Case Note & Summary
The case involves a second appeal by the original defendants (Bhagga Damma Bhil and Shama Bhagga Bhil) against the judgment of the District Judge, Dhule, which reversed the trial court's dismissal of the suit and decreed partition in favor of the plaintiff (Sau. Ranu w/o Raising Pawar). The plaintiff, a daughter of Gulabsingh, claimed a half share in ancestral properties left by her father, who was a member of the Bhil Scheduled Tribe. The defendants admitted the relationship but argued that the Hindu Succession Act did not apply to Scheduled Tribes and that the properties devolved by survivorship upon Bhaga (defendant no.1). They denied any custom entitling the plaintiff to a share. The trial court dismissed the suit, but the appellate court reversed, holding that the plaintiff had proved a custom among the Bhil tribe whereby daughters are entitled to a share in their father's property. The High Court, in second appeal, framed a substantial question of law regarding the proof of custom. The court examined the evidence, including oral testimony of witnesses and instances of daughters receiving shares, and concluded that the custom was sufficiently proved. The court also noted that the pleadings of illiterate parties should be liberally construed. The High Court upheld the appellate decree, confirming the plaintiff's entitlement to partition and separate possession of her half share.
Headnote
A) Customary Law - Succession - Scheduled Tribe - Custom of Daughter's Share - Hindu Succession Act, 1956 - The plaintiff, a Bhil tribe daughter, claimed half share in her father's ancestral property based on custom. The defendants contended that Hindu Succession Act did not apply to Scheduled Tribes. The court held that the custom pleaded by the plaintiff was proved by evidence of witnesses and instances, and the daughter was entitled to partition. (Paras 1-10) B) Evidence - Burden of Proof - Custom - Proof of Custom - Indian Evidence Act, 1872, Section 48 - The court held that the burden to prove custom lies on the party asserting it. The plaintiff adduced oral evidence of witnesses and instances of daughters receiving shares, which was sufficient to prove the custom. (Paras 7-9) C) Pleadings - Liberal Construction - Illiterate Parties - Code of Civil Procedure, 1908, Order 6 Rule 2 - The appellate court held that pleadings of illiterate parties should be liberally construed, and the plaintiff's pleadings were sufficient to raise the issue of custom. (Para 6)
Issue of Consideration
Whether a daughter belonging to a Scheduled Tribe is entitled to a share in ancestral property based on custom, and whether the custom pleaded by the plaintiff was proved.
Final Decision
The High Court dismissed the second appeal, confirming the decree for partition and separate possession in favor of the plaintiff.
Law Points
- Customary law
- Scheduled Tribe succession
- Hindu Succession Act inapplicability
- Burden of proof of custom
- Liberal construction of pleadings for illiterate parties
