Case Note & Summary
The dispute concerned succession to the estate of Ramdhan Singh, a Bhumihar Brahmin of village Barhiya in Bihar, who died in 1872 leaving two widows, Manrup Kumari and Pari Kumari, and about 1700 bighas of land. Manrup Kumari died in 1923 and Pari Kumari in 1933. Shortly before Pari Kumari's death, her brother Sunder Singh obtained a deed of release in favour of Gaya Singh and Falgu Singh, alleged sons of Ramdhan Singh's daughter. This led to civil and criminal proceedings. The near reversioners of Ramdhan Singh filed five suits in 1934-35 for possession. In 1936, the present plaintiffs (distant reversioners) filed a suit claiming to be nearest reversioners and also pleading a family custom; that suit failed. Subsequently, the present suit was filed by the distant reversioners, claiming succession based on a special family custom applicable to the family of Choudhry Mohkam Singh, as under ordinary Hindu Law they would not be entitled being distantly related. The trial court held that 49 out of 52 instances of custom were proved and decreed the suit. On appeal, the Patna High Court reversed, holding that none of the instances were proved and the custom was not established. The plaintiffs appealed to the Supreme Court. The appellants contended that the High Court erred in rejecting the custom and that the respondents' appeal to the High Court should have been dismissed because one plaintiff was not impleaded as respondent in two of the three appeals. The respondents raised a preliminary objection that the appeal to the Supreme Court had abated because the daughter of a deceased appellant was not brought on record as a legal representative. The Supreme Court dismissed the appeals. On the issue of custom, the court held that evidence cannot travel beyond pleadings; only three instances from the family of Mohkam Singh could be considered, and those were not proved. The court emphasised that a special family custom must be proved by showing long and invariable usage, with the initial onus on the plaintiffs. Documentary evidence was more important than oral evidence, and the documentary evidence showed that the appellants had previously claimed as near reversioners and had not consistently relied on the custom; they had also not testified. Therefore, the custom was not established. On abatement, the court held that the principle of representation of estate applied; since the widow and son of the deceased appellant were already on record, and no fraud or collusion was alleged, the appeal did not abate despite the daughter not being impleaded. Regarding the non-impleadment of one plaintiff as respondent in two appeals, the court held that the decree was a combination of separate decrees for each plaintiff, and failure to implead one did not abate the entire appeal. Order 41 Rule 33 CPC enabled the High Court to give relief to all appellants, especially since the omission was due to oversight. The appeals were dismissed, affirming the High Court's judgment.
Headnote
A) Hindu Law - Succession - Special Family Custom - Proof of Custom - Hindu Law (uncodified) - The plaintiffs claimed succession to the estate of Ramdhan Singh based on a special custom in the family of Choudhry Mohkam Singh. The court held that evidence cannot travel beyond pleadings, and only three instances from the family of M could be considered; those three instances were not proved. The court required proof that the usage had been acted upon for a long period with invariability, and the initial onus lay on the plaintiffs. Documentary evidence showing the plaintiffs' prior inconsistent claims as near reversioners prevailed, and the custom was not established. Held that the High Court was correct in holding that the custom was not proved (Paras Not mentioned). B) Civil Procedure - Abatement - Order 22 CPC - Non-impleadment of one legal representative - Code of Civil Procedure, 1908, Order 22 - The preliminary objection that the appeal to the Supreme Court abated because the daughter of a deceased appellant was not brought on record was rejected. The court applied the principle of representation of estate, holding that as long as one legal representative is on record and there is no fraud or collusion, the appeal does not abate. Held that the appeal had not abated (Paras Not mentioned). C) Civil Procedure - Appeals - Order 41 Rules 4 and 33 CPC - Effect of non-impleadment of one plaintiff as respondent - Code of Civil Procedure, 1908, Order 41 Rules 4 and 33 - Where only some plaintiffs were impleaded as respondents in some of the appeals, the court held that the decree is in substance a combination of several decrees, and failure to implead one plaintiff does not abate the entire appeal. Order 41 Rule 33 CPC enables the appellate court to give relief to all appellants, especially where the omission was due to oversight. Held that the High Court was correct in granting relief to all appellants in the third appeal (Paras Not mentioned). D) Hindu Law - Succession - Reversioners - Separate Shares - Hindu Law - Each reversioner is entitled to his own specific share, and a suit or appeal may abate as to one plaintiff but not as to others. The decree in favour of multiple plaintiffs is a combination of separate decrees, so non-impleadment of one plaintiff does not affect the decrees of the others. Held that the decree can be reversed in part without affecting non-impleaded parties (Paras Not mentioned).
Issue of Consideration
Whether the special family custom pleaded by the plaintiffs was proved; whether the High Court was correct in allowing the defendants' appeal despite non-impleadment of one plaintiff as respondent in two of the three appeals; whether the appeal to the Supreme Court abated due to non-impleadment of a daughter as legal representative of a deceased appellant
Final Decision
The Supreme Court dismissed the appeals, affirming the Patna High Court's judgment. It held that the special family custom was not proved because evidence could not travel beyond pleadings and the three relevant instances were not established. The preliminary objection of abatement was rejected on the principle of representation of estate, as one legal representative was on record and no fraud was shown. The High Court's use of Order 41 Rule 33 CPC to grant relief to all appellants was upheld.
Law Points
- Proof of special family custom requires long and invariable usage with common consent
- initial onus on plaintiffs
- evidence cannot travel beyond pleadings
- documentary evidence more important than oral evidence
- principle of representation of estate in abatement matters
- decree in favour of multiple plaintiffs is a combination of separate decrees
- Order 41 Rule 33 CPC enables appellate court to grant relief to non-appealing parties when appeals were filed but one party omitted
