( 2026:JHHC:15271 ) 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 61 of 2013 1. Ram Rai Soren 2. Kirtal Soren 3. Lal Soren All sons of Rai Soren @ Sona Rai Manjhi 4. Sukur Soren, W/o Late Binod Manjhi 5. Dara Singh, S/o Late Bhagla Manjhi, S/o Ram Sai Manjhi All by caste Santhal, by occupation Cultivation, Resident of village Kocha, P.S. Bagbera, P.O. Bagbera, District East Singhbhum … … Defendants/Appellants/Appellants Versus 1. Smt. Duli Murmu, W/o Late Chotrai Murmu By caste Santhal, by occupation cultivation, Resident of village- Kacha, P.O. & P.S. Bagbera, District- East Singhbhum … … Plaintiffs/Respondents/Respondents 2. Sain Murmu, S/o Late Chtrai Murmu, resident of village Purihassa, P.O. & P.S. Sunder Nagar, District East Singhbhum … … Plaintiff/Proforma Respondent/Proforma Respondent --- CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Ayush Aditya, Advocate For the Respondents : --- C.A.V. on 12th February 2026 Pronounced on 15th May, 2026 1. This appeal has been filed against the judgment dated 30.01.2013 (decree dated 20.02.2013) passed by the learned District Judge-III, East Singhbhum at Jamshedpur in Title Appeal No. 34/2007, whereby the appeal has been dismissed and the judgment dated 24.04.2007 (decree dated 08.05.2007) passed by the learned Sub-Judge-VI, Jamshedpur in Title Suit No. 218 of 1994 has been confirmed. 2. The learned counsel for the appellants has submitted that the suit was decreed which was filed by the widow and daughter of the recorded ( 2026:JHHC:15271 ) 2 tenant and the 1st appeal has been dismissed, but a substantial question of law arises for consideration in this case. 3. The learned counsel submits that the plaintiffs had admitted that they belonged to the tribe called ‘Santhal’ in their plaint and they had never taken a plea that they are sufficiently hinduised and consequently they are governed by Hindu Succession Act, but the learned courts have recorded finding, on the admission of the defendants in their original written statement, wherein they had stated that the parties are governed by Mitakshara School of Hindu Law. The learned counsel has submitted that though the written statement was not amended, but an additional written statement was filed. 4. The learned counsel has submitted that the plaint was amended and additional written statement was filed and in the additional written statement, a plea was taken that the parties are governed by customary law and according to caste custom, the plaintiffs are not entitled to have a share in the suit property and they never succeeded to the interest of the recorded tenant. It has also been asserted in the additional written statement that the interest in the joint family property devolved upon the brother of the recorded tenant by way of survivorship according to their caste custom and the females are excluded from inheritance and they are only entitled for maintenance. 5. The learned counsel submits that after the substitution of the concerned deceased-defendant, a written statement was filed by legal heir where similar averment was made. 6. The learned counsel submits that since the plaintiffs did not raise a plea that they are sufficiently hinduised , therefore the parties were to be governed by customary law and the written statement of the defendants stating that they are governed by Mitakshara school of Hindu Law is of no consequence. 7. The learned counsel submits that if tribals are sufficiently hinduised then they can be governed by Mitakshara school of Hindu law and ( 2026:JHHC:15271 ) 3 inheritance can be claimed by virtue of Hindu Succession Act, but in absence of any such plea by the plaintiffs, the Hindu Succession Act could not be applied. 8. The learned counsel has placed the plaint and the written statement during the course of hearing. It has been argued that both the learned courts have returned a finding that the defendants in their written statements had taken a plea that the parties are governed by Mitakshara School of Hindu Law and they were estopped from taking a different stand. However, the learned court has taken note of the earlier written statement filed by the sole defendant of the suit, but the subsequent written statement filed by two defendants, who were subsequently added as party, has not been taken into consideration inasmuch as, there is no such admission on their behalf that the parties are governed by Mitakshara School of Hindu Law. Further, the learned trial court did not frame any issue as to whether the parties are governed by Mitakshara School of Hindu Law or by customary law, but the finding have been returned on this aspect of the matter. 9. However, from the plaint, the learned counsel for the appellants could not point out any statement that the parties are governed by customary law, rather there is only a statement that the plaintiffs are tribal women and that the plaintiffs are by caste santhals of adivasi community. 10. The Court finds that suit was filed for declaration of title and confirmation of possession and in the alternative recovery of possession, if plaintiff is found dispossessed from land. Plaintiff no. 1 is widow of Late Budhrai Manjhi and plaintiff no.2 is his daughter and they claimed to be the exclusive owner of suit property. The property originally belonged to Karu manjhi who had two sons and there was partition amongst the sons and the suit property was allocated exclusively to one son Budhrai Manjhi. The defendants are sons of the 2nd son of Karu Manjhi, namely Ramrai Manjhi. The husband of daughter (Plaintiff no. 2) also died and ( 2026:JHHC:15271 ) 4 both the plaintiffs were living on the suit property. The suit property was exclusively recorded in the name of Budhrai Manjhi in record of rights of 1964. The defendants were trying to sell the suit property which became the cause of action to file suit and it was asserted that plaintiffs are poor tribal women. 11. As per the written statement filed by the Defendant no. 1, Sona Ram Soren, plaintiff has got no cause of action and suit land was in joint possession and enjoyment of all the members of the family. Since Budhrai Majhi dies leaving behind his widow and daughter so the entire joint property devolved upon the male agnates and the plaintiffs are entitled to maintenance only and defendants are maintaining them. Plaintiffs are not in occupation and enjoyment of suit property rather it is in physical possession of defendant by way of survivorship after death of Budhrai Majhi. It was specially pleaded that parties are guided by rule of survivorship of Mitakshara School of Hindu Law, So far as entries with respect to record of right of last survey is concerned, land has been shown as separate possession of the parties for the sake of their convenience not by way of partition by metes and bounds as pleaded by the plaintiffs. Parties are still living in joint house and cultivating jointly the land. 12. The written statement was initially filed by sole defendant who was already on record who took a stand in the written statement that parties are governed by Mitakshara School of Hindu Law. However, while filing the additional written statement on account of certain amendments in the plaint, a stand was taken that parties are governed by customary law whereby females are excluded from inheritance. However, upon death of sole defendant, he was substituted and a written statement was filed on behalf of his legal heirs along with aforesaid two additional defendants, namely, Binod Majhi and Dara Singh, who took a stand that the parties are governed by customary law whereby the females are excluded from inheritance. ( 2026:JHHC:15271 ) 5 13. On the basis of pleading of either side, following issues have been framed by the Court for just decision of the case. I. Whether the plaintiff has got valid cause of action for the suit? II. Whether the suit as framed is maintainable? III. Whether the suit is bad for non-joinder of necessary parties? IV. Whether the suit is hit by the provision of specific relief act, limitation act and CNT Act? V. Whether the plaintiff is entitled for a decree of declaration that they are bona fide owner and title holder of the disputed property? VI. Whether the plaintiff is entitled for a decree of confirmation of possession and in the alternative decree for recovery of possession? VII. Whether the plaintiff is entitled to any other relief or reliefs? 14. Issue V, VI, VII were taken together and the findings were recorded by the learned trial court and the issues were decided in favour of the plaintiffs. The Court held that there was partition between Budhrai Manjhi and Ram Rai Manjhi and suit property exclusively allotted to Budhrai Manjhi after considering both oral and documentary evidence adduced by the parties. The Court further observed that Defendant no.1 in original written statement took a specific plea that parties are governed by Mitakshara School of Hindu Law and in addition written statement filed with D. No. 1 and 2 (who were subsequently added as defendants) took a U turn and pleaded that as per customary law governing the parties, females were completely excluded from inheritance and the property devolved upon branch of Ram Rai Manjhi by way of agnatic succession. The Court held that such a course was not permissible in law. So far as defendant no. 2 and 3 are concerned they did not adduce any evidence and hence their written statement was of no consequence even though they pleaded that the parties are governed by customary law of succession. The Court also considered that the witnesses of plaintiff also asserted that they ( 2026:JHHC:15271 ) 6 believe and follow Hindu religion. The defendant no. 1 was examined as D.W – 1 who asserted during evidence that the parties are governed by customary law of tribals and property will devolve through survivorship upon agnates in absence of male heirs and the plaintiffs were only entitled to maintenance. However, during cross examination he stated that in his written statement he had wrongly stated that parties are governed by Mitakshara School of Hindu Law. D.W -2 in his evidence during chief stated that the parties are governed by tribal laws and agnates would inherit the property of Budhrai. However, during his cross examination he stated that after death of Budhrai, his wife inherited the property but after the death of his wife, the property would devolve upon defendants. D.W- 3 supported the case of the defendants on the point of agnatic succession as per tribal law and D.W- 4 also supported the case of the defendants but denying his cross examination stated that he did not know as to what was written in his affidavit. 15. The Court recorded that one who relies upon the custom, he has to plead and prove the custom and also observed that if widow has left tribal custom, they are the absolute owners of their husband’s property if they are hinduised. The court also recorded that apart from inconsistent plea the defendants failed to prove the custom. 16. The 1st appellate court gave concurrent findings after considering the materials on record. 17. This court finds that so far as the plaint is concerned, it is completely silent as to whether the parties are governed by Hindu law or customary law. It only discloses that the parties belong to Santhal Tribe and claimed succession through inheritance. Merely because a person belongs to Santhal Tribe the same does not mean that the females are excluded from inheritance. The law is well settled in the case reported in (2000) 8 SCC 587 (Labishwar Manjhi versus Pran Manjhi and Others) dealing with the case of Santhal tribe, that if a Santhal tribal is sufficiently ( 2026:JHHC:15271 ) 7 hinduised, he would be governed by Hindu Succession law and in the present case the plaintiffs also led evidence that they are hinduised. 18. It has been argued by the appellants that that both the learned courts have returned a finding that the defendants in their written statements had taken a plea that the parties are governed by Mitakshara School of Hindu Law and they were estopped from taking a different stand. However, the learned court has taken note of the earlier written statement filed by the sole defendant of the suit, but the subsequent written statement filed by two defendants, who were subsequently added as party, has not been taken into consideration inasmuch as, there is no such admission on their behalf that the parties are governed by Mitakshara School of Hindu Law. Further, the learned trial court did not frame any issue as to whether the parties are governed by Mitakshara School of Hindu Law or by customary law, but the finding have been returned on this aspect of the matter. 19. The said arguments are devoid of any merits and do not call for framing any substantial question of law in this second appeal. 20. In the present case, admittedly the parties belong to santhal tribe. The plaintiff was silent as to the applicable law with regard to succession i.e. Hindu Succession Act or customary law governing the parties, but the claimant claimed succession through inheritance in spite of being females in the family of Budhrai Manjhi upon his death and the defendant no. 1 initially asserted that the parties are governed by Hindu Succession Act and subsequently took an inconsistent plea in additional written statement that the parties are governed by tribal law applicable to santhals and therefore the females are excluded from succeeding any property. 21. The learned courts have found that the defendants have also failed to prove the custom of exclusion of females from inheritance. Since the defendants were asserting applicability of customary law of agnatic succession and therefore it was for them to prove the custom and also prove that such custom was ancient consistently followed and still governed the parties. The Hon’ble Supreme Court in the case of ( 2026:JHHC:15271 ) 8 Gokulchand versus Pravin Kumari reported in (2018) 11 SCC 119 has explained the ingredients of a valid custom and has held that all that is necessary to prove is that the usage has been acted upon in practice for such a long time 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. It has been held by the Hon’ble Supreme Court in the judgment reported in (2018) 11 SCC 119 in paragraph 14 that customs when pleaded are mostly at variance with general law and they should be strictly proved and the one who 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. The burden of proof of establishing a type of custom depends upon the type and the extent of usage. 22. The law is well settled in the judgement passed by the Hon’ble Supreme Court in the case of Laxmibai (dead) through L.Rs and another versus Bhagwantbuwa (dead) through L.Rs reported in (2013) 4 SCC 97 held that a custom is an established practice at variance with the general law which is a rule in a particular family, a particular class, community or in a particular district owning to prolonged use and has obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it. It has been held that such a custom must be ancient, uniform, certain, continuous and compulsory and no custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. It has also been held that the party who relies upon custom varying the general law, must plead and prove it and the custom must be established by clear and unambiguous evidence. It has also been clearly held that a custom must be proved to be ancient, certain and reasonable. The Hon'ble Supreme Court has further held in the aforesaid judgment that the evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting and that a custom cannot be ( 2026:JHHC:15271 ) 9 extended by analogy or logical process and it cannot be established by a priori method. Thus, the aforesaid judgment clearly holds that in order to declare a custom applicable in a particular case which is at variance with the general law, the onus of its applicability is on the person who alleges the custom to be a valid custom and in order to prove a custom to be binding custom enforceable under law, it must be ancient, uniform, certain, continuous and compulsory. This Court is of the considered view that each of the aforesaid elements i.e., ancient, uniform, certain, continuous and compulsory have distinct meaning and is required to be proved by the person who relies upon a particular practice and terms it as a binding custom in law. 23. This court finds that the defendant no.1 in the present case took inconsistent view with regard to applicable law upon the parties and further failed to prove the customary law governing the parties so as to insist that as per customary law the females are excluded from inheriting the properties. Although no specific issue was framed with regards to the law which governs the parties in the matter of inheritance but the point was broadly covered by the issue no. V dealing with the title of the suit property and the evidences placed on record and the arguments of the respective parties before the learned courts clearly revealed that the core question was as to whether the plaintiffs being females (mother and daughter of the recorded tenant) were excluded from succeeding the property on the basis of customary law . The learned courts have threadbare examined the materials on record including the plaint, written statement, additional written statement, evidences, both oral and documentary and gave concurrent findings that the plaintiffs are entitled to declaration of right, title, interest and possession with respect to the suit property and entitled to confirmation of possession. The courts also held that the defendant no. 1 took inconsistent plea with respect to law applicable to the parties and failed to prove the custom of exclusion of females from inheritance and also recorded that defendant no. 2 and 3 did ( 2026:JHHC:15271 ) 10 not adduce any evidence. The learned courts have meticulously examined the case of the respective parties. No substantial question of law arises in the present case. 24. In view of the aforesaid facts and circumstances, no question of law, much less any substantial question of law, is involved in this case. 25. This appeal is accordingly dismissed. (Anubha Rawat Choudhary, J.) Dated of Pronouncement:15.05.2026 Pankaj/Binit Date of Uploading: 16.05.2026