Chattisgarh High Court
Mangalu (Died Through Lrs) vs Jhariyo on 24 March, 2026
1
Digitally AFR
signed by
SHAYNA
KADRI
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved for orders on : 19.02.2026
Order passed on : 24.03.2026
SA No. 185 of 2004
1 - Mangalu (Died Through Lrs) As Per Honble Court Order Dated 19-
12-2025
1.1 - Kartik Ram S/o Late Shri Mangluram Aged About 55 Years R/o
Village Katkaliya, Tahsil Lailunga, Distt - Raigarh Chhattisgarh
1.2 - Devanand S/o Late Shri Mangluram Aged About 52 Years R/o
Village Katkaliya, Tahsil Lailunga, Distt - Raigarh Chhattisgarh
1.3 - Kripa Ram S/o Late Shri Mangluram Aged About 50 Years R/o
Village Katkaliya, Tahsil Lailunga, Distt - Raigarh Chhattisgarh
1.4 - Kirtan S/o Late Shri Mangluram Aged About 44 Years R/o Village
Katkaliya, Tahsil Lailunga, Distt - Raigarh Chhattisgarh
2 - Jagatram (Died) Through Lrs As Per Honble Court Order Dated 19-
12-2025
2.1 - Balesar Lakda S/o Late Shri Jagatram Aged About 50 Years R/o
Village Gharghoda, P.S. And Tahsil Gharghoda, Distt Raigarh
Chhattisgarh
2.2 - Mahesh Lakda S/o Late Shri Jagatram Aged About 42 Years R/o
Village Gharghoda, P.S. And Tahsil Gharghoda, Distt Raigarh
Chhattisgarh
... Appellants
versus
1 - Jhariyo W/o Thulu, D/o Faguram Aged About 60 Years Farmer, R/o
Village Kamarga, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
2 - Sukhani W/o Sakhu, D/o Faguram Aged About 58 Years Farmer, R/o
Village Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
2
3 - Tiklo W/o Ganjhu, D/o Faguram Aged About 56 Years Occupation -
Farmer, R/o Sonajori, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
4 - Kunjram (Dead) Through Lrs S/o Duga Uraon
4.1 - Smt. Roudhi (Deleted) As Per Honble Court Order Dated 19-12-
2025
4.2 - Panatram S/o Kujram Aged About 40 Years R/o Village And P.O.
Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
4.3 - Manohar S/o Kujram Aged About 37 Years R/o Village And P.O.
Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
4.4 - Fuljans S/o Kujram Aged About 30 Years R/o Village And P.O.
Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
5 - Smt. Saybani W/o Ajit, D/o Kunjram Aged About 32 Years R/o Kolen,
Tahsil Bagbahar, Distt Jashpurnagar
6 - Smt. Shanti W/o Laivnath, D/o Kunjram Aged About 35 Years R/o
Pithwa, Tahsil - Pathalgaon, Distt. Jashpur Chhattisgarh
7 - Jugnu (Dead) Through Lrs As Per Honble Court Order Dated 17-11-
2014
7.1 - Shouki Lal S/o Late Jugnu Aged About 37 Years R/o Village And
Post Katkalia, P.S. And Tahsil Lailunga, Distt. Raigarh Chhattisgarh
8 - Chini Ram (Chili) S/o Dunga Uraon Aged About 56 Years Occupation
Farmer, R/o Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
9 - Tejram S/o Malikram Aged About 22 Years Occupation Farmer, R/o
Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
10 - Smt. Sonmati D/o Malikram Aged About 20 Years Caste Uraon, R/o
Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
11 - Smt. Fulmati Wd/o Malikram Uraon Aged About 35 Years R/o
Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
12 - Sahasram S/o Mandal Uraon Aged About 30 Years Occupation
Farmer, R/o Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
13 - Gulab Ram S/o Mandal Aged About 27 Years Caste Uraon, Farmer,
R/o Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
14 - Smt. Kasturi D/o Mandal Uraon Aged About 30 Years Occupation
Farmer, R/o Katkaliya, Tahsil Gharghoda, Distt. Raigarh Chhattisgarh
15 - State Of Chhattisgarh Through Collector, Raigarh Chhattisgarh
... Respondent(s)
(Cause-title is taken from Case Information System) 3 For Appellants : Mr. Ravindra Sharma, Advocate and Mr. Vivek Kumar Shrivastava, Advocate For State : Mr. Dilman Rati Minj, Dy. Advocate General For Respondents : Mr. Anuroop Panda, Advocate No. 2-B & 8-B Hon'ble Shri Justice Amitendra Kishore Prasad) CAV Order
1. The present Second Appeal is being preferred under Section 100 of the Code of Civil Procedure, 1908, by the appellants being aggrieved by and dissatisfied with the judgment and decree dated 07/02/2004 passed by the learned II nd Additional District Judge, Raigarh (Chhattisgarh) in Civil Appeal No. 37A/2001, whereby the learned First Appellate Court allowed the appeal and set aside the judgment and decree dated 10/01/2001 passed by the learned Trial Court in Civil Suit No. 16A/1997 in the matter titled Mangalu & Another Vs. Jhario & Others. The learned First Appellate Court failed to properly appreciate the pleadings, documentary evidence, and findings recorded by the learned Trial Court, which had rightly decreed the suit in favour of the plaintiffs after due consideration of the material available on record, hence, this appeal before this Court, raising substantial questions of law which arise from the impugned judgment and decree and which require consideration and adjudication by this Court. 4
2. Facts of the case, as canvased by the appellants, are that the appellants, hereinafter referred to as the plaintiffs, instituted a Civil Suit before the Court of the learned Civil Judge Class-II, Gharghoda, seeking a decree for declaration of title to the extent of three-fourths share of the half portion of the suit land described in Schedule 'A', admeasuring 17.989 hectares, along with confirmation of their possession over the said property. The plaintiffs pleaded that the parties to the suit belong to the same family and are descendants of common ancestors, the genealogy of which has been detailed in paragraph 2 of the plaint. It was the case of the plaintiffs before the Trial Court that they belong to the Uraon caste, which is recognized as a Scheduled Tribe, and therefore the matters relating to succession and inheritance in their community are governed by their customary tribal laws and usages. According to the plaintiffs, the ancestral property described in Schedule 'A', measuring 17.989 hectares, had been partitioned long ago between Choital and Chunda, and thereafter the respective branches remained in separate possession of their allotted shares in accordance with that partition. The plaintiffs further pleaded that they are the grandsons of Chunda. Their father had two brothers, namely Fagu and Soma. Soma, who was the father of the plaintiffs, died during their childhood, and thereafter the plaintiffs were brought up and maintained by their uncle Fagu. It was further stated that Fagu had no male issue, and the defendant Nos. 1 to 3 are the daughters of Fagu. 5 According to the plaintiffs, no formal partition had taken place between Fagu and Soma during their lifetime and they continued to reside together as members of a joint family. Fagu lived with the plaintiffs until his death, and the last rites and funeral ceremonies of Fagu were performed by the plaintiffs. It was further pleaded that during his lifetime Fagu had partitioned the property belonging to himself and Soma amongst the plaintiffs, and that such arrangement was made with the knowledge and consent of defendant Nos. 1 to 3 and 4. Pursuant to the said arrangement, the plaintiffs remained in cultivating possession of their respective shares in the suit property. The plaintiffs further contended that subsequently defendant Nos. 1 to 3, allegedly at the instigation of defendant No. 2, started demanding partition of the share of their father. The plaintiffs asserted that since the parties belong to a tribal community, the custom prevalent among the Uraon tribe does not confer inheritance rights upon married daughters in the property of their father. Therefore, according to the plaintiffs, defendant Nos. 1 to 3 were not legally entitled to claim a share in the estate of Fagu. It was further pleaded that as Fagu died without leaving behind any male successor, the plaintiffs, being the nearest male relatives in the family, were the lawful successors to the estate of Fagu in accordance with the prevailing tribal customs. However, out of love and affection for their sisters, namely defendant Nos. 1 to 3, the plaintiffs, with the consent of the defendants, agreed to partition the land belonging 6 to Fagu equally among the plaintiffs and defendant Nos. 1 to 3. This arrangement was allegedly reduced into writing on 09.03.1984. On the basis of this arrangement, the plaintiffs claimed that they became the owners of three-fourths share of the portion of Chunda in the suit property. The plaintiffs further stated that the defendants subsequently filed an application before the Tahsildar claiming equal share in the property, which created a dispute regarding the title and possession of the suit land. In these circumstances, the plaintiffs were compelled to institute the suit seeking declaration of their share and confirmation of their possession over the suit property described in Schedule 'A'.
3. Upon service of summons, defendant Nos. 1 to 3 entered appearance and filed their written statement denying the allegations made in the plaint. The remaining defendants, despite service of notice, failed to appear before the Court and did not file any written statement, and therefore they were proceeded against ex-parte. In their written statement, defendant Nos. 1 to 3 denied the plaintiffs' claim that the provisions of the Hindu Succession Act, 1956 were not applicable to the parties. They also denied that the parties were governed by any such customary law excluding daughters from inheritance. The defendants specifically disputed the allegations that the plaintiffs had been brought up by Fagu, that Fagu resided with the plaintiffs until his death, or that the plaintiffs had performed his last rites. They further denied the contention that in the absence of a son the daughters have no 7 right in the property of their father. The defendants contended that in their society daughters do possess rights in the property of their father, and since the daughters of Fagu were alive, the plaintiffs could not claim to be the nearest successors to the estate of Fagu. They also denied the plaintiffs' allegation that Fagu had partitioned the property belonging to himself and Soma amongst the plaintiffs with their consent. The defendants further denied the alleged arrangement whereby they were said to have been given half share out of love and affection and also denied the execution of any document dated 09.03.1984 relating to such partition.
4. On the basis of the pleadings of the parties, the learned Trial Court framed six issues for determination. In support of their case, the plaintiffs examined Mangalu (PW-1), Jai Narayan Sidar (PW-
2), and Bundram Chouhan (PW-3). On the other hand, the defendants examined Sukhani Bai (DW-1), Jagsai Uraon (DW-2), and Dhaniram (DW-3) in support of their defence. After appreciating the oral and documentary evidence on record, the learned Civil Judge Class-II, Gharghoda, by judgment dated 10.01.2001, held that the parties belong to the Uraon caste, which is a Scheduled Tribe, and therefore by virtue of Section 2(2) of the Hindu Succession Act, 1956, the provisions of the said Act are not applicable to them in the absence of any notification issued by the Central Government extending the Act to members of such tribe. The Trial Court further held that the plaintiffs had inherited the 8 share of Fagu in the suit property and accordingly declared that the plaintiffs were title holders to the extent of three-fourths share of the half portion of the property described in Schedule 'A', and passed a decree of declaration in favour of the plaintiffs along with confirmation of their possession.
5. Being aggrieved by the said judgment and decree, defendant Nos.
1 to 3 preferred a First Appeal before the learned Additional District Judge. The learned First Appellate Court, by the impugned judgment dated 07.02.2004, held that the plaintiffs had failed to establish that there existed any custom prevailing in the Uraon community whereby, in the event of death of a male member without a son, his daughters would be excluded from inheritance and the property would devolve upon the nearest male member of the family. The learned First Appellate Court further held that the finding recorded by the Trial Court that the provisions of the Hindu Succession Act, 1956 were not applicable to persons belonging to the Uraon tribe could not be sustained. On these findings, the learned First Appellate Court allowed the appeal filed by defendant Nos. 1 to 3 and set aside the judgment and decree passed by the Trial Court in Civil Suit No. 16A/1997, along with costs. Being aggrieved by and dissatisfied with the said judgment and decree passed by the learned First Appellate Court, the plaintiffs have preferred the present Second Appeal before this Court.
9
6. Learned counsel appearing for the appellants/plaintiffs submitted that the judgment and decree dated 07.02.2004 passed by the learned Second Additional District Judge, Raigarh in Civil Appeal No. 37-A/2001, whereby the well-reasoned judgment and decree dated 10.01.2001 passed by the learned Civil Judge Class-II, Gharghoda in Civil Suit No. 16-A/1997 has been set aside, is wholly erroneous, contrary to the facts on record and unsustainable in law. It was contended that the learned First Appellate Court failed to properly appreciate the evidence and the settled legal position applicable to the case, and therefore the impugned judgment deserves to be set aside and the judgment of the Trial Court restored. At the outset, learned counsel submitted that the appellants were the plaintiffs before the Trial Court and had filed the suit for declaration of title, confirmation of possession and permanent injunction in respect of the suit property. In support of their claim, the plaintiffs examined three witnesses, namely P.W.1 Manglu, P.W.2 Jay Narayan Sidar and P.W.3 Bundram Chouhan, whereas the defendants examined D.W.1 Sukhani Bai, D.W.2 Jagsai Uraon and D.W.3 Dhaniram in rebuttal. After appreciating the oral as well as documentary evidence adduced by both the parties, the learned Trial Court had rightly decreed the suit in favour of the plaintiffs. However, the learned First Appellate Court, without proper appreciation of the evidence and legal position, reversed the well-reasoned findings recorded by the Trial Court. Learned counsel for the appellants further 10 argued that although the parties belong to the Uraon community, which is a Scheduled Tribe, they have been following Hindu customs and practices in matters of succession and inheritance, and therefore their succession is governed by such customary practices followed within their community. It was further submitted that according to the custom and usage prevailing in the Uraon caste, particularly in the locality where the parties reside, married daughters do not inherit the property of their father, and the property devolves upon the nearest male member of the family in the absence of a male issue. It was further contended that during the lifetime of Fagu and Soma, the properties had already been partitioned with the knowledge and consent of all concerned, including defendant Nos. 1 to 3, and pursuant to the said arrangement the plaintiffs were put in possession of their respective shares. Since then, the plaintiffs have been in cultivating possession of their share of the property without any interference from the defendants. Despite having full knowledge of the earlier partition and arrangement, defendant Nos. 1 to 3 subsequently attempted to assert their claim over the property and initiated proceedings before the Tahsildar seeking partition, which compelled the plaintiffs to institute the present civil suit. Learned counsel further submitted that late Fagu had no male successor, and therefore, according to the custom prevailing in their community, the plaintiffs, being the nearest male relatives, were the rightful successors to the estate of Fagu. Nevertheless, 11 out of love and affection for their sisters, the plaintiffs had agreed to give a portion of the property to defendant Nos. 1 to 3. This arrangement was reduced into writing on 09.03.1984, which clearly recorded the settlement arrived at between the parties. It was submitted that the said document clearly demonstrates that defendant Nos. 1 to 3 had accepted their share and had expressed their satisfaction regarding the arrangement.
7. Learned counsel emphasized that the Trial Court had rightly appreciated the oral evidence of the witnesses produced by the plaintiffs, who categorically deposed that according to the custom prevalent in the Uraon community, daughters do not inherit the property of their father when there is no male successor, and that the property devolves upon the nearest male member of the family. However, the learned First Appellate Court failed to give due consideration to these testimonies and erroneously concluded that the plaintiffs had failed to establish the existence of such customary practice. It was further argued that the learned First Appellate Court also failed to consider that Fagu was the absolute owner of his share in the property, and during his lifetime he had voluntarily given his share to the plaintiffs. The said act of Fagu, having been done during his lifetime and with full knowledge of the defendants, cannot subsequently be challenged by his daughters after several years. The learned Appellate Court, according to the appellants' counsel, committed a serious error in ignoring this vital aspect of the matter. Learned counsel also 12 contended that the learned First Appellate Court wrongly disregarded the document dated 09.03.1984 (Ex. P-1), which clearly evidences that the defendants had accepted approximately five acres of land as their share with full satisfaction. After accepting their share, the defendants never raised any objection for several years, and the plaintiffs continued to cultivate the remaining portion of the property without any dispute. Therefore, the subsequent claim made by defendant Nos. 1 to 3 before the Tahsildar was clearly an afterthought and contrary to the earlier settlement between the parties. It was further submitted that the learned First Appellate Court has committed a grave error in holding that the Hindu Succession Act, 1956 is applicable to the parties. Learned counsel argued that under Section 2(2) of the said Act, the provisions of the Act do not automatically apply to members of Scheduled Tribes unless a specific notification is issued by the Central Government extending the provisions of the Act to such tribes. In the present case, no such notification has been produced or proved by the defendants. Therefore, the finding of the Trial Court that the provisions of the Hindu Succession Act are not applicable to the parties was perfectly justified and legally sound. Learned counsel further submitted that the judgment and decree passed by the learned First Appellate Court is contrary to both facts and law, and is based upon erroneous and one-sided appreciation of the evidence on record. The learned Appellate Court ignored material evidence 13 and failed to properly evaluate the testimonies of the witnesses produced by the plaintiffs. As such, the findings recorded by the learned First Appellate Court are perverse and unsustainable in the eyes of law. It was also argued that the defendants had approached the Tahsildar under Section 178 of the Madhya Pradesh Land Revenue Code only in the year 1997, despite the fact that the partition between the parties had taken place as early as 09.03.1984 and the parties had been enjoying their respective shares ever since. The defendants, therefore, having accepted the arrangement and remained silent for several years, cannot now be permitted to reopen the matter and claim a fresh share in the property. Learned counsel further contended that the learned Trial Court had carefully examined the pleadings, documentary evidence and oral testimonies and had rightly decreed the suit in favour of the plaintiffs. The findings of the Trial Court were based on proper appreciation of evidence and the applicable legal principles. The learned First Appellate Court, however, reversed those findings without any justifiable basis and without assigning proper reasons, which renders the impugned judgment legally unsustainable. In support of the above submissions, learned counsel for the appellants placed reliance on the judicial precedents reported in AIR 1996 SC 1864, AIR 2002 MP 112 and AIR 2001 MP 159. In view of the facts and circumstances of the case and the submissions made hereinabove, it is prayed that this Court may be pleased to allow the present Second Appeal, set 14 aside the judgment and decree dated 07.02.2004 passed by the learned Second Additional District Judge, Raigarh in Civil Appeal No. 37-A/2001, and restore the judgment and decree dated 10.01.2001 passed by the learned Civil Judge Class-II, Gharghoda in Civil Suit No. 16-A/1997.
8. Learned counsel appearing for the respondents strongly opposed the submissions advanced on behalf of the learned counsel for the appellants and supported the judgment and decree dated 07.02.2004 passed by the learned IInd Additional District Judge, Raigarh in Civil Appeal No. 37-A/2001, whereby the appeal preferred by the respondents was allowed and the judgment and decree passed by the learned Trial Court was set aside and the suit filed by the plaintiffs was dismissed. It was submitted that the judgment of the learned First Appellate Court is legal, well- reasoned and based upon proper appreciation of the evidence and applicable law, and therefore the same does not call for any interference in the present second appeal. At the outset, learned counsel for the respondents submitted that the appellants had instituted the original civil suit seeking declaration of title and confirmation of possession over three-fourths share in half portion of the suit property, which originally belonged to the family of the parties. The learned Trial Court partly decreed the suit on the premise that the parties belong to the Uraon Scheduled Tribe and that the provisions of the Hindu Succession Act, 1956 were not applicable to them in view of Section 2(2) of the Act. However, the 15 learned First Appellate Court, upon reappreciation of the entire evidence on record, rightly reversed the findings of the Trial Court and dismissed the suit, holding that the plaintiffs had failed to establish any valid custom excluding daughters from inheritance. Learned counsel further submitted that the entire case of the appellants is based upon the assertion that under the customary law of the Uraon community, married daughters are not entitled to inherit the property of their father and that in the absence of a male successor the property devolves upon the nearest male agnate. It was argued that such a plea is contrary to law unless the alleged custom is strictly proved in accordance with settled legal principles. It was contended that a custom which is pleaded in derogation of statutory law must be ancient, certain, continuous, reasonable and proved by clear and cogent evidence. In this regard, learned counsel placed reliance upon the judgments of the Hon'ble Supreme Court in Gurdip Singh v. Punjab Singh (1975 (2) SCR 1047) and Salekh Chand v. Satya Gupta (2008) 12 SCC 605, wherein it has been held that the burden of proving a custom lies heavily upon the party asserting it, and that such custom must be proved by reliable and convincing evidence and cannot be established merely on the basis of vague oral statements.
9. It was further contended by learned counsel for the respondent that in the present case the appellants have completely failed to discharge the burden of proving any such binding custom. The 16 evidence led by the appellants clearly demonstrates that no credible material was placed on record to establish that daughters in the Uraon community are absolutely excluded from inheritance. Learned counsel pointed out that PW-1 Manglu, who deposed regarding the alleged custom, is the plaintiff himself and therefore an interested witness. His testimony alone cannot be considered sufficient to establish a community-wide custom. During cross- examination, PW-1 Manglu himself admitted that daughters are given a share in the property if they demand it, which completely demolishes the case of the appellants that daughters are totally excluded from inheritance. Such an admission clearly establishes that there is no rigid or binding custom of exclusion of daughters from succession in the community. It was also pointed out that the other two witnesses examined by the appellants, namely PW- 2 Jagnarayan Sidar and PW-3 Bundram Chauhan, do not even belong to the Uraon community. PW-2 belongs to the Sidar caste and PW-3 belongs to the Chauhan caste. Therefore, their testimony regarding the customs of the Uraon tribe has no evidentiary value and was rightly disregarded by the learned First Appellate Court. The appellants also failed to produce any documentary evidence such as customary law records, prior judicial precedents, or other instances demonstrating the existence of such custom. On the contrary, the respondents examined Jagmaya Oraon (DW-2), an independent witness belonging to the Uraon community, who categorically supported 17 the respondents' stand that daughters are entitled to inherit the property of their father. Thus, the evidence on record clearly supports the case of the respondents and establishes that the alleged custom pleaded by the appellants has not been proved. Learned counsel further submitted that once the appellants failed to establish the existence of any binding custom excluding daughters from inheritance, the succession must necessarily be governed by the general law of succession, namely the Hindu Succession Act, 1956. In this context, reliance was placed upon the judgment in Lalsa v. Bodhan Ram & Others (AIR 2001 MP
159), wherein it has been held that members of the Uraon tribe may be governed by the Hindu Succession Act in the absence of proof of a contrary custom. It was further submitted that according to the admitted genealogy, the property originally belonged to the common ancestor Bunda, who had two sons, namely Fagu and Soma. Upon the death of Bunda, his property devolved upon his two sons. Subsequently, Fagu died around the year 1983-84 leaving behind three daughters, namely the respondents, and no male issue. Under the scheme of succession provided in Section 8 of the Hindu Succession Act, the property of a deceased male devolves upon his Class I heirs, which include his daughters. Therefore, the share of Fagu legally devolved upon the respondents, who are his daughters. It was argued that the appellants, being the sons of Soma, cannot claim any right, title or interest in the share of Fagu, as the same exclusively belongs to 18 his daughters. The Trial Court, therefore, committed a serious legal error in granting three-fourths share to the plaintiffs in half portion of the land, which is contrary to the clear provisions of the statutory law. Learned counsel further addressed the reliance placed by the appellants on the alleged family arrangement dated 09.03.1984 (Exhibit P-1). It was submitted that the learned First Appellate Court rightly found that the said document cannot confer any legal right upon the appellants. The document is unregistered, and therefore in view of Section 49 of the Registration Act, it cannot create, transfer or extinguish any right in immovable property. Moreover, the execution of the document itself was doubtful and was not properly proved by examining the attesting witnesses. It was further argued that even otherwise, the contents of the said document themselves indicate that the property of Fagu was being partitioned between the appellants and the respondents, which implicitly acknowledges that the respondents had an independent right in the property of their father. Therefore, the document does not support the appellants' case; rather, it reinforces the respondents' entitlement to the property. Learned counsel also submitted that the learned First Appellate Court is the final court of fact, and its findings on appreciation of evidence cannot be interfered with in a second appeal unless such findings are shown to be perverse or contrary to law. In support of this proposition, reliance was placed upon the judgments of the Hon'ble Supreme Court in Kondiba Dagadu 19 Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 and Gurdev Kaur v. Kaki (2007) 1 SCC 546, wherein it has been held that the High Court in a second appeal under Section 100 of the Code of Civil Procedure cannot interfere with concurrent or well- reasoned findings of fact unless they are perverse or based on misreading of evidence. It was further argued that the findings recorded by the learned First Appellate Court are based upon proper appreciation of the evidence and correct interpretation of the law. The appellate court has thoroughly examined the pleadings, oral testimonies and documentary evidence, and has rightly concluded that the plaintiffs have failed to prove any custom excluding daughters from inheritance and that the respondents, being daughters of late Fagu, are legally entitled to succeed to his property. Learned counsel finally submitted that the impugned judgment passed by the learned First Appellate Court does not suffer from any illegality, perversity or jurisdictional error which would warrant interference by this Court in exercise of its limited jurisdiction under Section 100 of the Code of Civil Procedure. On the contrary, the judgment upholds the statutory rights of female heirs and is consistent with the legislative intent to secure inheritance rights for women. In view of the submissions made hereinabove, learned counsel for the respective respondents prayed that the present Second Appeal be dismissed, and the judgment and decree dated 07.02.2004 20 passed by the learned IInd Additional District Judge, Raigarh in Civil Appeal No. 37-A/2001 be affirmed.
10. I have heard learned counsel for the parties at length and have also carefully perused the pleadings of the parties, the oral and documentary evidence available on record, as well as the judgments and decrees passed by the learned Trial Court and the learned First Appellate Court.
11. The present Second Appeal has been admitted for consideration on the following substantial questions of law:
"(i) Whether, the finding of the first appellate Court was correct to set aside the order of the trial Court in absence of gazette notification under Section 2 sub section 2 of the Hindu Succession Act, 1956 and the parties are governed by the Hindu Succession Act, 1956?
(ii) Whether, the finding of the first appellate Court that the plaintiffs have failed to establish that they are governed by the customary law in the matters of succession is erroneous and illegal?"
12. Both the substantial questions of law are interrelated and arise from the core controversy regarding the applicability of the Hindu 21 Succession Act, 1956 and the alleged customary law governing succession among the parties.
13. From the pleadings of the parties as well as the evidence adduced before the Courts below, it is not in dispute that the parties belong to the Uraon community, which is recognized as a Scheduled Tribe. The legal consequence of this admitted fact assumes significance in view of Section 2(2) of the Hindu Succession Act, 1956. The said provision specifically excludes members of Scheduled Tribes from the operation of the Act unless the Central Government, by notification in the Official Gazette, directs otherwise. Section 2(2) of the Hindu Succession Act reads as under:
"2. Application of Act - (1) xxx xxx (2) 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."
14. Thus, from the above it is evident that the legislative intent is clear that the provisions of the Hindu Succession Act do not automatically apply to members of Scheduled Tribes. The applicability of the Act to such tribes depends entirely upon the issuance of a specific notification by the Central Government. 22
15. In the present case, the parties admittedly belong to the Uraon tribe. However, neither party has placed on record any notification issued by the Central Government extending the provisions of the Hindu Succession Act to members of the Uraon community. The plaintiffs also failed to produce any such notification either before the Trial Court or before the First Appellate Court. In absence of any such notification, the statutory bar contained in Section 2(2) operates with full force and effect. Consequently, the succession among the parties cannot be governed by the provisions of the Hindu Succession Act. The learned Trial Court, while deciding Issue No. 5, had rightly taken note of this legal position and recorded a finding that the provisions of the Hindu Succession Act are not applicable to the parties. The learned First Appellate Court, however, while reversing the judgment of the Trial Court, failed to properly consider the statutory exclusion contained in Section 2(2) of the Act and proceeded to determine the rights of the parties as if the provisions of the Hindu Succession Act were applicable to them. Such an approach, in the opinion of this Court, is clearly contrary to the express statutory mandate.
16. Once it is held that the provisions of the Hindu Succession Act are not applicable to the parties, the next question that arises for consideration is whether the plaintiffs have succeeded in establishing any customary law governing succession in their community, particularly the custom pleaded by them that married daughters are not entitled to inherit the property of their father and 23 that the property devolves upon the nearest male agnates in absence of a male issue.
17. It is a settled principle of law that a custom, in order to be recognized as having the force of law, must be ancient, certain, reasonable and continuously followed by the community. The burden of proving such custom lies heavily upon the party asserting it. The existence of a custom cannot be presumed; it must be established by clear, cogent and convincing evidence. In this regard, reference may be made to the judgment of the Hon'ble Supreme Court in the mattter of Salekh Chand (Dead) by LRs vs. Satya Gupta, reported in (2008) 13 SCC 119, wherein it has been held that the party claiming benefit on the basis of custom must specifically plead and prove such custom by leading reliable evidence. Similarly, this Court in the case of Smt. Prankumari and Another vs. Pyarelal Ahir and Others (Second Appeal No. 723 of 1995 and connected matters) has observed as follows:
"16. While dealing with the question of pleading and prove of custom, the Apex Court in the matter of Salekh Chand (Dead) by LRs. (supra) has held that the party who claims benefit on the basis of custom is required to plead and prove the custom. Para 26 of the said judgment reads thus :-
"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 24 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 as the established governing rule of a particular locality."
17. In the present case, virtually appellant No. 1 has neither pleaded nor proved the custom. She has not examined any witness to show that any specific custom was prevailing in her caste since long time and other persons have also observed that same custom.
In order to prove custom, even she has not examined any member of her caste except her mother Anjoriya Bai who has not stated any custom relating to adoption."
18. Keeping the aforesaid principles in view, if the evidence adduced by the plaintiffs is examined, it becomes evident that they have failed to establish the existence of any such binding custom. The plaintiffs examined P.W.-1 Manglu, P.W.-2 Jay Narayan Sidar and P.W.-3 Bundram Chouhan. P.W.-1 Manglu, who is one of the plaintiffs, stated in his examination-in-chief that according to the custom prevailing in their caste, daughters are not given any share in the ancestral property. However, during his cross- 25 examination he admitted that if there are no sons, the daughters are also given property. He further admitted that in his own family the sisters were called before the Panchayat and property was partitioned amongst them and a written document regarding such partition was prepared. This admission of P.W.-1 itself demolishes the plaintiffs' case regarding the alleged rigid custom excluding daughters from inheritance.
19. P.W.-2 Jay Narayan Sidar also stated that upon demand daughters are sometimes given property in partition and documents are executed for that purpose. Likewise, P.W.-3 Bundram Chouhan made similar statements but did not produce any concrete example or instance showing that daughters were consistently excluded from inheritance in the Uraon community. Thus, none of the witnesses examined by the plaintiffs has been able to establish that there exists a well-recognized, ancient and certain custom among the Uraon tribe whereby daughters are completely excluded from succession.
20. On the contrary, the evidence brought on record suggests that daughters are not absolutely barred from inheritance. The statements of the plaintiffs' own witnesses indicate that daughters have been given shares in property in several instances, particularly when no sons are available. Even the defence witness D.W.-1 Sukhani Bai stated that in her family partition had taken place and daughters were also given shares in the property. Though she also could not produce detailed instances of 26 customary law, her testimony further indicates that daughters are not universally excluded from inheritance in the community.
21. It is well settled that a custom cannot be established merely by making general or vague statements. Specific instances demonstrating consistent practice over a long period are required to prove the existence of such custom. In the present case, the plaintiffs have failed to produce any documentary evidence, prior judicial decisions, community records, or concrete examples demonstrating that daughters are excluded from succession under the customary law of the Uraon tribe. Thus, the plaintiffs have failed to discharge the burden of proving the custom pleaded by them.
22. From the overall appreciation of the evidence, it appears that the plaintiffs themselves have admitted that partition had earlier taken place with their sisters and that the sisters were given shares in the property. The document dated 09.03.1984, which has been produced by the plaintiffs themselves, also indicates that the property was partitioned amongst the plaintiffs and the daughters of Fagu. This circumstance clearly shows that the daughters were treated as having a right in the property and were allotted shares accordingly. Therefore, the plaintiffs cannot now be permitted to contend that daughters have no right in the property under the customary law of their community.
23. In view of the above discussion, this Court is of the considered opinion that:
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(i) The parties belong to the Uraon Scheduled Tribe and therefore the provisions of the Hindu Succession Act, 1956 are not applicable to them in absence of a notification issued under Section 2(2) of the Act.
(ii) The plaintiffs have failed to prove the existence of any valid customary law prevailing in their community which excludes daughters from inheriting the property of their father. The evidence on record rather indicates that daughters have been given shares in property in several instances, including in the family of the parties themselves.
24. The learned Trial Court, though correct in observing that the Hindu Succession Act is not applicable to the parties, committed an error in accepting the plea of the plaintiffs regarding exclusion of daughters from inheritance without any satisfactory proof of such custom. The learned First Appellate Court, after reappreciating the evidence on record, rightly came to the conclusion that the plaintiffs have failed to establish the alleged custom. The finding recorded by the First Appellate Court is based on proper appreciation of evidence and does not suffer from any perversity or illegality warranting interference in a Second Appeal under Section 100 of the Code of Civil Procedure.
25. Accordingly, the substantial questions of law framed by this Court are answered as follows:
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(i) The finding of the First Appellate Court that the plaintiffs failed to establish their claim based on succession cannot be said to be illegal merely on the ground of absence of Gazette Notification under Section 2(2) of the Hindu Succession Act, as the plaintiffs also failed to prove any binding customary law governing succession.
(ii) The finding of the First Appellate Court that the plaintiffs have failed to prove the existence of a customary law excluding daughters from inheritance is correct and based on proper appreciation of the evidence.
26. Consequently, this Court finds no merit in the present Second Appeal. The impugned judgment and decree passed by the learned First Appellate Court do not suffer from any legal infirmity requiring interference by this Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure.
27. In the result, the Second Appeal, being devoid of merits, is hereby dismissed. The judgment and decree dated 07.02.2004 passed by the learned IInd Additional District Judge, Raigarh in Civil Appeal No. 37A/2001 are hereby affirmed.
Sd/-
(Amitendra Kishore Prasad) Judge Shayna 29 Head Note Unless it is established that the parties are governed by a specific customary law under which daughters are excluded from inheritance, daughters belonging to a Scheduled Tribe cannot be deprived of their right to succeed to the property of their father. Although the application of the Hindu Succession Act, 1956 is excluded in view of Section 2(2) of the Act of, 1956 thereof for the person belonging to Schedule Tribe, in absence of any proven custom to the contrary, the right of succession cannot be denied to daughters.