[Cites 11, Cited by 0]

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)

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.

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.

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

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

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

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.

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

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,

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

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

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

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

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

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

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

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

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

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

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.

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

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

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-

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

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:

(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:

(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

Head Note