.

8. Shri V. D. Darne, learned Counsel appearing for the respondent opposed aforesaid submissions by urging that the first appellate Court had rightly decreed the suit. He submitted that the plaintiff being the only male legal heir of deceased Bhutu, he alone was entitled to succeed to his property. He further submitted that in view of provisions of Section 2(2) of the said Act, the first appellate Court had rightly applied provisions of old Hindu Law while decreeing the suit. He placed reliance on the decision of the Supreme Court in Labishwar Manjhi vs. Pran Manjhi and others, (2000) 8 Supreme Court Cases 587 and submitted that customary law would be applicable in absence of provisions of said Act being applicable to the parties. He also relied upon para 71 of Central Provinces District Gazetteers (Facsimile Reproduction) pertaining to Yeotmal District in which there is reference to certain practices of Kolam tribals.

9. I have carefully considered aforesaid submissions and I have also gone through the record of the case. It is an admitted position that the plaintiff as well as the defendants belonged to Kolam Scheduled Tribe. According to the plaintiff, as per the custom prevailing in said community, a son alone is entitled to inherit the property of his father and as the defendants were the female heirs, they were not entitled to inherit the properties of Bhutu. It is his specific assertion that on account of such custom prevailing in Kolam community, he had succeeded to the suit properties. On the other hand, according to the defendants, after the death of Bhutu, his blood relatives alone were entitled to succeed to his properties as per law applicable to Kolam community. From aforesaid pleadings of the parties, it is clear that there is no dispute of they belonging to Kolam community. However, what is in dispute is the right and manner of succeeding to the properties of the deceased. While the plaintiff claims that such right is available only to a male heir, the defendants claim that such right is available only to blood relatives of the deceased. It is in this background that the substantial question of law as formulated will have to be considered.

10. The provisions of Section 2(2) of the said Act specifically exclude the applicability of the said Act to members of Scheduled Tribes. Both the parties are not at issue on this aspect of the matter. What is required to be adjudicated is the manner of succession and the right to inherit the property of the deceased. In this regard too, both the parties rely on custom. While the plaintiff claims that such right by virtue of custom is available only to a male heir, the defendants claim that by virtue of law applicable to members of their community only the blood relatives are entitled to succeed/inherit the property of the deceased.

11. The pleadings and proof as regards custom is the foundation for succeeding on that basis. This aspect has been highlighted by the Supreme Court in Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah and another, (2001) 3 Supreme Court Cases 13 : [2001 ALL MR (Cri) 464 (S.C.)]. In paragraphs 10 & 11 of aforesaid decision, it has been observed thus:

"10. For custom to have the colour of a rule or law, it is necessary for the party claiming it, to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (Moo iA at pp. 585-86) it was held:

"It is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends."

11. This Court in Mirza Raja Pushpavathi Vijayaram Gajapathi Raj Manne Sultan Bahadur v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram again reiterated the same position of law regarding the establishment of a custom upon which a party intends to rely."

Hence, it is imperative for the party relying upon custom to first plead and thereafter prove such custom.

12. In so far as the pleadings of the parties are concerned, as noted above, both the parties have claimed their respective rights on the basis of custom. The plaintiff has pleaded the right of only a male heir, while the defendants have pleaded about right of blood relatives. If the evidence led by the parties is considered, the same is, however, lacking in respect of respective custom pleaded by the parties. The evidence that has been led is with regard to adoption of the plaintiff and earlier Civil Suit No.131/1989. There is no evidence led on behalf of the plaintiff to support his plea that as per the custom prevailing amongst the members of Kolam community only the male heir is entitled to succeed. Though the defendants examined two witnesses, they have also not satisfactorily proved the aspect of being governed by such custom under which only the blood relatives are entitled to succeed to the property of the deceased. In absence of such evidence, therefore, it is difficult to accept the case of either of the parties in that regard.

13. The trial Court had, therefore, rightly found that though the plaintiff had pleaded about such custom, there was no evidence led by him in that regard. Such finding is recorded in para 13 of the judgment of the trial Court. The first appellate Court while reversing the decree passed by the trial Court has not set aside the aforesaid finding of the trial Court. It has merely sought to apply provisions of old Hindu Law while decreeing the suit. When it was the specific case of the plaintiff that he had the right of inheritance on the basis of custom prevailing amongst members of the Kolam community, then in absence of any such evidence in that regard, a finding could not have been recorded that the plaintiff was governed by old Hindu Law. This was not the case of the plaintiff. Hence, it is clear that the first appellate Court misdirected itself while decreeing the suit.

14. As regards the earlier adjudication in Regular Civil Suit No. 131/1989, the trial Court rightly held that in absence of the pleadings in aforesaid civil suit being filed on record, it could not be held that the principles of res judicata would be applicable. The first appellate Court has, however, proceeded to hold that the defendants illegally took possession of the suit property during pendency of the earlier civil suit and hence, the plaintiff was entitled to its possession. Said approach is also without any evidence on record and hence, said finding also cannot be sustained.

15. In para 41 of Madhu Kishwar and others (supra) relied upon by the learned Counsel for the appellant, it was observed that Scheduled Tribe women would succeed to the estate of their parents as per the general principles of the said Act. Aforesaid view is, however, a minority view. The majority view as expressed in paras 47 to 49 of aforesaid judgment has not accepted said view and it has been observed that provisions of said Act would not be applicable to the custom governed tribals. It is further observed that custom would vary from people to people and region to region. Hence, the observations made in para 41 of aforesaid decision cannot further the case of the appellants in the matter of seeking the right of inheritance. In Gopal Singh Bhumij (supra), it has been observed that the burden to prove that the parties have become sufficiently Hinduised to be governed in the matter of succession and inheritance by any school of Hindu Law is on the plaintiff. In Sapna Jacob (supra), it is observed that it has to be established by a party claiming rights on the basis of a particular custom or practice. In Labishwar Manjhi (supra) on the basis of the evidence on record, the Supreme Court found that the parties therein though belonged to Santhal Tribe, they were following the custom of Hindus. In that context, it was observed that provisions of Section 2(2) of the said Act could not be applied to the facts of said case. Observations in aforesaid decision cannot be made applicable to the facts of the present case.

16. Thus, from the aforesaid, it is clear that unless the custom on the basis of which a party claims any right is sufficiently pleaded and proved, the same cannot be a basis for any legal right. In the present case, the parties have pleaded diverse customs to substantiate their rights. There is, however, no evidence on record to record a finding as regards the custom prevalent amongst the members of Kolam community for the purposes of adjudicating the right of inheritance. The substantial question of law as framed cannot be specifically answered in absence of such evidence regarding custom. Considering the nature of right claimed and the defence raised, in my view, interests of justice would be served if the proceedings are remanded to the trial Court by granting opportunity to the parties to amend their pleadings and thereafter allow them to lead evidence on the aspect of the custom being followed in the matter of succession/inheritance.

17. In view of aforesaid, the following order is passed:

(1) The judgment dated 15-1-2002 passed in Regular Civil Appeal No.45/1999 is set aside.

(2) The proceedings are remanded to the trial Court with a direction to freshly adjudicate Regular Civil Suit No. 20/1998.

The parties would be at liberty to amend their pleadings and lead further evidence for proving their right based on custom. The evidence already on record shall also be taken into consideration while adjudicating the suit afresh.

(3) As the suit was filed in the year 1995, the proceedings before the trial Court are expedited with a direction to decide the said suit by the end of December, 2015.

(4) Record and proceedings be sent back forthwith to the trial Court.

(5) The second appeal is partly allowed in aforesaid terms with no order as to costs.

Appeal partly allowed.