Ismail Hansda And Ors. Vs Mathias Murmu And Ors.

1. This second appeal has been filed by the defendants against judgment dated 18.03.2016 (decree signed on 02.04.2016) passed by the learned District & Additional Sessions Judge-III-Cum-Special Judge, Vigilance, Dumka in Title Appeal No. 26 of 2012 whereby the appeal was allowed and the judgment dated 13.09.2012 (decree signed on 25.09.2012) passed by learned Senior Civil Judge-III, Dumka in Title Suit No. 11 of 2006 has been set aside.

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2. The learned trial court had dismissed the suit and the learned 1^st appellate court had allowed the appeal and declared the right, title and interest of the plaintiffs over the suit property and also declared that in the event the plaintiffs are found dispossessed, they may recover the possession of the suit property by the process of court.

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3. The suit was filed for declaration of right, title and interest of the plaintiffs and for recovery of possession of the suit properties and also for declaration that the entry of Khata No. 10 in the present survey in the names of Johan Hansda, Yakub Hansda and Pitar Hansda, all sons of Galu Hansda is forged, fabricated, illegal, null and void and inoperative in law.

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4. This appeal was argued before this Court on various dates. The case was admitted vide order dated 01.11.2018 by framing one substantial question of law and on 06.05.2025 additional substantial question of law was framed. On 17.06.2025, it was submitted by the learned counsel for the appellants that substantial question of law as framed vide order dated 01.11.2018 may not fall for consideration and the learned counsel advanced arguments with regard to the substantial question of law framed vide order dated 06.05.2025. Both the parties have advanced their arguments only with regards to the substantial question of law framed vide order dated 06.05.2025 which is as under:

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“Whether alleged custom amongst Santhals debarring females from their right of inheritance over the land left by the ancestors satisfies the test of binding custom as has been laid down in the case of Laxmibai (dead) through LRs. Vs. Bhagwantbuwa (dead) through LRs. Reported in (2013) 4 SCC 97. ”

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Arguments of the appellants (defendants).

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5. It is submitted that in the written statement the defendants had taken a specific stand in paragraph 9 that as per paragraph 46 of the Gantzer’s Settlement Report, the law not allowing females to inherit under Santhal Tribal, was changing owing to the force of public opinion and even during the time of Gantzer’s Survey, the daughters who were not married in ‘gharjamai’ form, inherited paternal properties. The learned counsel submitted that the learned 1^st appellate court in paragraph 12 has recorded that as per Gantzer’s Report there are some gradual changes in such Santhal custom, but confined the discussions only to the extent as to how a Santhal daughter can be put in ‘gharjamai’ marriage and thereby, how daughter becomes entitled to inherit the property of her Santhal father. It is submitted that unless the alleged custom of exclusion of even sole daughter of a son-less Santhal father from inheriting his property under all circumstances is proved in terms of the judgement passed in the case of Laxmibai (dead) through LRs. Vs. Bhagwantbuwa (dead) through LRs. (supra), the daughter Joba Murmu and hence the defendants, who are her descendants, cannot be denied inheritance of property of recorded tenant, Harma Murmu by resorting to customary law amongst Santhals.

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6. While advancing arguments with respect to the aforesaid substantial question of law, it was submitted by the learned counsel for the appellants that the law regarding customary law has been settled vide paragraph 12 to 14 of the said judgement of Laxmibai (supra) . He submits that the custom is required to be proved and such custom must be ancient, uniform, certain, continuous and compulsory . It was submitted that the basic ingredients of a binding custom have not been proved in the present case and the learned 1^st

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appellate court has completely given a go by to this aspect of the matter.

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7. The learned counsel for the appellants submitted that under normal circumstances, the custom, in order to be made enforceable through the process of law, is required to be proved to be ancient, uniform, certain, continuous and compulsory . He submitted that unless each of the element is proved by the party, who is relying upon the custom, the alleged custom cannot be given effect to through the process of law.

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8. The learned counsel submitted that in the plaint, the plaintiffs had pleaded custom of disentitling daughters from inheriting properties under the customary law and it was their specific case that a daughter would inherit only through ‘gharjamai’ form of marriage. However, in the written statement, the defendants had asserted that there was ‘gharjamai’ form of marriage and further they had also asserted that the daughter would otherwise also be entitled for inheritance under the general law. The learned counsel had relied upon the Gantzer’s Settlement Report which has been relied upon by both the learned courts, and submitted that the Gantzer’s Settlement Report itself indicates that although there was an ancient custom amongst Santhals excluding daughters from inheriting the property, but at the same time, it was found that such a custom was neither uniform nor certain nor continuous nor compulsory. The learned counsel for the appellants had also submitted that in various judgements, Gantzer’s Report has been considered but the Gantzer’s Report is to be read as a whole. The learned counsel for the appellants had referred to the following judgements: -

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(i) S.A. No.127 of 2014 (Prabha Minz Vs. Martha Ekka and Ors.)

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(ii) 2003 SCC Online Jhar 432 (Dhani Majhi and Anr. Vs. Ranga Majhi and Ors.)

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(iii) (1996) 5 SCC 125 (Madhu Kishwar and Ors. Vs. State of Bihar and Ors.)

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9. By referring to the judgement passed in the case of Prabha Minz (supra) , the learned counsel had submitted that the substantial question of law framed in the said case was directly related to inheritance by female heirs under customary law and he submitted that the said case was related to the tribals of “Oraon Caste” but while answering the substantial question of law, this Court has taken into consideration the manner in which the custom is required to be established for enforcing as law. While answering the question of law, the inheritance under the “Santhal” as well as “Oraon” have been considered and book “Oraon of Chhota Nagpur” by Sri S.C. Roy has been referred with respect to Oraon tribes and so far as Santhal tribes are concerned, the relevant report is the Gantzer’s report has been considered.

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10. The learned counsel has submitted that the inconsistency in connection with the denial of right of inheritance to daughters in Santhal tribe has been recorded as back as in Gantzer’s report and even the court has taken into consideration that there is inconsistency even amongst the different judgments on the point of inheritance by daughters.

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11. The learned counsel submitted that the test to establish custom capable of being enforced as law was heavy on the plaintiffs who denied inheritance to daughter on the ground of customary law and the basic ingredient to establish custom in terms of the judgement passed by the Hon’ble Supreme Court reported in (2013) 4 SCC 97 (supra) has not been established.

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12. The learned counsel has submitted that as per the plaint, the parties are Santhal Christian and governed by Santhal law of inheritance in connection with inheritance of women with respect to the properties. He submits that since in the present case, the inheritance by sole daughter is under consideration, it is not relevant to examine the consequences of the fact that the plaintiff claimed that they were Christians by religion.

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13. The learned counsel has submitted that the general custom debarring inheritance by daughters belonging to Santhal tribe, having

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not been proved as per law, the substantial question of law is fit to be answered in favour of the appellants. The learned counsel has also submitted that both the courts have primarily referred to the Gantzer’s report which was relied upon by both the parties, but the reference/reliance is selective in nature.

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14. The learned counsel has also submitted that the learned 1^st appellate court while considering the matter on the point of inheritance has confined the case of the appellants only to the point as to whether the daughter was married in ‘‘gharjamai’’ form. The learned counsel has submitted that in the written statement, both the pleas were taken by the appellants, that is, in absence of a son, the daughter would also inherit irrespective of marriage in ‘‘gharjamai’’ form.

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15. By referring to the judgement passed by this Court in the case of Dhani Majhi (supra) , the learned counsel has submitted that the facts therein were somewhat similar and in the said case, the trial court as well as the 1^st appellate court held that the plaintiffs had failed to prove the custom of a married daughter being excluded from inheritance. He submitted that it has been held that the burden was on the plaintiffs to establish that there was custom amongst the tribal in question of excluding a married daughter from inheritance. He submitted that in the said case, the concerned tribe was Santhal and in the present case also Santhal tribe is involved.

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16. With respect to the judgement passed by the Hon’ble Supreme Court in the case of Madhu Kishwar (supra), the learned counsel has submitted that the provision of Sections 7 and 8 of Chhota Nagpur Tenancy Act was directly under challenge being ultra-vires to the Constitution of India and a plea was raised to hold that the customary law excluding female from inheritance was violative of the fundamental rights but such a plea was negated by the court. The learned counsel has further referred to the body of the judgement to submit that it has been clearly observed therein that each case has to be considered on its own fact and has also been observed that the full

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facts were not placed in the writ petition directly filed before the Hon’ble Supreme Court.

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17. The learned counsel submits that in order to claim exclusion from applicability of general law, the onus was on the plaintiffs to prove such an exclusion, which the plaintiffs in the present case have failed to prove, and therefore this appeal be allowed by holding that the daughter would inherit the property under General Law.

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18. The learned counsel submitted that the Gantzer’s Report itself reveal that there was inconsistency with respect to exclusion of daughters from inheritance. The learned counsel submits that this aspect of the matter with respect to Gantzer’s Report has not been taken into consideration by the learned courts.

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Arguments of the respondents

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19. Learned counsel for the respondents submitted that so far as judgment passed in the case of Laxmibai (supra) is concerned, the same was primarily relating to the point of adoption amongst the Hindus. He had further referred to paragraphs 3, 7 and 8 of the plaint and had made reference to paragraph 9 of the written statement to submit that it stood admitted from the side of the defendants that as per Customary Law of Santhal, the female was not entitled to inherit the paternal property except when she gets married in ‘gharjamai’ form. He also submitted that the defendants specifically asserted in the written statement that the daughter had undergone ‘gharjamai’ form of marriage to claim inheritance, but they miserably failed to prove such a case and the findings have attained finality as no substantial question of law in connection with ‘‘gharjamai’’ form of marriage has been framed in the present case.

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20. The case of the defendants throughout was that they had inherited the property as Joba Murmu had undertaken ‘gharjamai’ form of marriage and such claim was totally rejected. He also submitted that additional plea was also taken regarding adoption of Galu Hansda to justify insertion of his name in revisional record of right, but the plea of adoption was also rejected.

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21. The learned counsel submitted that it was never the case of the defendants that there is no such custom which debars daughters from inheriting property with respect to property belonging to Santhal tribe. He submitted that under such circumstances, it stood admitted that parties are governed by customary law which excludes inheritance by daughter. He submitted that in order to claim inheritance, the defendants claimed that since Joba Murmu had undertaken ‘‘gharjamai’’ form of marriage, she was entitled to inheritance and further plea was taken with respect to adoption, but both the pleas were rejected by the learned courts and no such substantial question of law has been framed in this case with respect to aforesaid two findings.

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22. The learned counsel for the respondents submitted that the onus was heavy upon the defendants to prove that there was a shift in following the custom and this onus has not been discharged by the defendants and in such a view of the matter, the substantial question of law, as framed, when seen in the light of the facts and circumstances of the case, is fit to be answered in favour of the respondents. The learned counsel for the respondents also referred to the following judgements: -

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(i) AIR 2009 Jharkhand 23 (Narayan Soren & Ors. Vs. Ranjan Murmu)

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(ii) S.A. 127 of 2014 (Prabha Minz Vs. Martha Ekka and Ors.) Paragraphs 44 and 45

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(iii) 2018 SCC ONLINE JHAR 1903 (Haradhan Murmu and Ors. Vs. State of Jharkhand and Ors.)

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(iv) (1996) 5 SCC 125 (Madhu Kishwar and Ors. Vs. State of Bihar and Ors.)

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(v) Karan Murmu v. Commissioner Santhai Pargana at Dumka, 2004 SCC OnLine Jhar 456

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(vi) 2003 (3) JLJR 429 (Ishwar Tuddu and Anr. Vs. Mattu Murmu and Ors.)

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(vii) Kamla Neti v. Special Land Acquisition Officer 2022 SCC OnLine SC 1694

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23. The learned counsel for the respondents referred to the judgement reported in AIR 2009 Jharkhand 23 (Narayan Soren & Ors. Vs. Ranjan Murmu) which relates to the custom relating to adoption, but the custom of adoption having not been proved, the relief was appropriately granted. He submitted that in the present case, the custom of debarring daughter from inheritance is an admitted fact.

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24. He referred to the judgment passed in S.A. 127 of 2014 (Prabha Minz Vs. Martha Ekka and Ors.) paragraphs 44 and 45 to submit that the court has again observed that in every case, the claim of title is to be decided on the pleading and the proof of customary law regarding prevailing custom and accordingly every case has to be decided on its own facts.

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25. The learned counsel had then referred to the judgment in the case of Haradhan Murmu and Ors. Vs. State of Jharkhand and Ors. reported in 2018 SCC ONLINE JHAR 1903 to submit that in the said case also, this Court has taken a view that necessary study is required to be conducted to find out the shift in custom.

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26. He had then referred to the judgement passed by the Hon'ble Supreme Court in the case of Madhu Kishwar (supra) and referred to the majority view of the Hon'ble Supreme Court whereby the Hon'ble Supreme Court ultimately refused to strike down the provisions of Sections 7 and 8 of the Chhota Nagpur Act which was alleged to be violative of Article 14 of the Constitution of India.

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27. He had further referred to the judgement in the case of Karan Murmu v. Commissioner Santhai Pargana at Dumka , 2004 SCC OnLine Jhar 456 paragraph 8 to submit that the customary law of Santhal has been recognized and it has been held that a widow cannot create a ‘gharjamai’.

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28. The learned counsel for the respondents referred to the judgment reported in 2003 (3) JLJR 429 (Ishwar Tuddu and Anr. Vs. Mattu Murmu and Ors.) and has submitted that in the said case also, it has been held that daughter cannot succeed over a property unless she has undertaken ‘gharjamai’ form of marriage.

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29. Lastly, the learned counsel for the respondents referred to the judgement passed by the Hon’ble Supreme Court reported in Kamla Neti v. Special Land Acquisition Officer 2022 SCC OnLine SC 1694 and has referred to paragraph 17 and 18 to submit that the matter arises out of claim of compensation under Land Acquisition Act and the daughter was deprived of the share but the Hon’ble Supreme Court refused to interfere and gave a direction to the Central Government to consider it just and necessary to withdraw the exemptions provided under the Hindu Succession Act.

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30. The learned counsel for the respondents had also submitted that considering the discussions made by the learned 1^st appellate court, the impugned judgement does not call for any interference.

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Rejoinder arguments of the appellants.

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31. The learned counsel for the appellants, in response, submitted that the Gantzer’s Report itself revealed shift in custom and both the parties had relied upon the Gantzer’s report. He submitted that accordingly the onus was on the plaintiffs to prove that the ancient custom of depriving daughters from inheritance of property of her father was uniform, certain, continuous and compulsory . He submitted that merely by stating that the custom was ancient was not sufficient and on the face of the Gantzer’s report in order to enforce the custom as claimed by the plaintiffs, the other elements to make it an enforceable law was also required to be proved. This exercise having not been undertaken by the plaintiffs, the binding custom as per law was not proved, and therefore, the substantial question of law is fit to be answered in favour of the appellants.

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32. The learned counsel for the appellants referred to paragraph 46 of the judgement passed by the Hon’ble Supreme Court in the case of Madhu Kishwar (supra) to submit that the view expressed in paragraph 46 has been concurred by all the judges and this concurrence is apparent from paragraph 5 of the judgement. While referring to paragraph 46, he submitted that the Hon'ble Supreme Court had taken note of the fact that the custom amongst schedule

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tribe vary from tribe to tribe and religion to religion, based upon established practice prevailing in the respective regions and amongst particular tribes and therefore, it would be difficult to decide without acceptable material with respect to each tribe as to whether a customary succession is valid, certain, ancient and consistent and whether it has acquired the status of law. He also submitted that such indication has also been given in the Gantzer’s Report. In view of the aforesaid findings, the Hon'ble Supreme Court refused to give a general declaration with respect to the validity of the custom which was subject matter of consideration before the Hon'ble Supreme Court and each case was required to be considered with respect to the facts and circumstances of each case and therefore each element of binding custom, that is, uniform, certain, continuous and compulsory was required to be proved.

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The trial court.

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33. For the purposes of answering the substantial question of law, the relevant facts would be that the case of the plaintiffs was that both the parties belong to Santhal Christians and governed by Santhal Customary Law in the matter of inheritance and marriage and accordingly a Santhal Christian daughter married in ordinary way is not entitled to inherit her father’s property. Rather, if such father died having no son, his property will pass on to his agnates. Further case of the plaintiffs was that the plaintiffs are the descendants of Ticket Murmu and the defendants are the descendants of Joba Murmu [sole daughter of Harma Murmu] and upon death of Harma Murmu, the property would devolve upon the agnates represented by the plaintiffs and not to the daughter of Harma Murmu as she was married in ordinary form of marriage and was living in her matrimonial home and her marriage was not performed in ‘gharjamai’ form so as to entitle her and her husband to inherit the properties of her father Harma Murmu. Joba Murmu and her husband both died leaving behind a son, namely, Galu Hansda, who also died leaving behind his three sons Johan Hansda, Yakub Hansda and Peter Hansda and none

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of them ever inherited any property of Harma Murmu through their mother and never remained in possession over the suit lands and thus the defendants are rank outsiders. The cause of action arose, when in the present settlement operation, defendant 1^st party got their name wrongly recorded and, on such basis, in the year 2003, sons of Galu Hansda forcibly entered into the house of Harma Murmu and forcibly dispossessed the plaintiffs from the suit land sometimes in June, 2003.

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Case of the defendant Nos. 1 to 5

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34. The defendant Nos 1 to 5 appeared and filed their joint written statement and denied the claims and allegations made in the plaint. The case of these defendants was that the defendants and their uncle and grandfather were residing at village Mangrudih and these defendants were born at Mangrudih and it was false to say that they were residing in another village.

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35. It was their further case that Joba Murmu daughter of Harma Murmu was married in ‘gharjamai’ form of marriage and inherited the property of Harma Murmu, who died leaving his heir Joba Murmu and her husband Kanhu Hansda. Joba Murmu had a son, namely, Galu Hansda who after the death of Joba Murmu possessed the said property till his death in the year 1951 and thereafter his three sons Johan Hansda, Yakub Hansda and Peter Hansda inherited the property and after their death Ismile Hansda, Marcilius Hansda sons of Johan Hansda; Elsi Hansda, Silvia Hansda, Chunnu Hansda daughters of Yakub Hansda inherited the property as because Peter Hansda died issueless. It was their specific case that Ticket Murmu was not the brother of Harma Murmu.

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36. It was their further case that though Joba Murmu was married in ‘gharjamai’ form of marriage but from paragraph 46 of Gantzer’s report, the inheritance among Santhal was changing owing to force of public opinion and even during the time of Gantzer survey, daughters, not married in ‘gharjamai’ form, also inherited paternal property when father had no son, so although Joba Murmu was married in

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‘gharjamai’ form, but she was also able to succeed the property of her father in both cases.

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37. Thus, the specific case of the defendant no. 1 to 5 was that Joba Murmu would succeed the properties on account of ‘gharjamai’ form of marriage and otherwise also she was entitled to inheritance and for that purpose reference was made to paragraph 46 of Gantzer’s report and it was stated that the inheritance among Santhal was changing owing to force of public opinion and even during the time of Gantzer survey, daughters not married in ‘gharjamai’ form, also inherited paternal property when father had no son.

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38. The survey authority had rightly entered the name of Johan Hansda, Yakub Hansda and Peter Hansda in recent survey Khatian which was published on 04^th June, 1993.

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39. In para 21 of the written statement, it has been mentioned that the defendants have been residing in the house situated in plot No. 493 and 494 of Schedule A which were constructed by the sons of Galu Hansda and these defendants were born in that house and it was totally false that in the year 2003 the defendants forcibly took possession of the house and land rather they were in possession since their father and grandfather and hence there was or is no question for dispossession of the plaintiffs by the defendants. It was asserted that the plaintiffs have no locus-standi to maintain the suit and they have no cause of action and they are rank outsiders and prayed for dismissal of the suit.

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Amendment of plaint and additional written statement.

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40. Later on, the plaintiffs had amended the plaint as para 14(a) by mentioning that Harma Murmu had four daughters Joba Murmu, Maina Murmu, Budhin Murmu, Jhagi Murmu and also introduced a new plea that said Galu Murmu was taken in adoption which was recorded by settlement authority and accordingly in genealogical table also name of other sisters of Joba Murmu has been added after amendment. In response, additional written statement was filed by defendant 1^st party and in that written statement the amended portions

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has been denied and it has been pleaded that no paper regarding adoption was presented before survey authority rather finding possession, the names of Johan Hansda, Yakub Hansda, Peter Hansda were correctly recorded in khanapuri.

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41. On the basis of pleadings of the parties, the following issues were framed by the learned trial court: -

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I. Is the suit maintainable in its present form?

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II. Have the plaintiffs valid cause of action for the present suit?

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III. Is the suit barred under the principle of waiver, estoppel and acquiescence?

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IV. Whether Harma Murmu had four daughters and got one of the daughter namely Joba Murmu married in ‘gharjamai’ form?

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V. Whether Galu Murmu has been taken on adoption?

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VI. Are the plaintiffs legal heir of Harma Murmu and have inherited property of Harma Murmu?

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VII. Are the plaintiffs entitled to the claimed relief/reliefs?

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VIII. To what other relief or reliefs the plaintiffs are entitled to?

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42. The plea of adoption of Galu Murmu as raised by the plaintiffs by amending the plaint was rejected by the learned trial court and hence the issue no. V was decided against the plaintiffs and in favour of the defendants. The issue nos. I, II, III & VII were also decided against the plaintiffs by referring to the decision in connection with issue nos. IV and VI and observing that it was clear that the plaintiffs have not inherited the properties of Harma Murmu so there was no valid cause of action for the suit and hence the plaintiffs could not maintain the suit against defendants. The findings of the learned trial court with regard to issue Nos. IV and V were also against the plaintiffs and it was held that Harma Murmu had only one daughter, namely, Joba Murmu and she was married in gharzamai form and consequently the plaintiffs representing the agnates, had not inherited the property of Harma Murmu rather it was inherited by the

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descendants of Joba Murmu and her husband represented by the defendants.

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43. This Court finds that in internal page 3 of the trial court’s judgment the case of the defendants has been recorded that as per paragraph 46 of Gantzer’s report, inheritance amongst Santhal was changing owing to force of public opinion and even during the time of Gantzer Survey daughters, not married in ‘gharzamai’ form also inherited the paternal property when the father had no son. The learned trial court also recorded that the case of the defendants was that although Joba Murmu was married in ‘gharzamai’ form but she was able to succeed the property of her father in both the cases. The aforesaid findings of the learned trial court is quoted as under: -

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“It is also case of defendants that though Joba Manjhi was married in ‘gharjamai’ form of marriage but from para 46 of Gantzer’s report the inheritance among Santhal was changing owing to force to public opinion and even during the time of Gantzer surrey daughters not married in ‘gharjamai’ form also inherited paternal property when father had no son, so although Joba Murmu was married in ‘gharjamai’ form but she was able to succeed the property of her father in both cases.”

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44. The discussion of the learned trial court with respect to alternative plea raised by the defendants claiming inheritance, irrespective of gharjamai form of marriage, is clearly reflected from the written statement and also in the aforesaid passage of the trial court’s judgement. However, since the trial court was of the view that the marriage was in ‘gharjamai’ form, the court did not consider as to whether Joba Murmu could inherit the property even if the marriage was not in ‘gharjamai’ form, although such a point was duly raised.

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The 1^st appellate court.

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45. The learned 1^st appellate court framed three points for determination as follows: -

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“ The first question is , (1) Whether Joba Murmu, daughter of recorded tenant Harma Murmu put in ‘gharjamai’ form of

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marriage with Kanhu Hansda of village Kalipur Ranga, P.S. Jama, District Dumka?

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The second question is , (2) Whether Harma Murmu and Ticket Murmu were full brothers and the present plaintiffs being descendants of Ticket Murmu are the kindred and agnate of recorded tenant Harma Murmu?

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The third question is, (3) Whether suit property recorded in the name of Johan Hansda, Yakub Hansda and Piter Hansda all sons of Galu Hansda in the recent record of right (Exhibit B or 4/b), new Khata No. 10 of Mouza Mangurdih, on the basis of Yaddast No. 447 (Exhibit 1) prepared by the Survey Settlement Authorities of recent survey settlement in which the Defendant No.1 Ismail Hansda shown documents and claimed before the Survey Settlement Authorities that his father Galu Hansda is the adopted son of recorded Tenant Harma Murmu, who has found daughters?”

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46. While deciding the 1^st question, the learned 1^st appellate court recorded that both the contesting parties admitted and relied on their same customary law of inheritance by Santhal females, prescribed at para 46 of Revisional Survey Settlement Report of Mr. J. F. Gantzer’s concerning Santhal Pargana District of the year 1922-35, published by Superintendent Government Printing Press, Bihar, Patna in the year 1936. The learned 1^st appellate court has taken into consideration that Gantzer’s Report says about gradual change in Santhal custom, but confined their discussion only to the extent that how a Santhal daughter can be put in ‘gharjamai’ form of marriage and then becomes entitled to inherit the property of her Santhal father .

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47. The learned 1^st appellate court further considered the plea of the defendants that they tried to impress upon the court that the right of inheritance by the female daughters was getting changed and ‘gharjamai’ could inherit both the property of his natural father and his father-in-law. However, the learned 1^st appellate court observed that the defendants failed to place any cogent evidence to establish such change of customary law and that not a single instance was brought on record to the effect that any Santhal daughter married in ordinary form and her ‘gharjamai’ husband inherited both the properties. The learned

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court agreed that change in custom can be accepted, but such change must be proved by cogent change circumstances of the present prevailing custom. The observation of the learned 1^st appellate court is quoted as under: -

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“ The defendants tried to impress, upon this court that right of inheritance by female daughters taking change and a ‘gharjamai’ can inherit both the property of his natural father and his father-in-law but the defendants failed to place any cogent evidence to establish such change of customary law. Not a single instance brought on the record to the effect that any ordinary married Santhal daughter anal her ‘gharjamai’ husband inherited both the property. I agree with the submission that change in custom can be accepted but such change must be proved by cogent change circumstances of present prevailing custom. In spotting this discussion for little later, now I find it essential to keep aside the findings of trial court and independently travel and discuss the pleadings, oral and documentary evidences or rival parties independently in the context of customary law and dispute involved in this case.”

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Findings of this Court on the substantial question of law.

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48. In the present case, the ancient custom that daughters were not entitled to inherit property in Santhal community is an admitted fact and it is also an admitted fact that there was a variance in such custom that a daughter who undertakes marriage in ‘gharjamai’ form would be entitled to inherit the property through her husband. In the present case, the deviation from the ancient custom of complete exclusion of daughters from inheritance, for daughters who undertake ‘gharjamai’ form of marriage, is not in dispute. The plaintiffs claimed that Joba Murmu, the only daughter of recorded tenant Harma Murmu, had not inherited the property of Harma Murmu as she did not perform ‘gharjamai’ and the defendants took a plea that of ‘gharjamai’ form of marriage. The plea of the defendants was accepted by the trial court, but this finding has been reversed by the learned 1^st appellate court, in connection with which no substantial question of law has been framed. Meaning thereby that the finding of the learned 1^st appellate court that

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Joba Murmu had not undertaken marriage in ‘gharjamai’ form, has attained finality.

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49. This Court also finds that the plea raised by the plaintiffs that Galu Murmu was taken in adoption so as to claim the property through Galu Murmu was also rejected and said finding has also become final as no question of law has been framed on this point.

¶162

50. However, the case of the defendants does not end at this. The defendants had also disputed the applicability of ancient custom of exclusion of daughters from inheritance in case where Santhal died without a son, by taking a specific plea in the written statement that Joba Murmu would have inherited the property in view of the development in the society of Santhals by referring to the Gantzer’s Settlement Report which was relating to the period 1922-35 and was finally published in the year 1936 wherein it has been recorded that there were some gradual changes in Santhal custom with regard to inheritance of property by the sole daughter in the family in absence of a son.

¶163

51. At this stage, it would be relevant to quote full paragraph 45 and 46 of the Gantzer’s Report [which have been relied by both the parties] as under: -

¶164

“ 45. Females - Entry of Women's names in the records, -The relevant portion of Khanapuri Rule no. 46 reads as follows: --

¶165

"If a female is the cultivator of a field her name should be accompanied by that of her father if she inherited the property from him, or by that of her husband if she inherited from him. It may be assumed, therefore, that the revision settlement records have been prepared in accordance with the prescribed rule, but in the absence of any definite finding on the point at issue embodied in a dispute list or other order passed by an Assistant Settlement Officer, the value to be attached to the entry of a father's name or a husband's name, as the case may be, is open to challenge when the exact nature of the woman's title is under consideration in a subsequent suit. The position may be summed up in Mr. Dain's observation in his judgment dated

¶166

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¶168

9th April 1934 in Commissioner's Santal Parganas Settlement Appeal no. 128 of 1933-34 :--

¶169

"When a woman holds land, it has not been the practice in the Santal Parganas to make any entry indicating the exact, nature of the right by which she holds it and any observations made on the subject at this stage would not bind a court before which the issue may be directly raised at some future time.''

¶170

46. Santal Tribal Law of Inheritance.- According to tribal law only male can inherit land. Sons jointly succeed father. If brothers are co-sharers in a holding dies without issue, the surviving brothers and the sons of predeceased brothers inherit share Per-Stripes.

¶171

The Hindu or Muhammadan laws of succession do not apply to Santals. Santal tribal law is quite definite in not allowing females to inherit, but this law is gradually undergoing a change and the situation created by this change is discussed in a separate paragraph below.

¶172

According to tribal custom, it is permissible for a man with daughters and no sons to take a son-in-law into his house as a ‘gharjamai’ and to give him thereby all the rights of a son. The adoption of a ‘gharjamai’ is a formal proceeding leaving no room for doubt as to the father-in-law's intention and resulting in the ‘gharjamai’ cutting off all connection with his own family as far as his rights to property are concerned, and becoming to all intents and purposes the son of his father-in-law. When such adoption has been formally made the ‘gharjamai’ can succeed as a son and oust all other male relatives. It is of importance to note that a ‘gharjamai’ can be adopted only by a deliberate public act in the presence of the village community at the time of the marriage, and that according to tribal law a father-in-law cannot at a later stage convert an ordinary son-in-law into a ‘gharjamai’. A widow cannot in any circumstances, create a ‘gharjamai’. There is a distinction between a ‘gharjamai’ and a Ghardi-jamai. In both cases the bridal party goes from the bride's house to fetch the prospective husband and no dowry (pon) is given, but whereas the ‘gharjamai’ is adopted permanently as a son, a ghardi-jamai merely lives and labours in his wife's home for a previously stipulated period which may extend up to five years. He thereby works off the debt due on account of the non-payment of Pon. A ghardi-jamai is not entitled to get anything from his wife's

¶173

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¶175

family, but the woman herself is usually given a small present (arpa) annually at the harvest season, and this is utilized for setting up her new home. At the expiry of the stipulated period, the Ghardi-jamai is free and may return to his own home with his wife.

¶176

When a ghar-jamai has succeeded to his father-in-law's estate the holding has usually been recorded in his sole name. In some cases, at the request of the parties, the wife has been jointly recorded with her husband.

¶177

The rules against female succession among Santhals whether Christian or non-Christian are changing owing to the force of public opinion, and the rules which have been previously accepted, cannot be treated as hard and fast and binding for all time. The change which is occurring is in the direction of ameliorating the condition of women and giving them a more assured footing in the family. During the course of the revision of settlement operations the daughters of a deceased Santhal have sometimes been recorded as his heirs not only without opposition from the agnates but at their re-quest. In other cases, it appears from title suit decisions, that arbitrators in Santhal cases have found in favour of daughters. This is particularly so in the case of girls who suffer from any physical defects. In dealing with cases of this nature, the custom adopted in a particular locality must be carefully considered. It would be unwise to force upon an unwilling litigant a decision in advance of custom. If a change in custom has been well established and generally accepted it will, of course, be treated as the customary law of the locality in mitigation of the harshness of the ancient tribal law.

¶178

As a rule we have tried as far as we could legally do so, to record daughters in all cases where not to do so would have involved real hardship, e.g. where the male relations not only want to claim the land but refuse to maintain the girl. Where close male relations, who obviously have a clear right under the law, have been suspected to be likely to desert the girl, we have recorded them, but have also endeavoured to record the girl in the remarks column of the khatian as khorposhdar until death or marriage.

¶179

As regards, widows, the entries have had perforce to be even less uniform. There have been not a few cases in which no objection has been raised to be recording of the widow in her own right, and in such cases she has been described as wife of so and so. As in the case of Hindu widows, this entry

¶180

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is intended to indicate that she has inherited the property from her late husband, and that when she dies it will revert to those male relations who would ordinarily have inherited it at once under Santhal law. In other cases, the widow has like the daughter been recorded only in the remarks column as a khorposhdar for certain plots sufficient to maintain her, until her death.

¶183

To sum up it may be said that where a Santhal woman has been recorded as wife of so and so, she holds a widow's right as if she were a Hindu widow. Where a Santhal woman has been recorded as daughter of so and so, she may be taken to have full rights of inheritance somewhat in the manner of a woman inheriting stridhan property under the Hindu law. The question of succession in such cases is still somewhat in doubt as the system is new, but there seems little doubt that if she dies issueless, Santhal sentiment would prefer that the property should revert to her nearest male relatives." (emphasis supplied)

¶184

52. The perusal of the Gantzer’s Report clearly reveals that the rules against female succession amongst Santhals was changing owning to the force of public opinion and the rules which were previously accepted, could not be treated as hard and fast and binding for all times. It also observed that the change which was occurring was in the direction of ameliorating the condition of women and giving them a more assured footing in the family. It was clearly observed in the report that during the course of settlement operation, the daughters of a deceased Santhal were sometimes recorded as his heirs not only without opposition from the agnates but also at their request; it also appeared from the decisions in title suits and also the decisions of arbitrators in Santhal cases that succession of daughters found favour and this was particularly so in the case of girls who suffered from any physical defect. It was also observed in the Gantzer’s report itself that it would be unwise to force upon an unwilling litigant a decision in advance of custom. It was observed that if a change in custom has been well established and generally accepted, it will of course be treated as the customary law of the locality in mitigation of the harshness of the ancient tribal law of complete exclusion.

¶185

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¶187

53. The learned 1^st appellate court upon considering the materials on record held that the Exhibit 4 is the Record of Rights of Gantzer's Settlement recorded in the name of Harma Murmu and in remarks column of such Record of Rights of Jamabandi No. 22, against Plot No. 493 & 497 of Mouza Mangurdih, was shown in the name of the son of Joba Murmu [daughter of the recorded tenant Harma Murmu]. This was an undisputed entry and the plaintiffs tried to explain this entry by referring to another custom of ‘taben-jom’, although there was no such pleading from either side with respect to the custom of ‘taben-jom’. The learned 1^st appellate court has also not recorded any finding that the aforesaid portion of the suit property was given to Joba Murmu [daughter of the recorded tenant Harma Murmu] as a part of ‘taben-jom’. The impact of such undisputed inheritance of the defendants with respect to a portion of the suit property relating to Jamabandi No. 22, against Plot No. 493 & 497 of Mouza Mangurdih, is also required to be considered.

¶188

54. This Court finds that inheritance of defendants being the descendants of Joba Murmu [daughter of the recorded tenant Harma Murmu] with respect to aforesaid part of the suit property was admitted with respect to which the plaintiffs or their ancestors had never raised any objection. Meaning thereby, inheritance of the defendants with respect to a portion of the suit property stood admitted and undisputed by the plaintiffs but they tried to justify the same before the 1^st appellate court by referring to another custom of ‘tabenjom’ without any foundational pleading about the custom and accordingly no finding accepting such argument was recorded. Thus, the justification of ‘taben-jom’ given by the plaintiffs with respect to inheritance of the defendants with respect to a portion of the suit property having no basis in the pleadings, the natural consequence is that the defendants, being the descendants of Joba Murmu [daughter of the recorded tenant Harma Murmu] have inherited the said portion of the suit property.

¶189

55. The defendants had duly proved that a portion of the suit property stood recorded in the name of descendants of Joba Murmu

¶190

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[the sole daughter of recorded tenant] and the plaintiffs failed to give any acceptable explanation to such entry as discussed above and such an entry was itself an evidence of shift from the ancient custom of complete exclusion of daughter from inheriting the property of her father in the absence of son with respect to the area involved in the present case. The plaintiffs never objected with regards to inheritance of such property by the defendants and tried to explain the same by referring to another custom of ‘taben-jom’ of giving certain property to the daughter by the father which could be inherited by the descendants of the daughter but such explanation referring to another custom is of no consequence in absence of any pleading with respect to such a custom. There is neither any pleading nor any proof that the said portion of the property was given to the daughter, Joba Murmu as a part of another custom of ‘taben jom’.

¶193

56. Having recorded the aforesaid findings, there can be no reason to exclude inheritance of the remaining suit property by the defendants, the descendants of Joba Murmu [the sole daughter of recorded tenant], whose possession has been recorded in the survey record of rights finally published in the year 1993.

¶194

57. Thus, in view of the aforesaid discussions some material was certainly available on record to show that a portion of the suit property was admittedly, and without any objection and dispute, was inherited by the defendants who were the descendants of the sole daughter of son-less recorded tenant, namely, Joba Murmu [daughter of the recorded tenant Harma Murmu]. Accordingly, the finding of the learned 1^st appellate court that the defendants failed to place any cogent evidence to establish such change of customary law is incorrect.

¶195

58. This would be in consonance with the shift in the ancient custom of complete exclusion of daughters from inheriting the property of Santhal father as recorded and taken note of by Gantzer’s report of 1922-35 published in 1936 which has recorded that the rules against female succession among Santhals were changing and the rules which have been previously accepted, cannot be treated as hard

¶196

23

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¶198

and fast and binding for all time and the change which is occurring is in the direction of ameliorating the condition of women and giving them a more assured footing in the family and during the course of the revision of settlement operations the daughters of a deceased Santhal have sometimes been recorded as his heirs not only without opposition from the agnates but at their request and in other cases, it appeared from title suit decisions, that arbitrators in Santhal cases have found in favour of daughters. It has been observed in the report itself that the custom adopted in a particular locality must be carefully considered and it would be unwise to force upon an unwilling litigant a decision in advance of custom.

¶199

59. This Court also finds that the plaintiffs have failed to prove any cause of action to file the suit in the year 2003 by alleging that the plaintiffs were dispossessed in the year 2003 by the defendants. Rather, the plaintiffs have failed to prove their possession over the suit property at any point of time. The finding of the learned trial court that there was no cause of action to file the suit remained undisturbed by the learned 1^st appellate court.

¶200

60. In the case of Madhu Kishwar (supra) , writ petitions were filed before the Hon’ble Supreme Court challenging the provision of Chhota Nagpur Tenancy Act, 1908, which provides succession of property only in the male line. The judgment rendered by Hon’ble Mr. Justice K. Ramaswamy commenced from paragraph 15 of the reports who held in paragraph 46 that customs among the Scheduled Tribes, vary from tribe to tribe and region to region, based upon the established practice prevailing in the respective regions and among particular tribes. It has been held that it would be difficult to decide, without acceptable material among each tribe, whether customary succession is valid, certain, ancient and consistent and whether it has acquired the status of law. The Hon’ble Judge held that customs became a part of the tribal laws as a guide to their attitude and practice in their social life and not a final definition of law. They are accepted as set of principles and are being applied when succession is open. They have accordingly nearly acquired the status 24

¶201

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¶202

of law. The Hon’ble Judge held that under aforesaid circumstances, it was not desirable to grant general declaration that the custom of inheritance offends Articles 14, 15 and 21 of the Constitution and each case must be examined and decided as and when full facts are placed before the Court. Paragraph 46 of the aforesaid judgment is quoted as under: -

¶203

“46. It would thus be seen that the customs among the Scheduled Tribes, vary from tribe to tribe and region to region, based upon the established practice prevailing in the respective regions and among particular tribes. Therefore, it would be difficult to decide, without acceptable material among each tribe, whether customary succession is valid, certain, ancient and consistent and whether it has acquired the status of law. However, as noticed above, customs are prevalent and are being followed among the tribes in matters of succession and inheritance apart from other customs like marriage, divorce etc. Customs became part of the tribal laws as a guide to their attitude and practice in their social life and not a final definition of law. They are accepted as a set of principles and are being applied when succession is open. They have accordingly nearly acquired the status of law. Except in Meghalaya, throughout the country patrilineal succession is being followed according to the unwritten code of customs. Like in Hindu law, they prefer son to the daughter and in his absence daughter succeeds to the estate as a limited owner. Widows also get only limited estate. More than 80 per cent of the population is still below poverty line and they did not come on a par with civilized sections of the non-tribals. Under these circumstances, it is not desirable to grant general declaration that the custom of inheritance offends Articles 14, 15 and 21 of the Constitution. Each case must be examined and decided as and when full facts are placed before the court.”

¶204

The majority view has been recorded in paragraph 1 to 14 of the aforesaid judgment and it has been observed by majority judgment in paragraph 5 that they agreed with Hon’ble Justice K. Ramaswamy as mentioned in paragraph 46 of his judgment.

¶205

61. This Court finds that the judgment of the Hon’ble Supreme Court in the case of Madhu Kishwar (supra) has clearly taken note of

¶206

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the fact that the customary law varies from tribe to tribe and from region to region and each case is required to be examined when full facts are placed before the Court .

¶209

62. In the judgment passed by this Court reported in (2018) SCC OnLine Jhar. 1903 (supra), this Court has taken into consideration the full text of Gantzer’s Report in paragraph 46 of the report which indicated numerous circumstances under which the ancient custom of complete exclusion of daughter from inheriting the property of her father need not be followed/had not been followed by the arbitrators amongst Santhals and also by the courts. In such circumstances, inconsistency in following the custom of complete exclusion of female from inheriting the property of her son-less father was already reflected in Ganzter’s report and as to whether such custom is required to be followed in the particular area /region would depend upon the facts, circumstances and evidence placed on record in each case. This Court in paragraph 35 of the judgment has taken judicial notice of the general law in the matter of inheritance amongst Santhal women in the earlier judgment dated 12^th September 2008 arising out of judgment and decree dated 21.07.1987 in Title Appeal No. 04 of 1983. Paragraph 35, 37 and 38 of the aforesaid judgment reported in (2018) SCC OnLine Jhar. 1903 (supra) is quoted as under: -

¶210

“ 35. This court has also taken judicial notice of the aforesaid change in the matter of inheritance amongst santhal women in judgment relied upon by the counsel for the petitioners dated 12th December 2008 arising out of judgment and decree dated 21.07.1987 in Title Appeal No. 4/1983. While deciding the said case this court has observed as follows:—

¶211

“16. From the aforesaid discussions, it is evidently clear that custom prevailing in the Santhal community has undergone a great change. The rules against female succession among santhals whether christen or nonchristens are changing owing to the force of public opinion. The change which is occurring is in the direction of uplifting the condition of women and giving them right in the family as also in the property. From the books of the great scholars who are the authors of many

¶212

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books including the books in Survey and Settlement quoted herein before, it is manifestly clear that there are instances where a sonless male or female have taken in adoption a grandson or any of the agnates of the family.”

¶215

37. Considering the fact that the issue of inheritance of property amongst tribal women in the state of Jharkhand, particularly with respect to santhal women, with respect to whom the trend in their favour was observed as back as in the year 1927- 35 in aforesaid Ganzter's settlement report, some steps are required to be taken by conducting some study about the recent trends and make appropriate recommendations.

¶216

38. The trends of change in customary law of Santhal regarding inheritance of property by women, particularly daughters where there are no sons of recorded tenant, has been duly acknowledged and considered in Gantzer's settlement report as quoted above and it was observed in the report itself that in the customary law dealing with the cases of this nature, the custom adopted in particular locality must be carefully considered. The trend of shift of customs in santhals in the matter of women's right to property was noted in the said report as back as in the year 1927-35. This court is of the considered view that the present status about such customary law, which deprives santhal women from inheriting property, is required to be examined by conducting a study to find out what further changes have taken place in the trend observed as back as in the year 1027-1935, which can be undertaken even by the law commission.”

¶217

63. In the judgment passed by this court in S.A. No. 127 of 2014 (Prabha Minz vs. Martha Ekka and Others) decided on 2.04.2022, the two substantial questions of law were involved and in the present case, this court is concerned only with substantial question of law No. B: -

¶218

“A. ………………………………..

¶219

B. Whether the alleged custom amongst tribals debarring females from their right of inheritance over the lands left by the ancestors satisfies the test of a binding custom as laid down in the case of Laxmibai (Dead) thr. L.Rs. and Anr. Vs. Bhagwantbuwa (Dead) thr. L.Rs. and Ors.; reported in (2013) 4 S.C.C. 97 ?

¶220

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64. The substantial question law No. B was considered vide paragraph 34 onwards, the learned Single Judge of this Court referred to the judgment passed in the case of Laxmibai (supra) and laid emphasis on the observation made therein that “Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it. Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He who relied upon custom varying general law, must plead and prove it. Custom must be established by clear and unambiguous evidence.” The learned Single judge clearly held in paragraph 38 that the Hon’ble Supreme Court in Laxmibai case (supra) precisely alluded to the jurisprudential requirement while stating that a custom must be proved to be ancient, certain and reasonable and that the evidence adduced on behalf of the party concerned must prove the alleged custom to be uniformly and consistently being followed. Paragraph 38 of the aforesaid judgment passed in S.A. No. 127 of 2014 is quoted as under: -

¶223

“38. The Hon’ble Supreme Court in Laxmibai case (supra) precisely alluded to this jurisprudential requirement while stating that a custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom to be uniformly and consistently being followed.”

¶224

The learned Judge in S.A. No. 127 of 2014 further observed in paragraph 23 that in the said case, there was no definite evidence that amongst the Oraons a daughter is excluded from inheriting the property of her father in all the circumstances . It also held that the burden was on the defendants to establish that there was a custom which excluded a daughter from inheritance even in the absence of her brother and even if her husband was not brought as ‘gharjamai’. The learned Judge had also taken note of the judgment passed in the case of Madhu Kishwar (supra) and ultimately held in paragraph 44 that the judicial prudence placed before the Court as discussed in the body

¶225

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of the judgment demonstrated and reflected beyond doubt that a general customary law of inheritance among Oraon and Santhal tribes has not crystallized in a uniform general customary law having binding force debarring natural female heirs from right of inheritance. The Judicial decision also reflected an unease to accept and recognize such inequitable custom. It has also been held that the Courts have refrained to uniformly or consistently recognize the customary law of inheritance excluding female from inheritance so as to hold that they have acquired binding force of general customary law and that in every case the claim of title is to be decided on the pleading and proof of customary law regarding the custom and each case has to be judged individually. Further, paragraph 44 of the aforesaid judgment passed in S.A. No. 127 of 2014 is quoted as under: -

¶228

“The cumulative effect of these judicial precedent demonstrate and reflect beyond doubt that a general customary law of inheritance among Oraon and Santhal tribes has not crystallized in a uniform general customary law having binding force debarring natural female heirs from right of inheritance. Judicial decision also reflects an unease to accept and recognize such inequitable custom. The Courts have refrained to uniformly or consistently recognize the customary law of inheritance excluding female from inheritance so as to hold that they have acquired binding force of general customary law. In every case the claim of title is to be decided on the pleading and proof of customary law regarding the prevailing custom. Ideally it is high time that customary law of succession should be codified and be given a statutory shape. But in the meantime each case has to be judged individually regarding the applicable custom.

¶229

65. This Court finds that in terms of the judgment passed in the case of Madhu Kishwar (supra) read with judgment passed in S.A. No. 127 of 2014(supra), there is no uniformity in applicability of the custom of exclusion of female from inheritance and certainly every case has to be examined on the basis of pleadings and the evidences placed on record. This Court also finds that in the Gantzer’s report itself, there was a clear indication about shift in ancient custom of

¶230

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complete exclusion of daughters in the matter of inheritance of property of Santhal who died without a son; different circumstances were mentioned which were enough to demonstrate that the ancient custom of complete exclusion of daughter from inheritance in the absence of a son of Santhal was neither followed uniformly nor followed with certainty nor such a custom was continuous and compulsory so as to treat such ancient custom as a binding law. One of such circumstances of shift from complete exclusion of daughters from inheritance was when the daughter was married in ‘gharjamai’ form.

¶233

66. This Court is of the considered view that the exclusion of applicability of general law, on the ground of applicability of customary law, is an exception to the general law, and the exclusion is to be strictly construed. This Court is of the considered view that unless the party (here plaintiffs) who relies upon a custom so as to exclude applicability of general law, proves that the custom so relied upon is not only ancient but is also uniform, certain, continuous and compulsory amongst the people of the community in the area/region to which the custom is sought to be applied, the ancient custom does not translate into a customary law so as to exclude applicability of general law.

¶234

67. This Court is of the considered view that unless every element of a binding customary law as pointed out by the Hon’ble Supreme court in the case of Laxmibai (supra) i.e. custom asserted by the plaintiffs was being followed with certainty, uniformity, continuously and compulsorily, the alleged custom as asserted by the plaintiffs cannot be said to be a binding customary law governing the parties.

¶235

68. In Laxmibai case (supra), it has been 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,

¶236

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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 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.

¶239

69. In the present case, it was the specific case of the defendants by referring to the Gantzer’s Report that the daughter of a son-less Santhal would inherit the property under both the circumstances i.e. in case of ‘gharjamai’ form of marriage and also under general law of inheritance. In such circumstances, it was for the plaintiffs to prove by cogent evidence that exclusion of daughter from inheritance of property of son-less father was being followed in the area involved in the present case uniformly with certainty, continuously and compulsorily under all circumstances.

¶240

70. This Court is of the view that the plaintiffs had not discharged their onus by bringing adequate evidence to bring home the aforesaid element of ancient custom of exclusion of female from inheritance of property of her son-less father amongst Santhals under all 31

¶241

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circumstances even when she had no brother and even if her husband was not brought as ‘gharjamai’ and the learned 1^st appellate court erred in holding that the onus was upon the defendants to prove that the custom was not being followed in the area.

¶243

71. This Court is of the considered view that once the Gantzer’s Settlement Report clearly indicated the shift in change of ancient custom of complete exclusion of daughter from inheriting the property of her father in the absence of son, in various ways, the onus was still with the plaintiffs who were relying upon the ancient custom, to prove that it was being followed, uniformly with certainty, continuously and compulsorily in the area concerned . In absence of any such evidence by the plaintiffs regarding the ancient custom being followed uniformly with certainty, continuously and compulsorily , the onus did not shift upon the defendants to prove the shift in the ancient custom of complete exclusion of daughter from inheriting the property of her father in absence of son. One such shift from ancient custom was the ‘gharjamai’ form of marriage of the daughter of son-less Santhal which plea was raised by the defendants but has been rejected by the learned 1^st appellate court and has attained finality. However, the defendants had also raised the plea in the written statement that otherwise also the daughter was entitled to inherit the property of her father and for that purpose a reference was also made in the written statement regarding the Ganzter’s Report which had indicated the shift in the ancient custom, upon perusal of which, this Court finds that a shift in the ancient custom of complete exclusion of daughter from inheriting the property of her father in the absence of son has been recorded by observing that at times the property was recorded as heir in the name of the daughter by entering her name in the record of rights without any objection from the agnates and at times with the consent of the agnates.

¶244

72. In view of the aforesaid findings in the light of the facts and circumstances of this case, this court is of the considered view that the alleged custom amongst Santhals debarring females from their right of inheritance over the land left by the ancestors does not satisfies the 32

¶245

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test of binding custom as has been laid down in the case of Laxmibai (dead) through LRs. Vs. Bhagwantbuwa (dead) through LRs. Reported in (2013) 4 SCC 97, inasmuch as, the plaintiffs have failed to prove that the ancient custom of debarring daughter from inheriting the property of her father in the absence of son, was followed uniformly with certainty, continuously and compulsorily with respect to the area involved in this case.

¶247

73. The substantial question of law, as framed vide order dated 06.05.2025, is accordingly answered in favour of the appellants (defendants) and against the (plaintiffs) and consequently the suit for declaration of right, title and interest of the plaintiffs over the suit property and seeking recovery of possession from the defendants, is dismissed.

¶248

74. This appeal is allowed.

¶249

75. Pending I.A., if any, is closed.

¶250

76. Let a copy of this order be communicated to the courts concerned through ‘e-mail/FAX’.

¶251

(Anubha Rawat Choudhary, J.)

¶252

Mukul/AFR

¶253

33

Ismail Hansda And Ors. v. Mathias Murmu And Ors.

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Ismail Hansda And Ors. v. Mathias Murmu And Ors.

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