Baban Vesta Dubla vs Nagin Vesta Dubla and Ors.

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908-SA-711-2024.DOC

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.711 OF 2024

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WITH

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INTERIM APPLICATION NO.14556 OF 2024

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Baban Vesta Dubla …Appellant Versus Nagin Vesta Dubla & Ors. …Respondents

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Mr. Vikram N. Walawalkar a/w. Mr. Suresh Sabrad and Mr. Amey Sawant, for the Appellant. Mr. Sachin S. Punde a/w. Mr. Suraj B. Jadhav, for the Respondents.

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CORAM: MADHAV J. JAMDAR, J. DATED : 22^nd JULY 2025

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JUDGMENT:

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Heard Mr. Walawalkar, learned Counsel appearing for the

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Appellant and Mr. Punde, learned Counsel appearing for the Respondents.

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The challenge in this Second Appeal is to the legality and validity of the Judgment and Decree dated 7^th September 2015 passed by the learned Civil Judge, Junior Division, Dahanu in Regular Civil Suit No.108 of 2012 as confirmed by the Judgment

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and Decree dated 25^th April 2023 passed by the learned District Judge-2, Palghar in Regular Civil Appeal No.93 of 2015.

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The Appellant is the original Defendant. The said Regular Civil Suit No.108 of 2012 has been filed seeking partition and separate possession. The learned Trial Court by the Judgment and Decree dated 7^th September 2015 has held that the Plaintiff Nos.1, 2, 7 and Plaintiff Nos.3 to 6 are jointly as also Defendant entitled to have 1/5 share each in the suit properties and directed that the possession as per their shares be handed over to them through the Collector or any other equivalent officer. The said Judgment and Decree dated 7^th September 2015 of the learned Trial Court has been challenged by the present Appellant i.e. original Defendant by filing said Regular Civil Appeal No.93 of 2015. The learned District Judge-2, Palghar dismissed the Appeal.

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Mr. Walawalkar, learned Counsel appearing for the Appellant submitted that the following substantial question of law arises in this Second Appeal:

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“Whether the provisions of Hindu Succession Act,

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1956 are applicable to the present case, as the parties are belonging to Hindu Dubla Scheduled Tribe?”

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Mr. Walawalkar, learned Counsel appearing for the Appellant pointed out the Presidential Notification dated 6^th September 1950 issued under the Constitution (Scheduled Tribes) Order, 1950, wherein Part-III is relating to the erstwhile Bombay State. Clause No.7 in Part III-Bombay of said Presidential Notification which is applicable to the State of Bombay, “Dubla” has been declared as Scheduled Tribe.

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Mr. Walawalkar, learned Counsel relied on the decision of the Supreme Court in the case of Tirith Kumar vs. Daduram¹ . He also relied on the decision of a learned Single Judge in the case of

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Smt. Bhuri Arjun Surpam vs. Maroti Jairam Atram² .

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On the other hand, Mr. Punde, learned Counsel appearing

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for the Respondents submitted that the contention that the Hindu

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1 (2024) SCC OnLine SC 3810

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2 (2015) SCC OnLine Bom 3173

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Succession Act is not applicable to the parties is raised for the first time at the time of hearing of the Appeal before the learned First Appellate Court. He submitted that there is no pleading with respect to this contention as well as no pleading with respect to applicability of customary law. There is no pleading that what is the nature of that customary law. He further submits that in fact, there is no evidence concerning this aspect and without any pleading and evidence, for the first time this point is raised before the learned First Appellate Court, which is impermissible. Therefore, Mr. Punde, learned Counsel submitted that there is no substance in the substantial question of law raised by the Appellant.

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Before considering the substantial question of law raised on behalf of the Appellant and the contentions raised on behalf of the Respondents, it is necessary to set out certain factual aspects.

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The genealogy of the family is given in the plaint, which is as follows:

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ikoZrh ¼e;r iRuh lu 2007½ e.kh;k cq/;k nqcGk ¼e;r lu 1988½

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lksuh mQZ lksukcsu
¼e;r eqyxh fn- 01@10@2006½
ccu panw ¼e;r 2001½ uxhu f’k.kw fyyk
(Defendant) (Plaintiff No.1) (Plaintiff No.7) (Plaintiff No.2)
fyyk ¼iRuh½
(Plaintiff No.3)
eukst foykl fejk

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(Plaintiff No.4) (Plaintiff No.5) (Plaintiff No.6)

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As far as the above genealogy is concerned, Mr. Walawalkar, learned Counsel states that there is no dispute about the genealogy. However, he submits that the Appellant/Defendant has been adopted by Maniya and therefore, he has exclusive right, title and interest with respect to the properties of Maniya. It is the submission of Mr. Walawalkar, learned Counsel that although Baban (Appellant/Defendant) is son of Soni alias Sonaben, he has been adopted by Maniya and therefore, being son of Maniya, he

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gets absolute ownership of the suit properties. However, Mr. Walawalkar, learned Counsel fairly submits that as far as adoption is concerned, the Appellant-Baban has failed to prove the adoption and there is concurrent finding of the learned Trial Court as also of the learned First Appellate Court that the Appellant has failed to prove the adoption. He therefore, submits that for the purpose of this Appeal, he has to be considered as son of Soni, who has not been adopted by Maniya. He states that his case will be on par with Chandu and Nagin being sons of Soni alias Soniben. However, he states that as far as customary rights are concerned, the daughters i.e. Shinu and Lila will not have any share in the ancestral properties and therefore, the Defendant i.e. Baban, Chandu and Nagin will get equal share i.e. 1/3 share each. He submits that as far as Shinu and Lila are concerned, they will not get any share.

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At the outset, it is required to be noted that the entire case of the Appellant i.e. Baban is on the basis of customary rights. It is required to be stated that in the plaint, the Plaintiff has come with the case that the Plaintiff and Defendants are belonging to Hindu religion and their caste is “Dubla”. There is nothing on record to

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show that they are belonging to Scheduled Tribe. In fact, the contention which is raised by the Plaintiff in paragraph No.2 inter alia that the Plaintiff and the Defendants are Hindus and they are belonging to caste “Dubla” has been denied by the

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Appellant/Defendant in the written statement.

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As far as the contention that the parties belong to Scheduled Tribe and therefore, Hindu Succession Act, 1956 is not applicable to them, the written statement is completely silent about this aspect. It is not the contention of the Appellant/Defendant in the written statement that as the parties belong to Scheduled Tribe, Hindu Succession Act, 1956 is not applicable. It is not further pleaded about the customary rights, if any.

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Perusal of the written statement and particularly, paragraph No.13 of the written statement, where factual position as per the contention of Defendant is set out, clearly shows that contention is

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raised to the effect that said deceased Maniya had no son and therefore, Maniya adopted the Appellant/Defendant-Baban and that the said Maniya recognized Baban as son and absolute owner

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of the suit properties. The relevant portion of the said paragraph No.13 is as under:

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“13----- ;k myV lR; ifjfLFkrh v’kh vkgs dh e;r e.kh;k cq?;k nqcGk ;kuk dka s.krkgh eqyxk uOgrk lcc izrhoknh ;kpk tUe >kyoj rks nks u os ”kkpk vlrkukp eZ .kh;k cq?;k nqcGk ;ku R;kls vkiy dMs vkiyk eqyxk Egs .kqu uys o vkiyk eqyxk Egs .kqu lkaHkkG dyk ijs rq vknhoklh tkrhpa vlY;kus o vKku vlY;kus s nRrd fo/kku dj.kps R;kuk y{kkr vkys ukgh ok rs o<h R;kuks let uOgrh- e.kh;k cq?;k nqcGk ;ku vkiy dqVqs ckpk okjlk iq<a s pkyok Eg.kqu eqykph Qkjp gkl gkS rh- R;kuh oknhl vkiys eqyxks Eg.kqup ok<foy- s iq<s lnjgq e.kh;k cq?;k ;kus vkiys g;krhrp vkiyh lnjgq feGdr izrhoknh uacj 2 ;kl vkiyk eqyxk Eg.kqu dk;eph fnyh o dCtk oghokV nsmu ekyd dCtsnkj cufoy s----”

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The English translation of the same is as under:

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“13. .... On the contrary, the true facts are that, the deceased Maniya Budhya Dubala did not have any son. Hence, after the Defendant was born and when he was only two years old, Maniya Budhya Dubala brought him to his house as his son and brought him up as his son. However, as he belonged to a tribal caste and was an illiterate, he neither realised that a Deed of Adoption was to be executed in that regard nor did he know about the same. Maniya Budhya Dubala was very eagar to have a son as he wanted to see that the legacy of his family continued further. Therefore, he brought up the Plaintiff as his own son itself. Later on, during his life-time itself, said Maniya Budhya perpetually gave his said property to Defendant No.2 in the capacity as his own son and by handing him over the possession and the management

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thereof, made him as the owner and the Occupant thereof ......”

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Thus, it is very clear that the case which has been put up in the written statement by the Defendant is totally different. It is the case of the Appellant/Defendant-Baban that as Maniya i.e. Grandfather has adopted him and recognized him as absolute owner of the suit properties, the Plaintiffs have no right, title and interest in the suit properties.

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Further contentions raised in paragraph No.14 of the written statement are also consistent with the contention that said Maniya recognized the Appellant as the absolute owner and therefore, the Respondents have no right, title and interest in the suit properties. The relevant portion of said paragraph No.14 is as under:

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“14- R;kizek.ks izrhoknh xyh lqekjs s 40 o”kkiklqu lnjgqZ feGdrhph n[ks Hkky ekyd dCtnkjs Eg.kqu djhr vkgs- izrhoknh ;kl e;r e.kh;k o e;r ikorh ;kZ uh eqyxk Ega .kqup BoY;kps los oknhuk ekfgrh vkgZ s- o;kps 2 o”kkZiklqu izrhoknh e;r e.kh;k o e;r ikoZrhdMs jgkr vkyk vkgs- izrhoknhus e;r e.kh;k o e;r ikoZrh ;kaps iq.kZ g;krhr R;kaph ns[kjs[k lkjlkaHkkG vkiys vkbZoMhyku izek.ksp ?ksryh rlsp ej.kkuarj fnol dk;sZ dsyh- ,o<p uOgs rj izrhoknhps s uko n[khy e;r es .kh;kps j’kudkMs e/;Z gks rs es .kh;kp e`R;q us rj lnjgq ja ’kudkMs izrhoknhpZ s uko djs .kr vkys o R;ke/;s e;r ikos rhckbZ pZ uko ns [khy ‘kkehys vkg- e;r es .kh;k o e;r ikorh ckbZ ;kZ uh R;ka pa g;krhr lnjgqs feGdr izrhoknhl ekyd dCtnkj Egs .kqu nmu Vkdyh gks rhs - e;r

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ikoZrh nqcGk fgus 1990 lkyh ;k izrhoknhl lnjgq tehuhr izrhoknhl fot iqjoBk ?ks.kslkBh izrhKki= d:u fnys gksrs----- ”

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The English translation of the same is as under:

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“14. Accordingly, since last 40 years, the Defendant has been maintaining the said property in the capacity as the owner and Occupant thereof. All the Plaintiffs know that the deceased Maniya and deceased Parvati had brought up the Defendant as their own son. The Defendant has been staying with deceased Maniya and deceased Parvati since he was 2 years old. The defendant looked after and took care of deceased Maniya and deceased Parvati during their entire life-time, like his own parents and has performed even their rites after their death. Not only this, but even the name of the Defendant was entered in the Ration Card issued to deceased Maniya. After the death of Maniya, the said Ration Card was transferred to the name of the Defendant and the name of the deceased Parvatibai was also mentioned therein. The deceased Maniya and the deceased Parvatibai, during their life-time itself, had transferred the said property to the name of the defendant in the capacity as owner and also the Occupant thereof. In the year 1990, the deceased Parvati Dubala had executed an affidavit in favour of the Defendant for enabling him to take an electricity connection on the said land......”

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Thus, it is clear that at no point of time the Defendant has

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not raised the contention that as the parties are belonging to

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Scheduled Tribe, the Hindu Succession Act, 1956 is not applicable and therefor,e the daughters will have no right, title and interest as

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per the customary rights and only right, title and interest is to the sons i.e. Baban, Chandu and Nagin.

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In fact, the entire case of the Appellant/Defendant raised in the written statement is that the said Appellant/Defendant- Baban was adopted by Maniya and said Maniya has recognized the Appellant as owner and therefore, the Appellant is the absolute owner of the suit properties. Mr. Walawalkar, learned Counsel appearing for the Appellant fairly submitted that the concurrent finding is recorded by both the Courts on the basis of the evidence on record that the Appellant/Defendant-Baban has failed to prove adoption by Maniya and therefore, he is not in a position to contend that Baban is the adopted son of said Maniya and recognized him as absolute owner of the suit properties.

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Perusal of the written statement and the evidence on record

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clearly shows that there is great substance in the contention of Mr. Punde, learned Counsel appearing for the Respondents that it is never pleaded and proved that the parties are not governed by the provisions of the Hindu Succession Act, 1956 and that the parties are belonging to Scheduled Tribe and that there is customary right

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by which, only sons will get the share in the immovable properties. It is very clear that after the Appellant/Defendant has realized that he is not able to prove the case which is raised in the written statement about the alleged adoption and recognizing him as the absolute owner by said Maniya, the contention is raised that the Hindu Succession Act is not applicable and as per the customary law, it is only sons who get the share and the same is raised for the first time before the learned First Appellate Court without any pleading and the evidence to that effect.

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In view of the above position, it is necessary to set out certain findings recorded by the learned First Appellate Court. At this stage, it is required to be noted that admittedly, this point has not been raised before the learned Trial Court. The learned First Appellate Court has held as follows:

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“24….The plaintiffs claim their rights in the suit property, they being the natural legal heirs of Maniya, Parvatibai and Soni. Their relationship with them is undisputed. The defendant is their real elder brother. However, he has raised plea of adoption which is not proved by him.

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25….Under such circumstances, the legal point raised by the Ld. Advocate for the defendant about

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non-applicability of Hindu Succession Act, and that the Plaintiffs are excluded from inheritance etc. are required to be tested on the touch stone of the law of evidence envisaged in Sections 101 to 103 of the Evidence Act. The plaintiffs were not required to plead and prove that they are not excluded from the inheritance. The burden to prove that customary law excludes the females from inheritance was heavily lying upon the defendant. There is some evidence that the rights and shares of the plaintiffs in the suit property were recognized by the defendant by allowing the plaintiff no.2 to construct a house and also by not challenging the aforesaid mutation entries .

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The Honourable Supreme Court in the case of Mohammad Baqar vs. Naim-un-nissa Bibi reported in A.I.R. 1956 Supreme Court 541, had been pleased to hold that the burden of proving a custom in derogation of general law, being heavily on the party who set it up, it was incumbent on the appellants to prove by clear and cogent evidence that there was such a custom as was pleaded by them. Adverting to the facts of this case, though there is no specific pleading, that the parties are governed by customs of Dubla tribal community, it was so argued on behalf of the defendant and therefore, in absence of any evidence to that effect, it can well be concluded that the defendant failed to prove that the parties were governed by any such customary law of tribal for the purpose of succession .

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Under such circumstances, it must be held that the plaintiffs were under no burden to plead and prove that as per the law applicable to Dubla community, females are not excluded from inheritance. The burden to prove their exclusion was on the defendant who set up such defence, as held by the Honourable High Court of Bombay in

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the case of Babulal Bapurao Kodape vs. Reshmabai Narayanrao Kaurati (Second appeal no.388 of 2016, decided on 04/01/2019).”

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(Emphasis added)

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Thus, in view of the above position, where it has been held by the

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learned First Appellate Court that there is no pleading about customary rights and the same has also been not proved, it is required to be noted Section 101 of the Indian Evidence Act, 1872, which clearly provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

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In this particular case what has been put up by the Defendant in the written statement is totally different. It is his contention that deceased Maniya i.e. grandfather has adopted him and recognized him as absolute owner and therefore, others have no right, title and interest. However, after realizing that he is not able to prove the said case of adoption, thereafter, the Appellant/Defendant-Baban has changed his stand and raised the

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contention before the learned First Appellate Court at the time of hearing of the Appeal regarding non-applicability of the Hindu Succession Act, 1956 and regarding customary law. It is also significant to note that the other sons i.e. Nagin and heirs and legal representatives of son-Chandu, although could have made claim for larger share, if they have made similar submissions have not supported the contention raised by the Appellant.

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In view of the above position on record, the Judgment in the case of Tirith Kumar (supra) is not applicable to the present case. It has not been established in the present case that as per the customary law, which are applicable to the parties, the daughters are excluded from getting share in the properties. Even the decision in the case of Smt. Bhuri Arjun Surpam (supra) on which Mr. Walawalkar, learned Counsel appearing for the Appellant has relied, will also have no application to the present case. The relevant portion is in paragraph No.16, which reads as under:

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“16. Thus, from the aforesaid, it is clear that unless the custom on the basis of which a party claims any right is sufficiently pleaded and proved, the same cannot be a basis for any legal right. In the present case, the parties have pleaded diverse customs to substantiate their rights. There is, however, no

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evidence on record to record a finding as regards the custom prevalent amongst the members of Kolam community for the purposes of adjudicating the right of inheritance . The substantial question of law as framed cannot be specifically answered in absence of such evidence regarding custom. Considering the nature of right claimed and the defence raised, in my view, interests of justice would be served if the proceedings are remanded to the trial Court by granting opportunity to the parties to amend their pleadings and thereafter allow them to lead evidence on the aspect of the custom being followed in the matter of succession/inheritance .”

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(Emphasis added)

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Thus, in the said case of Smt. Bhuri Arjun Surpam (supra) what has been held by a learned Single Judge is that unless the custom on the basis of which a party claims any right is sufficiently pleaded and proved, the same cannot be a basis for any legal right. In the said case, the parties have pleaded diverse customs to substantiate their rights. There is, however, no evidence on record to record a finding as regards the custom prevalent amongst the members of Kolam community for the purposes of adjudicating the right of inheritance and therefore, the learned Single Judge has remanded back the matter to the learned Trial Court by giving opportunity to lead further evidence, as both the parties were claiming diverse custom to substantiate their rights.

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Thus, the decision in the case of Smt. Bhuri Arjun Surpam (supra) will have no application to the present case. As discussed herein above, extensively the case put up in the written statement is that the Appellant/Defendant -Baban has absolute ownership right in view of the contention raised that he has been adopted by Maniya and said Maniya has recognized him as the absolute owner. The Defendant changed his case at the stage of hearing of the Appeal before First Appellate Court when he realized that he is not able to prove the said adoption. Therefore, the Judgment on which, Mr. Walawalkar, learned Counsel appearing for the Appellant has relied, will have no application to this case.

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