Jharkhand High Court
Unknown vs (A)(I) Bandhan Oraon S/O Kalara on 28 August, 2025
2025:JHHC:26321
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 46 of 1993 (R)
......
[Against the Judgment and decree dated 21.04.1993 passed by learned
2nd Additional District Judge, Gumla in Title Appeal No.35 of 1979]
......
1(ii) Karnalious Tirkey S/o Jewel Oraon
1(iii) Jalgras Tirkey S/o Jewel Oraon
1(v) Chorahati Tirkey D/o Jewel Oraon
All residents of Chetar P.O., P.S. and District - Gumla.
... Defendants/Appellants
Versus
1(a)(i) Bandhan Oraon S/o Kalara, resident of Village Chetar, P.O., P.S.
& District Gumla
1(b) Istafin @ Gudu Oraon S/o Suleman Oraon
Both the heirs from the 1st wife
1(c) Piyari Kujur
1(d) Prem Prakash Kujur
1(e) Dhanmasih Kujur
1(f) Mertha Pup Kujur
1(g) Momen Kujur
1(h) Neman Kujur
1(i) Jayant Kujur
1(j) Jayanti Kujur
All Sons and daughter from the 2nd wife, resident of Village
Chetar, P.S. and District Gumla
... Plaintiffs/Respondents
......
For the Appellants : Mr. Kundan Kr. Ambastha, Adv.
Md. Abdul Wahab, Adv.
Md. Sumit Kumar, Adv.
Mr. Anurag Chandra, Adv.
For the Respondents : Mr. Shailendra Kumar Singh, Adv.
......
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
......
JUDGMENT
C.A.V. on 15.07.2025 Pronounced on 28.08.2025
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1. I have already heard the arguments advanced by
Mr. Kundan Kr. Ambastha, learned counsel appearing for the
appellants as well as Mr. Shailendra Kumar Singh, learned
counsel appearing for the respondents.
2. Instant second appeal has been preferred by original
appellant Jewel Oraon (since deceased) and represented
through legal representatives being aggrieved and
dissatisfied with the judgment and decree dated 21.04.1993
(decree signed and sealed on 07.05.1993) passed by learned
2nd Additional District Judge, Gumla in Title Appeal No.35 of
1979, whereby and whereunder the judgment and decree
passed by learned Trial Court dismissing the suit of the
plaintiff passed in Title Suit No.16 of 1974 dated 19.02.1979
has been reversed and set aside by the first Appellate Court.
Accordingly, suit of the plaintiff was decreed.
3. It is to be mentioned at the very outset that initially the
First Appeal No.35 of 1979 was heard and decided by A.J.C.
10th, Ranchi who vide judgment dated 28.03.1980 allowed the
appeal setting aside the judgment and decree passed by
learned Trial Court and the suit of the plaintiff/appellant was
decreed. Against the said judgment, Second Appeal No.94 of
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1980(R) was preferred before the Hon'ble High Court, Patna,
Ranchi Bench which was decided by the Hon'ble Court vide
order dated 15.01.1990 and the judgment passed by Appellate
Court dated 28.03.1980 was set aside and the matter was
remanded back with certain directions to hear the first appeal
afresh and pass fresh judgment in accordance with law.
Accordingly, the appeal was reheard and appeal was allowed
and the suit of the plaintiff was decreed.
FACTUAL MATRIX
Admitted Genealogical Table
Mangra Oraon
Ghura Oraon Kunjaria Oraon Jaimashi Oraon
Suleman Oraon Died issueless Hulasi Orain
(Plaintiff) (Def.No.1)
Mary Orain Fuli Orain Premnica Orain
(Married to Jewel
Oraon Def.No.2)
(Ghardamad)
4. The plaintiff Suleman Oraon instituted this Title Suit
No.16 of 1974 for declaration of the deed of Ghardamadship
dated 09.05.1974 executed by Hulasi Orain (defendant No.1)
in favour of defendant No.2 Jewel Oraon as illegal, void and
not binding on the plaintiff. It is further stated that Mangra
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Oraon is the common ancestor of the parties who had three
sons namely Ghura Oraon, Kunjaria Oraon and Jaimashi
Oraon. Plaintiff Suleman Oraon is the son of Ghura Oraon
and Kunjaria Oraon died issueless. Defendant No.1 Hulasi
Orain is the wife of Jaimashi Oraon (deceased). Jaimashi had
three daughters namely Mary Orain, Fuli Orain and Premnica
Orain. Mary Orain was married to defendant No.2 Jewel
Oraon more than 30 years ago having several adult children.
Fuli Orain was married to Mangal Oraon more than 15 years
ago and the last daughter Premnica Orain was married to
Prabhu Oraon more than 5 years ago by the joint family and
out of joint funds. The landed properties of the family were
recorded jointly in the name of the plaintiff Suleman Oraon,
Kunjaria Oraon and Jaimashi Oraon in the revisional record
of rights. Both Kunjaria and Jaimashi died without any male
issue. It is further stated that female child of the Oraon
community has no right to inherit the joint properties or to
keep Ghardamad. The defendant No.1 Hulasi Orain being an
Oraon lady had no right over the properties left by her late
husband except the right of maintenance according to Oraon
law and custom. The defendant No.1 is being maintained by
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the plaintiff after death of her husband. It is further alleged
that the defendant No.2 Jewel Oraon was never adopted as
Ghardamad by the last male owner Jaimashi. The defendant
No.2 succeeded in inducing the defendant No.1 and got a
deed of Ghardamadship executed in her favour against the
law and custom prevalent against the Oraon community and
the family of the parties in particular. The said deed has been
executed surreptitiously and fraudulently with a view to
contravene the law and raise a false claim of share in the
property already inherited by the plaintiff. It is further
alleged that due to execution of the said deed a threat to the
right, title and interest of the plaintiff has been caused in
respect of the properties left by intestate Jaimashi Oraon.
5. The defendants appeared and filed their written
statement stating inter alia that the suit is not maintainable,
barred by law of limitation, plaintiff has no cause of action for
the suit. It is denied that the plaintiff is agnatic relation of
Jaimashi Oraon (deceased) rather real fact is that late Ghura
Oraon had kept a woman from Kolda, who brought a child
with her and that child is the plaintiff. The plaintiff being a
cunning man managed to get his name entered in the
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revisional survey records, but he never came in possession
nor he had any concern over the land of Ghura Oraon and his
brothers. Therefore, the claim of plaintiff being in jointness
with Kunjaria Oraon and Jaimashi Oraon does not arise. The
defendant No.1 has full right to execute the deed of
Ghardamadship and had a pious obligation of her husband
who had kept defendant No.2 as Ghardamad since long, who
is looking after all the cultivation work and is maintaining
defendant No.1. Both Fuli and Premnica were married to
different village but defendant No.2 and his wife Mary Orain
were kept in the house by Jaimashi as Ghardamad who has
acquired full rights of a son. It is contended that the deed of
Ghardamadship is legal and binding. There is no question of
any fraudulent inducement or foul play, hence, suit of the
plaintiff is liable to be dismissed with cost.
6. On the basis of pleadings of the parties following issues
were settled by the learned Trial Court for adjudication :-
(i) Is the suit maintainable in its present form?
(ii) Has the plaintiff got any cause of action for the suit?
(iii) Is the suit is barred by law of limitation?
(iv) Is the Genealogical table as given in Schedule "A" of
the plaint correct?
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(v) Were the descendants of Mangra Oraon died in
Jointness?
(vi) Is the story of Ghardamadship set up by the defendants
correct?
(vii) Is the deed of Ghardamadship executed by the
defendant No.1 in favour of defendant No.2, void,
illegal and not binding?
(viii) Is the plaintiff entitled to any relief?
7. In the course of trial, the plaintiff has examined nine
witnesses: P.W.1 Mangal Aind, P.W.2 Haraknath Sahu, P.W.3
Ashwini Kumar Sinha and P.W.9 Shambhu Prasad are formal
witnesses, P.W.4 Suleman Oraon is plaintiff, P.W.5 Daud
Oraon, P.W.6 Biri Oraon, P.W.7 Lurku Singh and P.W.8 Tulu
Oraon.
8. Apart from aforesaid oral testimony of witnesses
following documentary evidence of plaintiff are as under :-
Exhibit 1 to 1/p : Rent Receipts issued in the name of
Suleman Oraon.
Exhibit 2 : Plaint
Exhibit 3 : Copy of order passed in Mutation
Case No.9 R 27/74-75, Jewel Oraon vs. Suleman Oraon,
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whereby the mutation case was dismissed for want of
permission.
Exhibit 4 : Certified copy of khatian
9. On behalf of defendants following witnesses were
examined: D.W.1 Juwel Tirkey (defendant himself), D.W.2
Emil Toppo is the scriber of deed of Ghardamadship (Ext.C),
D.W.3 Hulasi Orain, D.W.4 Prabhu Oraon, D.W.5 Gunda
Mahto Kumhar and D.W.6 Michael Kujur.
10. Apart from aforesaid oral testimony of witnesses,
following documentary evidence has been adduced by
defendants :-
Exhibit A : Written statement
Exhibit A/1 : Signature of S.P. Sharma, Advocate
on Exhibit A.
Exhibit B : Rent receipt
Exhibit C : Deed of Ghardamadship dated
09.05.1974 executed by Hulasi Orain in favour of Jewel.
Exhibit C/1 : Signature of scriber on Exhibit C.
Exhibit D : Correction slip with signature of
Satyanarayan Mishra on the M form.
Exhibit E : Certified copy of banda parcha.
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11. The learned Trial Court has taken up and adjudicated
Issue No.(v) at first. The learned Trial Court after going
through the oral and documentary evidence of the parties
arrived at conclusion that admittedly both parties belong to
Oraon community and governed by their own customs and
rules. It was further held that in the Oraon community, there
is presumption that on the death of head of family, the lands
are generally divided wherein widow and unmarried
daughter gets some share of property for maintenance till
their life for remarriage. In the instant case, some property
has also been mutated in the name of defendant Jewal Tirky
vide Mutation Case No.5 R 27/1978-79 (Ext.D). Therefore,
there is no presumption of jointness of the property as
pleaded by the plaintiff. Therefore, this issue was decided
against the plaintiff and in favour of defendant. While
deciding the Issue Nos.(vi) and (vii), it was held on the basis
of oral and documentary evidence as well as as per prevailing
customs in the Oraon community that defendant No.2 has
been rightly taken as Ghardamad and the deed of
Ghardamadship (Ext.C) executed by defendant No.1 suffers
from no illegalities and cannot be considered as void and not
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binding. Accordingly, aforesaid issues were also decided
against the plaintiff and in favour of defendants. The other
issues, i.e., Issue Nos.(i), (ii), (iii) and (viii) have also been
decided against the plaintiff in view of findings recorded all
four issues against the plaintiff and in favour of defendants.
In the result, the suit of the plaintiff was dismissed.
12. The learned first Appellate Court in its first innings
before remand from the High Court vide order passed in
Second Appeal No.94 of 1980(R) mainly concentrated to
decide whether the deed of Ghardamadship (Ext.C) was valid
and whether the defendant No.1 had the right to execute any
such deed. In this connection, it was held that the deed of
Ghardamadship is valid in all respect because according to
para 12 of the written statement, the defendant No.1 had the
pious duty to confirm the act of her husband by executing a
deed in favour of defendant No.2. The Appellate Court also
discarded the findings of the Trial Court on the score that the
two ingredients of Ghardamadship, i.e., Dhangarship and
renunciation of Oraon's claim in natural father's property
have not been fulfilled. Therefore, allowed the appeal and set
aside the impugned judgment of trial court.
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13. The High Court in Second Appeal No.94 of 1980(R),
while remanding back the case before the first Appellate
Court for passing afresh judgment following guidelines were
issued :-
(i) The defects of pleading in the written statement of
defendant No.2 in connection with his adoption as
Gharjamai/Ghardamad should be ignored in view of
poor drafting prevalent in Muffasil Courts and should
be taken flexible view in the matter. The admission of
defendant No.2 Jewel Oraon appearing in his oral
testimony regarding share in the property of his
natural father should not be kept in mind while
deciding the matter.
(ii) The learned Appellate Court should keep in mind that
merely by execution of Ghardamad deed by the
(defendant No.1) wife of Jaimashi Oraon is not
sufficient to create any right in favour of Ghardamad
unless it is proved from other evidence that Jaimashi
Oraon himself admitted the defendant No.2 as
Ghardamad and decide the matter particularly in
respect of decision on Issue No.6 settled and decided by
the learned Trial Court.
14. The learned first Appellate Court after remand of the
case, decided first appeal afresh on following points :-
(a) Whether plaintiff Suleman Oraon and Jaimashi Oraon
were joint, if yes, how it will affect the suit?
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(b) Whether defendant No.2 was kept as Ghardamad by his
father-in-law Jaimashi Oraon and whether the factum
of Ghardamadship is true?
(c) Whether judgment of learned Trial Court is fit to be
confirmed or not?
As regards point No.(a), the learned Appellate Court
has recorded clear cut findings that the plea of jointness
or partition has not been pleaded either by plaintiff or
by defendant. Therefore, such type of issues was not
required and any evidence beyond the pleading is also
not fit to be considered. In spite of that decided the said
point in favour of the plaintiff/respondents and the
consequences of jointness has also been held against the
defendant.
15. So far point No.(b) is concerned, the learned Appellate
Court has relied upon customs prevailing in Oraon
Community for adopting a person as Ghardamad on the
basis of observation made by Hon'ble Patna High Court in
the case of Jena Munda vs. Dukhan Pahan and Ors. reported
in AIR 1948 Patna 10, para 5 of which reads as under :-
"5. The learned Additional Judicial Commissioner,
following the ruling reported in Naika Uraon v. Butna
Uraon; A.I.R. 1930 Pat. 278, lays down five
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conditions for a ghardamad to succeed, namely, (1)
that the father-in-law was sonless, (2) that the
ghardamad lived in the house of the father-in-law for
two years before his marriage; (3) that he was then
married; to the daughter; (4) that there should be an
intention all along in the minds of the parties that the
status should be acquired; and (5) that the ghardamad
had definitely given up his title to succeed to any
property of his natural father. This was a case,
however, not on the Munda custom, but on the Uraon
custom. Practically the only authority on the Munda
customs is Rai Bahadur S.C. Roy's book on the
Mundas, and the Courts should therefore have
confined them-selves to what was laid down in that
book and to the evidence. Neither in the book nor in the
evidence is any condition specified that the marriage
must have taken place after the death of the son. What
the Rai Bahadur says is, at p.433.
The gor jonrea or ghar-dijoa who lived with
his sonless deceased father-in-law till the
death and assisted him in the cultivation and
other affairs till his death, will get all the
movable property left by the deceased, and
such share of the real property, if any, as
according to the circumstances the panch may
think it proper to give him, the rest going to
the nearest male agnate or agnates.
If then we ignore the fact that Jena was married to the
daughter before the death of the son, and not adopted
as a ghardamad until after the death of the son some
years after the marriage, it is apparent that the Courts
below have really arrived as the necessary findings in-
favour of the appellant."
16. The above conditions were considered by the Appellate
Court in the light of oral evidence of the parties, particularly
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the evidence of defendant No.2 Jewel Oraon who has
admitted that Jaimashi had one son and other children were
also born to him but died in quick succession. He also admits
that after death of son of Jaimashi, he went to the house of
Jaimashi. Thereafter, his wife was born but the learned
Appellate Court found that in presence of a son, Jaimashi
could not adopt a Ghardamad and the story projected by the
defendant No.2 appears to be not reliable. Therefore, arrived
at conclusion that the defendant has failed to prove
Ghardamadship from Jaimashi. In view of specific decision
on point Nos.(a) and (b), the point No.(c) was also decided in
favour of plaintiff and against the defendants. Accordingly,
suit of the plaintiff was decreed which has been challenged in
this appeal.
17. Present Second appeal was admitted vide order dated
08.12.1993 on following substantial questions of law :-
(i) Whether the conditions set out by the lower Appellate
Court for adoption of a person as Ghardamad in Oraon
tribe are valid and based on any established customs
and/or judicial pronouncements?
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(ii) Whether the findings of the Court below are
unsustainable in law because of having been arrived at
on the basis of conjecture and surmises?
18. Learned counsel for the appellants has relied upon
following grounds for setting aside the impugned judgment
and decree of reversal passed by learned first Appellate
Court.
(i) The learned Appellate Court failed to properly
appreciate the directions/observations made by
the Hon'ble High Court passed in S.A. No.94 of
1980(R) and has ignored virtually all the
directions. The learned Appellate Court has made
no observation on any of the point settled to be
decided as to what was the direction of the
Hon'ble Court and how he has meted out with
such direction.
(ii) There was observation of the Hon'ble Court while
remanding the case for fresh decision that loose
drafting should be ignored as pleaded by the
defendant, the frivolous admission appearing in
evidence of defendant should be ignored and
particularly the Issue Nos.6 should be decided on
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the basis of prevailing customs and law in the
light of evidence adduced by parties.
(iii) The learned Appellate Court has miserably failed
to meet out with the reasons of the learned Trial
while dismissing the suit of the plaintiff and
based its finding only on the basis of conjecture
and surmises. The learned Appellate Court
delving into the matter of jointness or separation
of the property between Jaimashi and the plaintiff
at the time of his adoption as Ghardamad has
travelled beyond the materials available on
record.
(iv) The basis for decision by the learned Appellate
Court regarding validity of the adoption of
defendant No.2 as Ghardamad in reported
judgment in the case of Jena Munda (supra) is not
conclusive in nature.
(v) Defendant No.2 was brought to the house of
Jaimashi since long long ago and was working in
his house as a Dhangar with intention to keep him
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as Gharjamai. Subsequently, other two younger
daughters of Jaimashi have been married and
residing in their matrimonial home respectively
but since childhood and after marriage with the
eldest daughter of Jaimashi, i.e., Mary Orain, the
husband, defendant No.2 Jewel Oraon, has
renounced all connection with his natural family
and residing at Village Chetar and out of his
wedlock as a Ghardamad children have been born
who are also residing at Village Chetar.
(vi) The deed of Ghardamadship was executed by
wife of Jaimashi in the year 1974 in a token of
confirming the Ghardamadship of the defendant
No.2 which has already happened during lifetime
of her husband Jaimashi.
In view of above submissions, therefore, it is prayed
that impugned judgment and decree passed by first
Appellate Court is liable to be set aside and the
judgment and decree passed by the Trial Court
deserves to be restored. Accordingly, this appeal may
be allowed.
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19. On the other hand, learned counsel for the
respondents/plaintiff has opposed the aforesaid points of
argument raised on behalf of appellants and submitted that
the learned Trial Court has committed error of law in
dismissing the suit but the learned first Appellate Court has
considered the matter in threadbare manner as per
observations and directions given by the Hon'ble High Court
in Second Appeal No.94 of 1980(R) which suffers from no
illegality or infirmity. The substantial questions of law
formulated in this appeal have no leg to stand. This appeal
has no merit and fits to be dismissed.
20. I have gone through the judgment of Trial Court as well
as the first Appellate Court after remand of the Second
Appeal No.94 of 1980(R).
21. It appears that at the time of remand, there was
direction to ignore the poor pleadings of the defendant and
also his evidence regarding some properties given to him
from his original family and decide the Issue No.6 settled by
the learned Trial Court in right perspective in accordance
with law. The Appellate Court has again entered into the
question of jointness of the property in spite of recording
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definite findings that such type of exercise is not relevant for
deciding the Ghardamadship of defendant No.2. The
Appellate Court has formulated a point [k corresponding to
Issue No.6 settled by learned Trial Court. The Appellate
Court placing reliance upon reported judgment in Jena
Munda (supra) relied upon para No.5 of the said judgment
wherein the law prevailing among Oraon community in
respect of Ghardamadship has been discussed as
propounded in the case of Naika Uraon vs. Butna Uraon,
AIR 1930 Patna 278, the following five conditions have been
laid down for a Ghardamad to succeed, namely :-
(i) that the father-in-law was sonless.
(ii) that the ghardamad lived in the house of the father-in-
law for two years before his marriage.
(iii) that he was then married to the daughter.
(iv) that there should be an intention all along in the minds
of the parties that the status should be acquired.
(v) that the ghardamad had definitely given up his title to
succeed to any property of his natural father.
22. A book title "The Oraon's of Chota Nagpur" authored
by S.C. Roy has also been relied upon wherein at page
No.229, it is said that "if there is no male issue or adopted
son, but only a Ghar-damad duly adopted into the house as a
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'prospective son-in-law' by the last male owner or even by his
widow and since married to a daughter of a deceased and
living in the house, - the rajhas lands left by the deceased
male owner shall on the death of the widow go to such
ghardamad and the bhuinhari lands shall go to the nearest
male agnate or agnates.
As regards agnates, it is also mentioned in the said book
at the same page as under:
Agnates
If an Oraon owner of property dies leaving neither a son
(either born of him or duly adopted) nor any lineal male
descendant of such a son nor a ghardamad adopted into
the house as a prospective son-in-aw, the property shall
go to the nearest male agnate or agnates ---------------
23. It appears from the pleadings of the parties particularly
the written statement of defendants and the evidence of
defendant No.2 during trial that he was brought by Jaimashi
after death of his son and several other children born to him
who died in quick succession. He was looking after the
cultivation and providing other assistance and residing there
since long. Thereafter, he was married with eldest daughter
of Jaimashi and he was also treated as Ghardamad by
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Jaimashi and his wife since after solemnizing marriage more
than 30 years ago, he is still residing at his sasural giving up
all relationship with original family. Although, some
contradictions and discrepancies have appeared in his
evidence which has been stretched much by the Appellate
Court and made the basis for disbelieving the case of
defendant. The execution of registered document regarding
Ghardamadship (Ext.C) has also been found invalid on the
ground that it was executed when the plaintiff was not
providing lands to defendant No.2. Such type of reasoning
given by the first Appellate Court beyond the specific
directions issued by the Hon'ble High Court while deciding
the Second Appeal No.94 of 1980(R), appears to be absolutely
absurd. The learned Appellate Court has miserably failed to
comply with the observations made by the Hon'ble High
Court to ignore the defects of pleadings and some part of
admissions appearing in evidence of defendant No.2, due to
rustic illiterate persons belonging to tribal community. The
learned Appellate Court has also ignored the very vital fact
admitted by the plaintiff/respondent himself that he is not
maintaining to defendant No.1 after death of her husband
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Jaimashi because she has adopted Ghardamad. Therefore, I
find substance in the points of argument raised on behalf of
appellant that there is no sound principle of law or custom
putting any restriction on execution by wife of
Ghardamadship in token of recognition to the earlier
adoption of the Ghardamad by her husband during life time.
The plaintiff has instituted the suit only on apprehension that
he might be deprived from the property of Jaimashi and no
any valid reasons were pointed out towards legality of the
Ghardamadship.
24. In view of above discussions and reasons, I arrived at
definite conclusion that the learned Trial Court after
considering all the aspects of the case and the law applicable
to the parties decided Issue No.6 against the plaintiff and in
favour of defendants while dismissing the suit. The learned
Appellate Court has committed serious illegality by pressing
its judgment only on conjecture and surmises ignoring the
material facts which conclusively prove the Ghardamadship
of the defendant No.2 in the family of Jaimashi during his life
time and subsequently, recognized by his wife in token of
respect to her husband by executing the Ghardamadship
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(Ext.C). Therefore, the judgment and decree of reversal
passed by learned first Appellate Court is absolutely beyond
the weight of evidence adduced in the case and fit to be set
aside. Therefore, the judgment and decree passed by learned
Appellate Court is hereby set aside and judgment and decree
passed by learned Trial Court is restored. Accordingly, this
appeal is allowed on contest. Both parties shall bear their
own cost.
25. Pending I.As., if any, also stand dismissed.
26. Let a copy of this judgment along with Trial Court
record be sent back to the concerned Trial Court for
information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated: 28/08/2025
Sachin / NAFR
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