Case Note & Summary
The appellant, Sau. Barula w/o Namdeo Kodape, filed a second appeal against the judgment and order dated 18.07.2023 passed by the learned District Judge, Chandrapur in Regular Civil Appeal No.47/2016, which had dismissed her suit for declaration, partition, and separate possession of House Property No.152 admeasuring 870 square feet situated at Mauza Rajura, Peth Ward No.3. The appellant is the daughter from the first wife of deceased Ramaji, while the respondents are the second wife and her children. The parties belong to the Gond community, a Scheduled Tribe. The appellant claimed that the suit property was ancestral and that she was entitled to a share. The respondents contended that as per Gond custom, daughters are excluded from inheritance. The Trial Court and the First Appellate Court dismissed the suit, holding that the appellant failed to prove that she was in possession and that the property was ancestral. The High Court framed a substantial question of law regarding the burden of proof of custom excluding female inheritance. The High Court held that under Section 2(2) of the Hindu Succession Act, 1956, the Act does not apply to Scheduled Tribes unless notified, so succession is governed by custom. The burden to prove such custom lies on the party asserting it, i.e., the defendants. The defendants failed to produce any evidence of custom excluding daughters. Therefore, the courts below erred in placing the burden on the plaintiff. The High Court allowed the appeal, set aside the judgments below, and decreed the suit for partition, declaring the plaintiff entitled to a share in the suit property.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - The High Court framed a substantial question of law regarding burden of proof in a suit for partition and declaration by a daughter claiming inheritance in ancestral property of her father, who belonged to the Gond Scheduled Tribe. (Para 2) B) Hindu Succession Act, 1956 - Applicability to Scheduled Tribes - Section 2(2) - The Act does not apply to members of Scheduled Tribes unless the Central Government by notification directs otherwise. Therefore, succession among Gonds is governed by custom. (Para 10) C) Customary Law - Burden of Proof - The burden lies on the party asserting a custom that excludes the general law of inheritance. In this case, the defendants claimed that as per Gond custom, daughters are excluded from inheritance. The court held that the defendants failed to discharge this burden. (Paras 11-12) D) Evidence Act, 1872 - Proof of Custom - Section 13 - Custom must be ancient, certain, reasonable, and not opposed to public policy. The defendants did not produce any evidence of such custom. (Para 12) E) Partition - Declaration of Title - The plaintiff, being the daughter of the deceased, is entitled to a share in the ancestral property in the absence of proof of custom excluding females. The suit for partition and separate possession was decreed. (Paras 13-14)
Issue of Consideration
Whether the Trial Court and Appellate Court erred by not considering that the burden was upon the respondents to show that the custom within the Gond Community excludes the right of inheritance of female members in the ancestral property of father.
Final Decision
The appeal is allowed. The judgment and order dated 18.07.2023 passed by the learned District Judge, Chandrapur in Regular Civil Appeal No.47/2016 and the judgment and decree passed by the Trial Court are set aside. The suit for declaration, partition and separate possession is decreed. The plaintiff is entitled to a share in the suit property. No order as to costs.
Law Points
- Burden of proof
- Customary law
- Female inheritance
- Scheduled Tribe
- Gond community
- Hindu Succession Act
- 1956
- Section 2(2)
- Section 8
- Section 6
- Partition
- Declaration of title
