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2025 DAILYLAW 720 (CHH)

Mangali Bai D/o Ramsingh v. Sakharam S/o Ramsingh

2025-09-09

Deepak Kumar Tiwari

body2025
JUDGMENT : DEEPAK KUMAR TIWARI, J. 1. This is a Second Appeal filed by the plaintiffs under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 30.3.2006 passed by the Additional District Judge, (FTC), Pendra Road in Civil Appeal No.123-A/02, which, in turn, arise out of the judgment and decree dated 3.10.2001 passed by the Civil Judge Class-II, Pendra Road, District Bilaspur in Civil Suit No.28-A/2000. By the impugned judgment and decree, the First Appellate Court reversed the judgment and decree passed by the trial Court. 2. The trial Court decreed the suit in favour of the plaintiffs/appellants, declaring their sole title over the suit property, holding that they alone, being the daughters of late Ramsingh, are entitled to inherit the same and the respondent/defendant has no legal right of inheritance in respect of the said property. The trial Court also held that the respondent/defendant has failed to prove a valid adoption in his favour by late Ramsingh. However, by the impugned judgment, while allowing the appeal, the Appellate Court recorded a finding that the respondent/defendant had proved the adoption and accordingly, set-aside the judgment and decree passed by the trial Court. 3. This Second Appeal was admitted for hearing on 4.9.2006 by formulating the following substantial questions of law : (A) Whether, the lower appellate court erred in reversing the findings of learned trial court that the defendant has no legal right of inheritance in the property of Late Ramsingh along with his daughters? (B) Whether, the lower appellate court was justified in holding that the defendant Sakharam is legally adopted son of Late Ramsingh Gond when the custom of adoption was neither pleaded nor proved by Sakharam in accordance with law which could have conferred legal right upon him for inheritance? 4. Necessary facts of the case are that admittedly, both the parties belong to ‘Gond’ Tribal Community. Mangli Bai and late Sukhwariya Bai are both daughters of late Ramsingh. As there was no male issue in the family, the plaintiffs’ father late Ramsingh performed Chudi Marriage with the respondent’s mother namely Phoolkunwar, D/o Mohan Singh Gond R/o Village Nagoi and brought her to Village Umarkhohi around the year 1957. After approximately 12 years of the Chudi Marriage, Ramsingh died around the year 1969 and Phoolkunwar died around the year 1984. After approximately 12 years of the Chudi Marriage, Ramsingh died around the year 1969 and Phoolkunwar died around the year 1984. From her earlier marriage with Farsu, Phoolkunwar had three children namely respondent/defendant Sakharam and his two sisters namely Shyamkunwar and Ramkunwar. Phoolkunwar brought all three children with her. It is also not in dispute that the suit property is an ancestral property of late Ramsingh, situated at Village Umarkhohi, Tehsil Pendra Road. The appellants/plaintiffs filed a civil suit seeking a declaration of title as the sole legal heirs of their father late Ramsingh and a further declaration that the defendant has no legal right or interest in the suit property and he illegally got his name entered in the revenue records. 5. The defendant/respondent in his written statement stated that his mother-Phoolkunwar performed a Chudi Marriage with late Ramsingh on the condition that he would adopt the defendant and the defendant was thereafter adopted by late Ramsingh. Phoolkunwar, mother of the defendant, had also put a condition for the marriage that late Ramsingh should maintain both of the defendant’s sisters namely Shyamkunwar and Ramkunwar and arrange their marriages as if they were his own daughters. Late Ramsingh complied with the said condition and before the Village Panch, adopted the respondent/defendant and also hosted a feast on that occasion. It has been further averred that the name of the respondent/defendant was duly mutated in the revenue record with the knowledge and consent of the plaintiffs. 6. The trial Court, on the basis of pleadings of the parties, framed as many as four issues and recorded a finding that the defendant had failed to prove that he was validly adopted in accordance with customary practices. As the defendant was unable to prove that he was the adopted son of late Ramsingh, it was held that he had no legal right of inheritance in the property of late Ramsingh and the plaintiffs, being his daughters, are the only legal heirs to the said property. Accordingly, the suit was decreed in favour of the plaintiffs. 7. The First Appellate Court, by the impugned judgment, has recorded a finding that the respondent/defendant had successfully proved that he was validly adopted by late Ramsingh and he was also entitled to an equal share along with the plaintiffs. Accordingly, the suit was decreed in favour of the plaintiffs. 7. The First Appellate Court, by the impugned judgment, has recorded a finding that the respondent/defendant had successfully proved that he was validly adopted by late Ramsingh and he was also entitled to an equal share along with the plaintiffs. It was also held that the plaintiffs had given their consent for an oral partition, pursuant to which, Sahmatipatra (Batwaranama) (Ex.D/1) was drawn and the suit property was mutated in the names of the plaintiffs and the defendant. Consequently, the judgment and decree passed by the trial Court was set-aside. 8. Learned counsel for the appellants/plaintiffs would submit that the trial Court while deciding the case in favour of the plaintiffs has assigned cogent reasons, as necessary ceremonies relating to the alleged adoption were neither pleaded nor proved. He submits that the basic question is as to whether there was a valid adoption. The custom relating to the adoption has not been properly pleaded, particularly with respect to who effected the adoption, the manner in which the adoption was performed, the point of time at which it occurred and the persons in whose presence it took place. If the parties are governed by any custom, it is necessary to specifically plead the nature of such custom. He would further submit that the ceremony of giving and taking, as prescribed under Section Section 11(vi) of the Hindu Adoption and Maintenance Act, is essential for a valid adoption. In support of his submission, learned counsel would place reliance on the matter of Kashi Nath (Dead) through LRs. Vs. Jaganath , 2003 (8) SCC 740 . Therefore, he submits that the trial Court has rightly reached to the conclusion that the respondents/defendant has failed to prove a valid adoption. He submits that undisputedly, the plaintiffs are the only daughters of late Ramsingh and defendant-Sakharam being the son from his mother’s earlier marriage, has no legal right of inheritance in the ancestral property of late Ramsingh along with the plaintiffs and therefore, the plaintiffs had been declared the sole owners of the suit property. He further submits that the well merited finding recorded by the trial Court was reversed by the Appellate Court, even though the adoption was not proved in accordance with law. He further submits that the well merited finding recorded by the trial Court was reversed by the Appellate Court, even though the adoption was not proved in accordance with law. He would lastly submit that the appeal may be allowed and the judgment and decree passed by the trial Court be restored. 9. On the other hand, learned counsel for the respondent/defendant would submit that in the written statement, it has been categorically pleaded that the respondent is the adopted son of late Ramsingh. At the time of marriage, Phoolkunwar, mother of the defendant had put a condition that her son would be adopted. Subsequently, before the Village Panch, after one or two days of the marriage, the respondent was duly adopted by late Ramsingh. He further submits that this fact was duly proved by Surit Singh (DW-3), an elderly man aged about 80 years. Ramsingh (DW-2) also deposed the fact that the defendant was adopted orally, as in the Gond Caste, it is not necessary for an adoption to be reduced to writing. Therefore, the fact of adoption was duly proved and the Appellate Court has rightly reversed the finding of the trial Court. Learned counsel for the respondent/defendant would further submit that the custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another. For such proposition, he places reliance on the matter of Saraswathi Ammal Vs. Jagadambal and another , AIR 1953 SC 201 . Alternatively, learned counsel for the respondent would submit that in case, even if this Court reached to the conclusion that the adoption has not been proved, admittedly, the mother of the respondent/defendant – Phoolkunwar is the legal wife of late Ramsingh and after death of Phoolkunwar, her children – the defendant/respondent and his two sisters would inherit her share in the suit property and therefore, the plaintiffs/appellants are not the sole owners of the suit property. He would also submit that the parties belong to the Gond Caste and therefore, as per Section 6 of the Central Provinces Laws Act, 1875, the Courts shall act according to justice, equity and good conscience and the said principle has been reiterated in the matter of Tirith Kumar and others Vs. Daduram and others , AIR 2025 SC 119 . Daduram and others , AIR 2025 SC 119 . It was further observed therein that where statute is silent and judicial intervention is required, the Courts strives to redress grievances according to what is perceived to be principles of justice, equity and good conscience. He would lastly submit that the Appellate Court has rightly reversed the findings of the trial Court. Hence, the appeal deserves to be dismissed. 10. Heard learned counsel for the parties and also perused the record with utmost circumspection. 11. So far as the question as to whether defendant Sakharam is the legally adopted son of late Ramsingh, admittedly, the parties belong to the Gond Tribe Community. As per the provision contained under Section 2(2) of the Hindu Succession Act, the said act shall not apply to the members of any Scheduled Tribes within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. 12. In the matter of Shakun Bai Wd/o Somnath Kushram Vs. Siya Bai Wd/o Somnath and others , ILR (2002) MP 300 , (pertaining to the members of the Gond community residing in the area of the erstwhile State of Madhya Pradesh, which now forms part of the State of Chhattisgarh after its reorganisation), it has been held that the Tribe ‘Gonds’ is mentioned in entry No.16 in relation to M.P. in the above order. The fact is not in dispute that ‘Gond’ tribe is a Scheduled Tribe within the meaning of Article 342 of the Constitution and so it is a Scheduled Tribe within the definition of Article 326(25) of the Constitution. Therefore, the Courts are bound to accept their customary way of life in relation to their personal lives and personal relationships pertaining to the marriage and divorce and legitimacy of children and also pertaining to succession. 13. The law is well settled by the Courts in India as to how customs have to be proved. This issue with regard to proving of the custom has come up for consideration before the Hon’ble Supreme Court in Salekh Chand Vs. Satya Gupta and others , (2008) 13 SCC 119 . The material paragraphs 21 to 27 read as under : " 21. This issue with regard to proving of the custom has come up for consideration before the Hon’ble Supreme Court in Salekh Chand Vs. Satya Gupta and others , (2008) 13 SCC 119 . The material paragraphs 21 to 27 read as under : " 21. In Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad 299 (FB)], it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. It is not disputed that even under the old Hindu law, adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of controversy whether there was such a custom, it can be said that even if there was such a custom, the same was not a valid custom." 22. It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and not by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well established law that custom cannot be enlarged by parity of reasoning. 23. Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them; but the decision would not in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the notice of the courts, the courts, may hold that the custom was introduced into law without the necessity of proof in each individual case. 24 . A judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the notice of the courts, the courts, may hold that the custom was introduced into law without the necessity of proof in each individual case. 24 . Custom is a rule which in a particular family or a particular class or community or in a particular district has from long use, obtained the force of law. Coming to the facts of the case P.W.1 did not speak any thing on the position either of a local custom or of a custom or usage by the community, P.W.2, Murari Lal claimed to be witness of the ceremony of adoption he was brother-in-law of Jagannath son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the Court. He did not speak a word either with regard to the local custom or the custom of the community. P.W.3 as observed by the lower appellate Court was only 43 years' old at the time of his deposition where as the adoption had taken place around 60 years back. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by P.W.2, Murari Lal. He himself did not speak of such a custom. The evidence of a plaintiff was thus insufficient to prove the usage or custom prevalent either in township of Hapur and around it or in the community of Vaish. 25. The evidence of D.W.3 refers only to one instance. From his evidence it cannot be inferred that Om Prakash had adopted Munna Lal who was his real sister's son. As already pointed out above, the trial court found that the evidence of D.W.3 was not so clear and unambiguous as to lead to no other conclusion except that Munna Lal was son of real sister of Om Prakash. Besides, this solitary instance of adoption of his sister's son cannot amount to long usage, which has obtained the force of law. Mulla has categorically commented that where the evidence shows that the custom was not valid in numerous instances, the custom could not be held to be proved. Besides, this solitary instance of adoption of his sister's son cannot amount to long usage, which has obtained the force of law. Mulla has categorically commented that where the evidence shows that the custom was not valid in numerous instances, the custom could not be held to be proved. A custom derives its force from the evidence from long usage having obtained the force of law. All that is necessary to prove is that usage has been acted upon in practice for such a long period with such invariability as to show that it has, by consent, been submitted so as to establish governing rules of a particular locality or community. 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 to as the established governing rule of a particular locality. 27 . A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i-am or Manual of Customary Law." 14. In view of the above settled principle of law (Salekh Chand {supra}), it is quite explicit that it is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and not by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well established law that custom cannot be enlarged by parity of reasoning. 15. Similarly, in the matter of Ratanlal Vs. Sudarabai Goverdhandas Samsuka (Dead) through LRs. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well established law that custom cannot be enlarged by parity of reasoning. 15. Similarly, in the matter of Ratanlal Vs. Sudarabai Goverdhandas Samsuka (Dead) through LRs. and others , (2018) 11 SCC 119 the Hon’ble Supreme Court has examined the issue of custom in detail. The material para 13, 14, 15, 16, 17 & 18 are relevant, which are extracted below : "13 . India has a strong tradition of respect for difference and diversity which is reflected under the Hindu family laws as it is applicable to diverse communities living from the southern tip to northern mountains, from western plains to eastern hills. Diversity in our country brings along various customs which defines what India is. Law is not oblivious of this fact and sometimes allows society to be governed by customs within the foundation of law. It is well known that a custom commands legitimacy not by an authority of law formed by the State rather from the public acceptance and acknowledgment. This Court in Thakur Gokal Chand v. Pravin Kumari, MANU/SC/0077/1952 : AIR 1952 SC 231 , has explained the ingredients of a valid custom in the following manner- "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 so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian condition. 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 to as the established governing rule of a particular locality". 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 to as the established governing rule of a particular locality". Black's Law Dictionary defines customary law as "customs that are accepted as legal requirements or obligatory rules of conduct, practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they are laws." Privy Council in The Collector of Madura v. Moottoo Ramalinga Sathupathi, 12 MIA 397 (1868), has observed that "under the Hindu System of law, clear proof of usage will outweigh the written text of law". 14. As per the settled law under Section 2(a) the Act, the following ingredients are necessary for establishing a valid custom- a. Continuity. b. Certainty. c. Long usage. d. And reasonability. As customs, when pleaded are mostly at variance with the general law, they should be strictly proved. Generally, there is a presumption that law prevails and when the claim of custom is against such general presumption, then, whoever sets up the plea of existence of any custom has to discharge the onus of proving it, with all its requisites to the satisfaction of the Court in a most clear and unambiguous manner. It should be noted that, there are many types of customs to name a few-general customs, local customs and tribal customs etc. and the burden of proof for establishing a type of custom depend 1 Bryan A. Garner, Black's Law Dictionary (10th Eds.), p. 468. on the type and the extent of usage. It must be shown that the alleged custom has the characteristics of a genuine custom viz., that it is accepted willfully as having force of law, and is not a mere practice more or less common. The acts required for the establishment of customary law ought to be plural, uniform and constant. 15. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. Custom evolves by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law. The characteristic of the great majority of customs is that they are essentially non-litigious in origin. They arise not from any conflict of rights adjusted, but from practices prompted by the convenience of society. A judicial decision recognizing a custom may be relevant, but these are not indispensable for its establishment. When a custom is to be proved by judicial notice, the relevant test would be to see if the custom has been acted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that justifies the court, which is asked to apply it, in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration. In this case at hand there was no pleading or proof which could justify that the above standards were met. 16. It would not be out of context to observe certain judicial decisions which throw some light on the issue raised in this case instant. In Rup Chand v. Jambu Prasad , MANU/PR/0050/1910 : (1910) ILR 32 247, Privy Council held that- "The custom alleged in the pleading was this: "Among the Jains Adoption is no religious ceremony, and under the law or custom there is no restriction of age or marriage among them." And that appears to be the custom found by the High Court to exist. But upon the argument before their Lordships it was strenuously contended that the evidence in the present case, limited as it is to a comparatively small number of centers of Jain population, was insufficient to establish a custom so wide as this, and that no narrower custom was either alleged or proved. In their Lordships' opinion there is great weight in these criticisms, enough to make the present case an unsatisfactory precedent if in any future instance fuller evidence regarding the alleged custom should be forthcoming". 17 . In their Lordships' opinion there is great weight in these criticisms, enough to make the present case an unsatisfactory precedent if in any future instance fuller evidence regarding the alleged custom should be forthcoming". 17 . In Sheokuarbai v. Jeoraj, MANU/PR/0062/1920 : AIR 1921 PC 77 , Privy Council observed that, among the Sitambari Jains the widow of a sonless Jain can legally adopt to him a son without any express or implied authority from her deceased husband to make an adoption, and the adopted son may at the time of his adoption be a grown-up and married man. The only ceremony to the validity of such an adoption is the giving and taking of the adopted son. 18. It is very much evident that the appellant in this case has failed to produce any evidence to prove that such practice has attained the status of general custom prevalent among the concerned community. Custom, on which the appellant is relying, is a matter of proof and cannot be based on a priori reasoning or logical and analogical deductions, as sought to be canvassed by the appellant herein. Hence the issue is answered against the appellant." 16. Reverting to the facts of the present case, it is evident from para 14&v and 14&c of the written statement filed by the respondent/defendant that a generalised pleading has been made to the effect that at the time of the marriage, his mother put a condition upon late Ramsingh that he would adopt her son Sakharam and also confer property rights upon him. Further, pursuant to the said condition, Ramsingh (deceased) adopted the respondent/defendant before the Village Panch and organised a feast as per their social customs. However, there is lack of specific pleadings regarding the mode and manner of adoption followed within their community. 17. In his cross-examination, Surit Singh (DW-3) deposed that one or two days after the marriage of late Ramsingh with Phoolkunwar, mother of the respondent, Ramsingh adopted the respondent/defendant as his son. This witness further stated that he is not aware of the details regarding Village Nagoi, where from the mother of the respondent namely Phookunwar was brought after the marriage. A similar statement is made by Ramsingh (DW-2). 18. This Court agrees with the reasoning assigned by learned trial Judge in this regard. This witness further stated that he is not aware of the details regarding Village Nagoi, where from the mother of the respondent namely Phookunwar was brought after the marriage. A similar statement is made by Ramsingh (DW-2). 18. This Court agrees with the reasoning assigned by learned trial Judge in this regard. After examining the pleadings and evidence on record, it is quite vivid that the defendant has failed to prove the mode and manner in which the alleged adoption took place. Therefore, this Court is of the considered view that the First Appellate Court erred in reversing the finding of the trial Court, which had correctly held that the defendant failed to establish that he is the legally adopted son of late Ramsingh and he has inherited property rights from him. 19. Accordingly, the substantial question of law (B) is answered in favour of the appellants/plaintiffs. 20. The material question that now arises for consideration is whether, even if Sakharam has failed to prove a valid adoption, he nonetheless has a legal right of inheritance in the property of the late Ramsingh alongwith the plaintiffs. It is not in dispute that the defendant’s mother Phoolkunwar was the legally wedded wife of late Ramsingh and after the death of late Ramsingh, she had also inherited his property rights. Her name was also duly mutated in the land records along with the plaintiffs. Though the defendant/respondent has failed to establish any inheritance right from his father, he inherited rights in the subject property through his mother after her death. Therefore, the alternate limb of the arguments advanced by learned counsel for the respondent/defendant is found by this Court to have legal force. The trial Court committed a legal error by declaring that the plaintiffs, being the daughters of late Ramsingh, are the only sole title holders of the subject property. It materially ignored the fact that Phoolkunwar, wife of late Ramsingh, also had property rights and upon her death, her children - respondent Sakharam and his two sisters Shyamkunwar and Ramkunwar, likewise acquired property rights through their mother. To deprive of their inheritance rights, even if no custom has been proved with regard to succession, is against the principles of justice, equity and good conscience. 21. To deprive of their inheritance rights, even if no custom has been proved with regard to succession, is against the principles of justice, equity and good conscience. 21. Recently, in the matter of Tirith Kumar (supra), while interpreting Section 6 of the Central Provinces Laws Act, 1875, it was held that where the statute is silent and judicial intervention is required, the Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. 22. In view of the aforesaid discussion, so far as substantial question of law (A) is concerned, this Court is of the view that the First Appellate Court has rightly set-aside the judgment and decree of the trial Court in this regard, as the appellants/plaintiffs failed to prove that they are the sole title holders of the subject property. 23. Accordingly, the substantial question of law (A) is answered in negative against the appellants/plaintiffs since the respondent/defendant also has an inheritance right in the subject property after the death of his mother. 24. Consequently, the findings recorded by the First Appellate Court stands modified to the extent indicated above. 25. The Appeal is allowed in part and a decree be drawn accordingly in the following terms: The appellants/plaintiffs are not the sole title holders of the suit property left by their father late Ramsingh. They are the joint title holders of such property along with the defendant/respondent and his sisters namely Shyamkunwar and Ramkunwar, who are also entitled for share to the extent, which ultimately passed on in their favour on account of death of their mother late Phoolkunwar, who was the wife of late Ramsingh.