SECOND APPEAL 388 OF 2016

4th January 2019

Petitioner Counsel: Shri D.R. Bhoyar
Respondent Counsel: Shri H. D. Dangre
Act Name: Hindu Succession Act, 1956 Chota Nagpur Tenancy Act, 1908 Indian Evidence Act, 1872 Constitution of India, 1950

Section :
Section 2(2) Hindu Succession Act, 1956 Section 6 Hindu Succession Act, 1956 Section 4 Hindu Succession Act, 1956 Section 7 Chota Nagpur Tenancy Act, 1908 Section 8 Chota Nagpur Tenancy Act, 1908 Section 76 Chota Nagpur Tenancy Act, 1908 Section 101 Indian Evidence Act, 1872 Section 102 Indian Evidence Act, 1872 Section 103 Indian Evidence Act, 1872

Cases Cited :
Para 7: Madhu Kishwar and Ors. Vs. State of Bihar & Ors., AIR 1996 SC 1864
Para 7: Bahadur Vs. Bratiya and ors., AIR 2016 H.P. 58
Para 8: Indian Young Lawyers Association & Ors. Vs. The State of Kerala & Ors., 2018(13)SCALE 75
Para 10: Mohammad Baqar and Ors. Vs. NaimunNisa Bibi & Ors., 1956 S.C. 548

JUDGEMENT

Heard Shri D.R. Bhoyar, the learned counsel for the appellants and Shri H.D. Dangre, the learned counsel for the respondents.

2. The internecine dispute between brothers and sisters who belong to the Gond tribe has reached this Court in Second Appeal. At stake, is the house property and agricultural land (“the suit property” for short) owned by their deceased father Bapurao Kodape, who indubitably died intestate. Both the Courts below have concurrently held that the daughters of deceased Bapurao Kodape have equal share in the suit property alongwith the sons. This finding is assailed by the sons of Bapurao Kodape who contend that the Gond customary law excludes daughters from inheritance.

3. Pleadings:
3.1) The daughters of deceased Bapurao Kodape – who shall be referred to as the plaintiffs instituted Regular Civil Suit 159 of 2010 seeking decree of partition, separate possession and permanent injunction. The plaintiffs aver that the suit property is ancestral property and since Bapurao Kodape died intestate leaving behind the plaintiffs – daughters and defendants – sons as the only legal heirs, the plaintiffs and the defendants have equal share in the suit property. The plaintiffs then aver that although their names are duly mutated in the revenue record, defendant 1 Babulal is in cultivating possession of the agricultural land and the plaintiffs are excluded from the proceeds thereof. The plaintiffs issued notice dated 21.12.2009 calling upon their brothers – the defendants to effect partition, but in vain.
The defendant 1 Babulal filed written statement (Exh. 9) stating that the suit property is not ancestral and is the self acquired property of deceased Bapurao Kodape. The defendant 1 admits that the names of the plaintiffs are duly mutated in the revenue record. The defendant 1 however, asserts that the revenue entries does not confer ownership and serve a limited fiscal purpose. The defendant 1 denies that the plaintiffs are entitled to share in the property and contends that tribal customs exclude the daughters from inheritance. The defendant 2 adopted the written statement of defendant 1 by praecipe dated 13.12.2010.
3.2) Issues framed by the trial Court: The trial Court framed the following issues: 1 Whether it is proved that, suit property is Ancestral ancestral property of Bapurao Kodape? …..Negative.
2. Whether it is proved that plaintiffs are entitled for partition of ¼ share each as prayed? … Affirmative.
3. Whether it is proved that, suit property cannot be partitioned as per provisions of Scheduled Tribes Rules? …Negative.
4. Whether it is proved that plaintiffs are entitled to mesne profit as prayed? …Affirmative.
5. What relief the plaintiffs are entitled?…As per final order.
3.3) Evidence:
Plaintiff 2 Smt. Kamalbai Madavi stepped into the witness box. In the examination in chief, she deposed in consonance with the plaint averments. Kamalbai proved the 7/12 extract of the agricultural field survey number 172/1 in which the names of the plaintiffs are recorded as owners alongwith their brothers Babulal and Shalik (Exh. 20). The 7/12 extract of field Survey number 172/3 which similarly records the names of the daughters and sons of deceased Bapurao as the owners, is proved and marked Exh. 21. Form 8A which is the Jamabandi Patrika of field survey number 107 in which the names of the daughters and sons of the deceased Bapurao Kodape are recorded as owners is proved and marked Exh. 22. The property tax register of Gram Panchayat Satoda is proved and marked Exh. 26 to demonstrate that the names of the plaintiffs and the defendants are recorded as owners of the house property. In response to a question in the cross examination, Kamalbai states that it is true that daughters get share in the property in accordance with the customs of the tribal community.
3.3(i) The defendants filed praecipe dated 11.11.2011 Exh. 34 stating that they did not wish to adduce any evidence, documentary or oral.
3.3(ii) The plaintiffs then preferred an application dated 2.12.2011 Exh. 35 contending that the certified copies of the deposition and record of Regular Civil Suit 34 of 2005, which was a suit instituted by the aunt of the plaintiffs and defendants i.e. the sisters of their deceased father Bapurao be exhibited. The defendants did not dispute the said documents which were therefore admitted in evidence and exhibited. Exh. 36 is the deposition of defendant 1 Babulal in Regular Civil Suit 34 of 2005 in which in paragraph 11 Babulal admits that his sisters have share and interest in the suit property.
3.4) Judgment of the trial Court: The trial Court held that the suit property is the self acquired property of deceased Bapurao. The trial Court then noted that it is the defendants who are denying right of the plaintiffs relying on tribal custom of exclusion of daughters from inheritance. The deposition of defendant 1 Babulal in Regular Civil Suit 34 of 2005, which is referred to supra, is treated as an admission and relevant fact. The trial Court relied on the said deposition, the documentary evidence on record interalia the revenue entries in which the names of the plaintiffs are recorded as owners and the failure of the defendants to adduce evidence in rebuttal to conclude that the plaintiffs have share in the suit property. The trial Court then proceeded to consider the contention of the defendants – brothers that in Gond community daughters and sisters are excluded from inheritance. The trial Court held that in view of the admission of the defendant 1 in Regular Civil Suit 34 of 2005, the burden to prove the custom excluding females from inheritance was that of the defendant 1, which he failed to discharge. The trial Court noted that the defendants neither adduced evidence to prove the custom that females are excluded from inheritance nor did the defendant suggest to the plaintiff 2 in her cross examination that in Gond community, the custom is that the females are excluded from inheritance. The trial Court decreed the suit for partition and possession.
3.5) Judgment in Regular Civil Appeal 265 of 2012: In the appeal preferred by the brothers, the following points were framed:
1. Has the plaintiffs proved that suit property is the ancestral property of deceased Bapurao Kodape? …No.
2. Has defendants proved that by virtue of custom in the community plaintiffs are debarred from claiming share in the suit property?. …No.
3. Are plaintiffs entitled for share in suit property? If yes, to what extent. …Yes. For 1/4th share each.
4. Whether the judgment and decree passed by the learned trial Court calls for any interference? …Yes.
The first appellate Court dismissed the appeal by observing thus:
No doubt custom of the Scheduled Tribes community are protected by law. Custom in the tribes differs from place to place as well as family to family. Thereby custom of the each family and community are to be proved by necessary pleadings and proof on record. Nothing is brought on record by the defendants in order to show the custom in the community. In absence of proof of custom in the tribes, principles of Hindu Law will be applicable for the inheritance of the property. Hence, I am of the opinion that by virtue of principles of Hindu Law, plaintiffs are entitled for their share in the suit property. It is admitted fact on record that suit property is the self acquired property of deceased Bapurao. Plaintiffs and defendants are the heirs of deceased Bapurao and thereby plaintiffs and defendants are entitled for their 1//4th share in the suit property. Hence, I answer point 1 to 3 accordingly.

4. Submissions:
Shri D.V. Bhoyar, the learned counsel for the appellants would submit that Gond is a Scheduled Tribe within the meaning of Clause (25) of Article 366 read with Clause (1) of Article 342 of the Constitution of India and by virtue of sub section (2) of section 2 of the Hindu Succession Act, 1956 (“Succession Act” for short), the provisions of the Succession Act are not applicable to the members of the Gond community unless the Central Government, by notification in the Official Gazette otherwise directs. Irrefutably, the Central Government has not applied the provisions of the Succession Act to the Gond community. Shri D.R. Bhoyar would then submit that since the parties are governed by the Gond tribal customs, it was the burden of the plaintiffs – sisters to plead and prove that the females are entitled to share in the property of their husband or father, which burden is not discharged. The submission is, that notwithstanding that the defendants – brothers have not stepped into the witness box to prove the custom of exclusion of daughters from inheritance pleaded in the written statement, the failure of the plaintiffs – sisters to prove the entitlement in accordance with the customary law must result in the dismissal of the suit. In rebuttal, Shri H.D. Dangre, the learned counsel for the defendants would submit that the plaintiffs – sisters having staked claim to the property of their father as natural legal heirs, it was the burden of the defendants – brothers to prove that in the Gond community, females are customarily excluded from inheritance, which is the plea in the written statement. Shri H.D. Dangre, the learned counsel would submit that the burden lies on the defendants, and is onerous, particularly, in view of the cogent evidence on record including the admission of the defendant 1 in Regular Civil Suit 34 of 2005, indicating that the right of the sisters in the suit property was acknowledged and recognized by the brothers. Shri H.D.Dangre would then submit that there is no material on record to suggest that generally or ordinarily under the customary law applicable to tribal, females are excluded from inheritance or are otherwise subjected to any discrimination. The plaintiffs – sisters are not asserting any right or share contrary to accepted or judicially recognized custom of exclusion from inheritance and were under no obligation to plead or prove a negative that is that daughters are not excluded from inheritance. Shri H.D. Dangre would submit that if the submission of the learned counsel Shri D.R. Bhoyar that the daughters must plead and prove that customarily female members of the Gond community are not excluded from inheritance is accepted, the implication would be that the Court would have to assume that generally and ordinarily under the customary law, females are discriminated in the matter of inheritance and that the plaintiffs – sisters are seeking to carve out an exception or to set up a right in derogation to the general and ordinary custom of exclusion from inheritance. Such assumption would, in the submission of Shri H.D. Dangre, militate against the constitutional philosophy enshrined in Articles 15, 21, 38, 39 and 46 of the Constitution of India and the concept of justice, equity and good conscious. Shri H.D. Dangre would conclude with the submission that both the Courts below have rightly proceeded on the basis that it was the burden of the defendants – brothers to plead and prove that under the Gond customary law, the females are excluded from inheritance.

5. Substantial questions of law framed:
By order dated 3.11.2017, this Court (Shri V.M. Deshpande, J.) formulated the following substantial questions of law:
(i) Whether the Hindu Succession Act and the Indian Succession Act apply to the Tribals?
(ii) When the appellants and the respondents are the Scheduled Tribes, whether decree could be passed for partition and separate possession?
It is not disputed that neither the Succession Act nor the Indian Succession Act, 1925 is applicable to members of the Gond community. The first question framed, therefore, is not involved in this appeal. Both the learned counsel Shri D.R. Bhoyar and Shri H.D. Dangre are in unison in the submission, that the fate of the litigation would necessarily depend on the answer to the question whether it was necessary for the sisters to plead and prove that females are not excluded from inheritance under the Gond customary law.

6. Consideration:
6(i) One of the seminal issues which would fall for consideration is whether under the customary tribal law applicable to the Gond community generally and ordinarily females are excluded from inheritance. If the answer is in the affirmative, there may be some substance in the submission that it was for the sisters to plead and prove their entitlement to share in the property of deceased Baburao since such an assertion would be inconsistent with or in derogation of the custom. The learned counsel Shri D.R. Bhoyar was repeatedly called upon to bring to my notice material to suggest that the general customary law applicable to tribals exclude females from inheritance. Shri D.R. Bhoyar fairly concedes the inability to do so.
6(ii) Scriptural Hindu Law governing succession was codified by the Hindu Law of Inheritance (Amended) Act, 1929, the Hindu Womens Right to Property Act, 1937 and the Hindu Succession Act, 1956. The discriminatory provisions of the Succession Act which limited the right of inheritance of daughters to the self acquired property of the father or mother and to the share of the deceased coparcener pursuant to the notional partition envisaged under section 6 of the Succession Act persuaded the State of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu to amend the provisions of section 6 to achieve the laudable object of gender equality, declaring daughter to be a coparcener in a joint Hindu family. The Parliament extensively amended the provisions of the Succession Act by the Amendment Act of 2005 with the avowed object of minimizing if not obliterating the pervasive gender discrimination against women particularly, in the matter of inheritance and a daughter is declared to be a coparcener having right in the coparcenery property from birth, subject to certain conditions and exceptions.
6(iii) Codification of scriptural Hindu Law notwithstanding, large number of population belonging to many tribes and castes continued to be governed by the customary laws. The customs, rituals and laws received constitutional protection under Article 341 read with Article 366(24) and Article 342(i) read with Article 366 (25).
6(iv) The customary law governing inheritance is not necessarily discriminatory against women. The customs governing inheritance are bound to vary from tribe to tribe, caste to caste and geographical area to geographical area. Illustratively, women headed joint family households in various castes and tribes along the Malabar Coast and the inheritance was matrilineal. The matrilineal system was brought to an end through legislative interventions in the nature of Hindu Succession Act, 1956 and the Kerala Joint Hindu Family System (Abolition) Act, 1975. Matrilineal system however, still prevails amongst the Garo and Khasi tribes of Meghalaya. In the customary law of the Garos, daughter is chosen to become the heiress of the household and property who need not be the youngest daughter although traditionally the married couple choose the younger daughter to succeed to the household and property. In Khasi tribe, the system of inheritance is matrilineal and only the youngest daughter is eligible to inherit the ancestral property. In the absence of any surviving daughter to the head of the family – who is known as ‘Ka Khadduh’ the ancestral property is inherited by her elder sister and after her by the youngest daughter of that sister.
6(v) Shri D.R. Bhoyar, the learned counsel for the appellants has not brought to my notice any instance of tribal custom which is discriminatory against women in the matter of inheritance. However, it would be reasonable to assume, considering that women have suffered gender discrimination in the matters of inheritance traditionally, that there would be tribes which follow customs which are not gender neutral and discriminate against women. However, for reasons spelt out infra I am not persuaded to proceed on the assumption that the general customary law applicable to the Gond community excludes women from inheritance and then to place the burden of proof on the plaintiffs – daughters of deceased Baburao to plead and prove a custom that the females are not excluded from inheritance.

7. I am conscious of the observations of the Hon'ble Apex Court that Rules of Succession may indeed provide different treatment, not necessarily equal and yet may not fall foul of Article 14 of the Constitution. This is emphasized by the Hon'ble Apex Court in Madhu Kishwar and Ors..vs.. State of Bihar & Ors reported in AIR 1996 SC 1864. However, what falls for consideration in this appeal is not the validity or otherwise of the Gond customary law governing inheritance, since concededly, no evidence is adduced either way; the limited question is whether the female plaintiffs were under the burden to plead and prove the custom that females are not excluded from inheritance.
7.1) In Madhu Kishwar, the Hon'ble Apex Court 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 Apex Court, by the 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 section 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.
7.2) The majority judgment in Madhu Kishwar 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.
7.3) A learned Single Judge of the Himachal Pradesh High Court in Bahadur ..vs.. Bratiya and ors reported in AIR 2016 H.P. 58, after holding that the material placed on record did not prove the custom in the Gaddi tribe of exclusion of daughters from right in property, has observed in paragraph 39 of the report that even if it is assumed arguendo, that such custom does exist, the same would be in derogation of section 4 of the Succession Act. The learned Single Judge of the Himachal Pradesh High Court then invoked the Constitutional philosophy underlying Articles 15, 38, 39 and 46 of the Constitution of India to hold that gender discrimination violates fundamental rights and daughters are entitled to equal share in the properties. The ultimate conclusion reached by the learned Single Judge is that the daughters in the tribal areas in the State of Himachal Pradesh shall inherit the property in accordance with the Hindu Succession Act, 1956 and not as per customs and usages.

8. As observed earlier, I am not called upon to decide the validity of the custom set up by the defendants – brothers to oppose the claim of their sisters to share in the property of their deceased father since concededly, no evidence is adduced by the defendants to prove the custom nor is it necessary to delve in the broader issue of testing a custom excluding woman from inheritance on the touchstone of constitutional provisions. However, in view of the submission of Shri H.D. Dangre, and which submission is made in the context of burden of proof, that to expect a natural female legal heir to prove that she is not excluded from inheritance under the customary law governing inheritance would be to ignore the constitutional philosophy underlying Articles 15, 21, 38, 39 and 46 of the Constitution of India and the principles of justice, equity and good conscious, reference to the said Constitutional provisions would be in order-
8.1) Article 13(1) declares that the pre-constitutional laws, to the extent of inconsistency with the fundamental rights shall, be void. Law includes custom or usage having the force of law. Article 14 strives at ensuring equality before law and strikes at arbitrariness and invidious discrimination. Discrimination on the ground of sex is prohibited by Article 15(1) and what is saved under Article 15(3) is the right of the State to positively discriminate in favour of women, the avowed object being to ensure that the social, economic and political disparity and injustice is obliterated. Article 21 articulates that no person shall be deprived of his life or personal liberty except according to procedure established by law. Width and amplitude of right of life is totally transformed by virtue of judicial pronouncements and an important facet of the right guaranteed is the right to live with human dignity. Part IV of the Constitution of India contains set of principles, called directive principles, which although not enforceable by court, are paramount in the governance of the country and which the State is under duty to apply in making laws. Article 38 emphasizes the duty of the State to strive to promote the welfare of the people by securing for all justice social, economic and political and to eliminate inequalities in status, facilities and liberties. Article 39 directs the State to ensure, interalia, that all the citizens, men and women equally, have the right to adequate means of livelihood. Article 46 speaks of the duty of the State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation. While the Scheduled Castes and Scheduled Tribes are specifically referred, the weaker sections of the people which are envisaged would not exclude women.
8.2) Gender inequality is an anathema to constitutional philosophy and morality. Obliteration of inequality is a cherished goal of the Constitution of India. A custom or usage which prima facie is not gender neutral would have to muster the test of Articles 14,15 and 21 of the Constitution of India. I may hasten to add, that while I am not called upon to decide the validity of the tribal custom set up on defence to resist the claim of the female tribals to share in the property of their deceased father, the issue of burden of proof must necessarily be addressed on the touchstone of Constitutional philosophy and morality. An insistence that a female tribal who is a natural legal heir must plead and then prove that under the customary law, she is not excluded from inheritance would run counter to the Constitutional imperative that the age old apathy, prejudices and gender discrimination directed against women must be addressed and minimized if not entirely eradicated.
8.3) It would be apposite to refer to the observations of his Lordship Justice Shri D.Y. Chandrachud in Indian Young Lawyers Association & Ors..vs.. The State of Kerala & Ors reported in 2018(13)SCALE 75 (Sabarimala Temple Case):
“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.”
“277 (100). The Indian Constitution is marked by a transformative vision. Its transformative potential lies in recognizing its supremacy over all bodies of law and practices that claim the continuation of a past which militates against its vision of a just society. At the heart of transformative constitutionalism, is a recognition of change. What transformation in social relations did the Constitution seek to achieve? What vision of society does the Constitution envisage? The answer to these questions lies in the recognition of the individual as the basic unit of the Constitution. This view demands that existing structures and laws be viewed from the prism of individual dignity.
Did the Constitution intend to exclude any practice from its scrutiny? Did it intend that practices that speak against its vision of dignity, equality and liberty of the individual be granted immunity from scrutiny? Was it intended that practices that detract from the transformative vision of the Constitution be granted supremacy over it? To my mind, the answer to all these, is in the negative.
The individual, as the basic unit, is at the heart of the Constitution. All rights and guarantees of the Constitution are operationalized and are aimed towards the selfrealization of the individual. This makes the antiexclusion principle firmly rooted in the transformative vision of the Constitution, and at the heart of judicial enquiry. Irrespective of the source from which a practice claims legitimacy, this principle enjoins the Court to deny protection to practices that detract from the constitutional vision of an equal citizenship.”

9. In view of the constitutional philosophy which seeks to minimize if not eliminate gender discrimination, I am persuaded to agree with Shri H.D. Dangre that if a 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. In my opinion, it would be the burden of the person who asserts such exclusion from inheritance under the customary law to so plead and prove. Such view would further be inconsonance with the principles of justice, equity and good conscious.

10. The Indian Evidence Act, 1872 deals with the burden of proof in Chapter VII and it would be apposite to note the provisions of section 101, 102 and 103 which read thus:
“101. Burden of proof.—Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustrations
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.
102. On whom burden of proof lies.—The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father.
If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.
103. Burden of proof as to particular fact.—The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustration
9[(a) ] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission.
B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.
10.1) The plaintiffs claimed right in the property of their deceased father as natural legal heirs. The relationship is undisputed. The defendants resisted the claim contending that the plaintiffs are excluded from inheritance under the customary law applicable to Gond community. Even on the touchstone of the provisions of section 101 to 103 of the Indian Evidence Act, the plaintiffs were not required to plead and prove that they are not excluded from inheritance. The burden that customary law excludes females from inheritance was that of the defendants. Be it noted, that there is cogent evidence on record including an admission of the defendant 1 Babulal that the right and share of the plaintiffs in the property of deceased Baburao was acknowledged and recognized by the defendants. In Mohammad Baqar and Ors...vs.. NaimunNisa Bibi & Ors reported in 1956 S.C. 548, the Hon'ble Apex Court enunciates the law thus:
“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.”
10.2) It must therefore, be held that the plaintiffs were under no burden to plead and prove that under the customary law applicable to the Gond community, females are not excluded from inheritance and that the burden to prove the exclusion was that of the defendants who set up such defence. The substantial question of law is answered accordingly.

11. The judgments impugned do not suffer from any infirmity.

12. The appeal is dismissed, with no order as to costs.

Appeal dismissed