# HARlHAR PRASAD SINGH AND ORS v. BALMIKI PRASAD SINGH AND ORS

- **Citation:** [1975] 2 S.C.R. 932
- **Court:** Supreme Court of India
- **Decided:** 1974-12-10
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harlhar-prasad-singh-and-ors-v-balmiki-prasad-singh-and-ors-6373
- **Pages:** 28

## Headnote

932
HARlHAR PRASAD SINGH AND ORS ..
v.
BALMIKI PRASAD SINGH AND ORS.
December 10, 1974
IM. H. BEG, A. ALAGIRISWAMI AND v. R. KRISHNA IYER, JJ.]
Hi11du Law-Successio11-Special family custom, Proof of.
Code of Civil Procedure (Act 5 of 1908) 0.22 a1td 0.41, rr. 4 a1td 3.lF11i/ure to implead parties and legal represematives-Efject of.
A suit was filed by the plaintiffs claiming to succeed to th~ estate of R,, a
Bhu.mihar Brahmin. The basis of the claim was a special custom of the family
to whi:h the parties belonged, though under ordinary Hindu Law they would
not be entitled' to succeed to !he estate being related to R in a distant degree.
For establishini~ the custom the plaintiffs sought to prove
52
instances. The
trial court held that 49 instances ·were proved and decreed the suit. The High
Court, in appeal, held that none of the inslances were proved and allowed the
appeal.
Jn ap~al to this Court, a[>art from the contention that the High Court·was
·Wrong, the app·ellants (plaintiffs) also contended that the respondents'
(defondants) 3,ppeal to the High Court should have been dismissed as parties WE>re
riot properly brought. on record; while the respondents raised the preliminary
objection that the appeal to this Court should be dismissed, because the leg.al
:representative of one of the deceased plaintiffs was not brought on record.
Dismissing the appeal,
HELD : l(a) A.ccording to the plaint the parties are descendants of M and
·the plaint proceeds on the basis of the custom prevai/i11g i11 the family of M.
Ou! of the 52 instances only 3 belonged to the family of M. Merely because
the evidence with regard to various branches. which are said to be desccndc:d
.from P-a remote ancestor who lived five or six hundred years ago-was llet
in without any objection from the defendants, .it could not be assumed or helld
·that such evidence was admissible.
Besides, the evidence put forward, tbou11h
accepted on bol:b sid~s with regard to persons descer.ded from P. is more a
matter of tradition without much historical value. It is of very little eviden!iary
value and of little assi-stance in deciding the issues in the case. The evidenc:e
to be admitted cannot travel beyond the pleadings, and therefore, the
only
evidence which can be taken into account is of the three instances in M's family.
1935 C~D, H; 936 B; 938 B; 939 C-G]
(b) What must be proved is that the usage has been acted upon in practice
for such a long· period and with such invariability .as to show that it h:r>, by
common consent. been submitted to as the establiShed governing· rule,, of the
famny. The evicl~n-~,should be clear and unambiguous, thou!?h instances
in
support of a family custom may not be many and frequent. [938 G-H; 942
D-E]
,
.
(c) The initilll onus of proving the special family custom lies on the plaintiffs.
[942 EJ
.
Ramalakshmi Ammal v. Siva11atha Perumal Setf111rava, 14 M.l.A. 570,
585
.applied.
Puspavathi v. Vishweswar A.I.R. 1964 S.C. 118, followed.
(d) in a .case' like this it is the documentary evidllnce that would show tM
actual attitude of the parties and their consciousness regarding the cu5tom fa
more important than any oral evi~ence that was given in the case. Till
t~!s ·
·.case, the appellar1ts, who are not ignorant persons but who are confirmed ltt1-
!lllnts nowhere made a claim solely on the basis of the custom which they aw
now putting forward.
On the •:Ontrary, they have been siding with the con ..
·testing defendantn.
Their attitude throughout is consistent
only
with
their
consciousness that they had no right to any share in R's estate. They had not
ap~ared a» witn~sses and given evidence. where they would have been the best
J)ersons to explain the circumstances relating to the instances or explain the
, contents of documents which _are not consistent with the custom p1caded. Some
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H· '· SINGH v. B. P. SINGH (Alagirlswaml, /,)
933
documents in which nearer reversioners seemed to have recognised the right

## Text

_Characters 0–39,927 of 91,162. This is a partial read: ask again with offset=39927 for what follows._

932
HARlHAR PRASAD SINGH AND ORS ..
v.
BALMIKI PRASAD SINGH AND ORS.
December 10, 1974
IM. H. BEG, A. ALAGIRISWAMI AND v. R. KRISHNA IYER, JJ.]
Hi11du Law-Successio11-Special family custom, Proof of.
Code of Civil Procedure (Act 5 of 1908) 0.22 a1td 0.41, rr. 4 a1td 3.lF11i/ure to implead parties and legal represematives-Efject of.
A suit was filed by the plaintiffs claiming to succeed to th~ estate of R,, a
Bhu.mihar Brahmin. The basis of the claim was a special custom of the family
to whi:h the parties belonged, though under ordinary Hindu Law they would
not be entitled' to succeed to !he estate being related to R in a distant degree.
For establishini~ the custom the plaintiffs sought to prove
52
instances. The
trial court held that 49 instances ·were proved and decreed the suit. The High
Court, in appeal, held that none of the inslances were proved and allowed the
appeal.
Jn ap~al to this Court, a[>art from the contention that the High Court·was
·Wrong, the app·ellants (plaintiffs) also contended that the respondents'
(defondants) 3,ppeal to the High Court should have been dismissed as parties WE>re
riot properly brought. on record; while the respondents raised the preliminary
objection that the appeal to this Court should be dismissed, because the leg.al
:representative of one of the deceased plaintiffs was not brought on record.
Dismissing the appeal,
HELD : l(a) A.ccording to the plaint the parties are descendants of M and
·the plaint proceeds on the basis of the custom prevai/i11g i11 the family of M.
Ou! of the 52 instances only 3 belonged to the family of M. Merely because
the evidence with regard to various branches. which are said to be desccndc:d
.from P-a remote ancestor who lived five or six hundred years ago-was llet
in without any objection from the defendants, .it could not be assumed or helld
·that such evidence was admissible.
Besides, the evidence put forward, tbou11h
accepted on bol:b sid~s with regard to persons descer.ded from P. is more a
matter of tradition without much historical value. It is of very little eviden!iary
value and of little assi-stance in deciding the issues in the case. The evidenc:e
to be admitted cannot travel beyond the pleadings, and therefore, the
only
evidence which can be taken into account is of the three instances in M's family.
1935 C~D, H; 936 B; 938 B; 939 C-G]
(b) What must be proved is that the usage has been acted upon in practice
for such a long· period and with such invariability .as to show that it h:r>, by
common consent. been submitted to as the establiShed governing· rule,, of the
famny. The evicl~n-~,should be clear and unambiguous, thou!?h instances
in
support of a family custom may not be many and frequent. [938 G-H; 942
D-E]
,
.
(c) The initilll onus of proving the special family custom lies on the plaintiffs.
[942 EJ
.
Ramalakshmi Ammal v. Siva11atha Perumal Setf111rava, 14 M.l.A. 570,
585
.applied.
Puspavathi v. Vishweswar A.I.R. 1964 S.C. 118, followed.
(d) in a .case' like this it is the documentary evidllnce that would show tM
actual attitude of the parties and their consciousness regarding the cu5tom fa
more important than any oral evi~ence that was given in the case. Till
t~!s ·
·.case, the appellar1ts, who are not ignorant persons but who are confirmed ltt1-
!lllnts nowhere made a claim solely on the basis of the custom which they aw
now putting forward.
On the •:Ontrary, they have been siding with the con ..
·testing defendantn.
Their attitude throughout is consistent
only
with
their
consciousness that they had no right to any share in R's estate. They had not
ap~ared a» witn~sses and given evidence. where they would have been the best
J)ersons to explain the circumstances relating to the instances or explain the
, contents of documents which _are not consistent with the custom p1caded. Some
A
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H· '· SINGH v. B. P. SINGH (Alagirlswaml, /,)
933
documents in which nearer reversioners seemed to have recognised the right
of more distant reversioners could not be relied upon In the absence of any
evidence by the parties to those documents. who are parties to th~ present suit, ·
as to why and how those documents were executed or why the recitals were p1:.t
in, in those documents.
On earlier occasions, whenever they put forward a claim
it was on the liasi-3 of being near reversioners and sometimes on the basis of
false genealogy than on the basis cif custom.
[945 E-G; 948 D-F, H 949 CJ
The High Court was, therefore, right in holding that three instanc-~s in 'the
family of M were not proved and that the ,:ustom pleaded was not established .
(949 E]
2(a) In the present CllSe one of the appellants (plaintiffs) died and his
widow and son were substituted in his pla:ce. Thereafter, the widow
died,
after the Hindu Succession Act' 1956 had come into force, leaving a daughter.
but the daughter was not added as a party. But there is no substance in the
preliminary objection raised by the respondenl'3 that becac,se the daughter was
not added as a legal representative the appeal to this Court had abated.
(949 F-950 DJ
· In this case each of the reversioners is entitled to his own specifi: share ..
He could have sued for his own share and got 11 decree for it. Therefore, if
one of the· plaintiff• dies and his legal representatives are not brought
on
. record the suit or the appeal might abate as far as he is concerned but not a& ·
· regards the other plaintiffs or appellants.
Further more, .the principle that
applies in this case ii, whether the estate
of the
deceased
appellant
or
respondent is repr~epted. The principle is of representati<?n of the estate of .
the deceased wh11:h need not be by all the ie¥ai representatives of the ·deceased.
This is not a case where no legal representallve of .the ,deceased was on r:ecord.
Iii' a case where the. ~rson brought on record 1s a legal representative, it
would · be consonant with jll'Stice and principle that, in the absenee of fraud
or collusion. the bringing. on record of such a legal representative is sufficient
to prevent the suit or appeal from abating. · The fraud or collusion must be·
a fraud or cpllusion between the appellant on the one hand and ,the representative of the·' deceased respondent, who is brought on record. on the other and
vice versa, and tile fraud contemplated is a fraud or collu•sion between the parties
on record to the 'dt;.triment of the legal representatives who has not been brought
on record. It could not be said that failure to bring the daughter on . record
is fraud on the part of her brother ('who was on record) or that he was in
collusion with respondents, nor can he deprive of her rights by not impleadin11
her as legal representative of their deceased mother.
(951 F-H; 952 G, 954
A-B; 955 B-C]
The Stale of P1111jab v. Nathu Ram [1962) 2 S.C.R. 636; Ramesliwar Prasad
v. M /s. Sh~am Behari/al Jagannath (1964] 3 SCR 549; Daya Ram v. Shyam
Sundarl [!965] 1 S.C.R. 2n; Dolai Molliko v. K. C. Pamai [1966) Supp S.C.R.
22; Raton Lal v. Lal Man Das (1970] I S.C.R. 296; Mahabir Prasad v. Jape
Ram (1971) 3 S.C.R. 301; Ram Sarup v. Munshi [1963] 3 S.C.R; 858: N. K.
Mohd. Sulaimari Sahib v. N. C. Mohd. Ismail Saheb (1966] 1 S.C.R. 937 and
Karam Singh Sobir & Anr. v. Shri Pratap Chand & Anr. [1964] 4 S.C.R., refer·
~~
'
(b) Against the de:ree passed by the trial court in favour of the appellants
(plaintiffs) 3 appeals were filed in the High Court by the respondents (def en- ·
dants)
In two of the appeals one of the plaintiffs was not impleaded as a
party. . The High Court was correct in hold1og that the third appeal atleast,
had not abated because of the failure to implead one cif the plaintiffs as res·
pondent in the other two appeals and that it was open to the High Court to give
relief io alt the appellants in the High Court (respandents in this Court) in
exercise of its powers under 0. 41'. r. 33, C.P.C.
[956 B-D: 959 B-C]
In this case. each one of the nla·intiffs could have filed a suit for his share
of the estate of the deceased. The fact that all the re·versioncrn joined together
as plaintiffs and filed one suit does not mean that, if for one reason or another.
the S\!.it of one of them fails or abMes the suit of the others also fails
or
abates.
The decree is in substance the combination ·of several .decrees in
favom of several plaintiffs. If in an appeal
a~ainst the de:rce one of the
plaintiffs is not added as a respondent it only means that the ~ecree in
his
SUPREME COURT REPORTS
[1975] .2 s.c.R.
iavour cannot be set 116ide or modified even if the appeal succeeds against the
o!her plaintiffs in respect of their interest. There would in that case be no c:onll1ct between the decrees as the decree is a combination of many decrees.
In
other words the result of the failure to add one of the plaintiffs as a respondent
in. two of the appeals would be that the decree granted in his favour by the
tnal -=ourt would stand but not the decrees granted in favour of the other plain-
.tiffs. They can be reversed in those appeals. There would be no such djffi.
culty in the third appeal and in that appeal the decree granted in favour of the
particular plaintiff as well as in favour of the other plaintiffs could bi\ve been
reversed. It was, therefore, possible by the application of the provisions of
·0.41 rr. 4 and 33, to have allowed the appeal in full and given rehef not merely
to the appellants in the_ third appeal but also to the appellan~ in the other
.two appeals assuming that they had filed those appeails. It is not a case where
the appellants in those two appeals had not taken the trouble of filing an appeal
and therefore they should not be given the benefit of the appeal filed by the
appellants in the third appeal. They had filed appeals to establish their rights ..
It was by an oversight in filing those appeals that they hail failed to implead
one of the plaintiffs as a party. To' such a case, 0.41, r.33 clearly applies.
1956 ~D; 957 E-HJ
CML Al•PELLATE JURISDICTION: Civil Appeals Nos. 760 to 762
·Of 1'967.
Appeal from the judgment and d1:cree dated the 27th July, 1959
of the Patna High C.ourt in Appeal from Original Decree Nos. 326 •
.332 and 333 of 1948.
S. C. Misra, Indubhanu Singh, Jnderdeo
Narain
Singh,
Gynn
Sudha Misra and D. Goburdhan, for the appellants.
A. K. Se11 (In C.A.No. 760/67), Sarjoo Prasad (In C.A. No. 761762/67), Gunteswhar Prasad and R. D. Datar for the respondents.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-In the year l.872 one Ramdhan
Singh,
a
Bhumihar Bra.hmin, of village Barhiya in Bihar died leaving behind
two widows, Mosst. Manrup Kumari and Pan Kumari, and about
1700 bighas of land. Manrup Kumari died in 1923 and Pari Kumari
in 1933. Even while Pari Kumari was alive her brother Sunder Si111gh
-seems to have been managing the estate on her behalf. Shortly before
her death he managed to get from her a deed 9f relase in favour of
1wo persons, Gaya Singh and Falgu Singh, alleged to be the sons of
Ramdhan Sin:gh's daughter, Jayanti Kumari. In spite of the objecticms
by persons who claimed tO be the nearest reversioners of Ramdhan
Singh's estate, the lands were recorded in their names in the land
revenue proo:edings. ThiS led to a number . of proceedings both civil
and criminal. Ultimately thne.Yill;sioners, who are now the respondents
·in these appr,als, filed five suits, T.S. Nos. 53 and 61 of 1934 and
20, 29 and 41 of 1935 for possesslon._.of the estate. In 1936 anotl:ter
suit, 'f. S. No. 37 of 1936 was filed biy the present plaintiffs 8 to 1.2,
15, 16 and 18 Ito 21 and Kunu Babu Singh, uncle .of the 11th plaiintiff. In that suit also Oaya Singh and Falgu Singh were defendants. In
·addition, the plaintiffs in T.S. No. 53. of 1934 and certain others w11re
added as defcmdants. The plaintitls ill that suit claimed to be the
nearest reven1ioners to the estate of Ramdhan Singh and also that
there was a custom prevalent in the falltlly for a long time that mcire
distant heirs than !he Shastric heirs of a persori also joined. the latter
in succeedin£ to the properties left behind by him. They wanted to be
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H, p, SINGH v. B· 1'. SINGH (Alagiriswami, /.)
935
held as the nearest reversion~s to Ramdhan Singh's .estate and thus
entitled to the properties left by Pari Kumari. That suit failed. Thereafter, the suit out of which the present appeals arise was filed. In this
the. plaintiffs in T.S. Nos. 53 and 61 of 1~34, and 20, 29 and 41 of
1935 are defendants;. so also certain alieness from them. Certain
parties who are related to Ramdhan Singh in the same degree as the
plain~s. are also defendants. The plaintiffs in the title suits of 1934
and 19'15 are the nearer heirs of Ramdh.an Singh and are entitled .to
succeed to his estate on the ground of propinquity if the ordinary
rule of Hindu Law applied. The plaintiffs in the- present suit as well
as the defendants who are sailing with. them are related to Ramdhan
Singh in a distant degree and would not be entitle9 to succeed to his
estate under the ordinary rule of Hindu Law. Their claim is based on
the plea of a flpecial c.listom applying to the family to which the
parties belong.
.
-
According to the plaint the parties are descendants of one
Choudhry Mohkam Singh. The plaint was accompanied by a genealogical table which runs into 26 printed pages in the paper book. But
during the course of the trial evidence has been let in to prove the.
genealogy from the days of one Pran Thakur who is said to have
migrated to the village Barhiya about five to six hundred years ago
from a place called Sandehpur. Though on behalf of the defendants
the fai:t that the original faritily had migrated from Sandehpur was
not admitted, a point whitji is of little importance, it seems to have
been generally agreed among. the parties that the common ancestor
was Pran Thakur and he lived five to six hundred years ago. Instances
to prove the clistom put forward on behalf of _the plaintiffs were given
not merely from tpe family <?~ Mohkam Singh but also from various
other braii.~hes said to. be descended from Pran Thakur. The village
Barhiya is divided· into twelve Tarafs named after twelve of Pran
Thakur's descendants.' The twelve descendants whose names these
Tarafs bear were not necessarily at the same degree of descent from
Pran Thakur but that again is not of much importance. The parties .
to this suit belong to Taraf Ram Charan but in the plaint it was not '
the custoni of Taraf Ram Charan that was pleaded but only the custom
in the family of Ch. Mohkam Singh, Taraf Ram Charan being a
larger group.
·
Fifty two instances were sought to be proved on behalf of
I.he
plaintiffs. The learne.d Sub-ordinate Judge who tried the suit held fortythree of them proved. The learned Judges of the High Court felt that
from a reading of the plaint, evid~nce in connection with 'the instances in Ch. Mohkam Singh's family only were admissible and ought
to have been gone into. But as it did not appear that the defendants
had objected to the adducing of evidence from the other families and
Tarafs and the parties perhaps understood the plaint to mean that
their common ancestor was Pran Thakur, they did not rest content
with examining the instances from Mohkam Singh's family only. Out
of the 52 instances only three were from among the descendants of
Mohkam Singh. Out of the other 49 instances, nine were from
lhe
Taraf Ram Charan, two of which were held by the learned Subordinate Judge as not proved. He, however, held all the three instances
936
SUPREME COURT REPORTS
(1975] 2 S.C.R.
from Mohkam Singh's family as proved. The learned Judges of the
High Court, ho\'.'f'ever, on an exhaustive review of the evidence helld
that none of the fiftytwo instances hacl been established satisfactorily
the custom alleged in .the family of Mohkam Singh or amongst the
by clear and unambiguous evidence so as to be sure of the existence of
descendants of Pran Thakur.
·
After hear)ng both the parties on the question of the admissibility
of the evid~nce we have arrived at the conclusion ¢at the only eYidence which c:an be taken fato account are the three instances in
Mohkam Singh's family. Mohkam Sing_h himself seetns to have been
alive over 150 years ago. When oral evidence is sought to be given
about what happened some generations ago, it has to be assessed with
a great deal of care, which we shall now proceed to do. Before doing
so, however, it is necessary to have a clear idea as to what
w~1s
pleaded. The ~'U~tom pleaded was put in the following words in parngraph 5 of the plaint :
"The Kulachar or ancient family c_ustom or usage with
regard to succession which prevails from time immemorial
in the family of the plaintiffs and defendants First, Second
and Third parties arid which has been invaribaly and strictly
followed observed ~d adhere·d to by the ancestors of .the
parties and of which there is a clear consciousness in the
family is that when a separated male member of the family
dies without any issue, his estate devolves in the first instance on his widow or widows, if there be any, and 011 the
death of the widow or widows as the ·case may be or on
the death of the said separated ~ale members dying without
issue and without .leaving any widow the estate reverts_ to
the descendants of the father of the said .male owner and
they take, the estate in equal shares per stripes and not per
capita and brothers of the last male owner share the estate
equally with the sons and grand-sons of de_ceased brothers.
Similarly, if the last male owrier had no brothers and his
reversioners are his un.cles or cousins the !lame rule viz.
that the uncles or cousins inherit the estate alongwith the
descendants of the predeceased uncles or cousins on the
death of the widow or widows and if there be no widow
immediately on the death of such male owner dying 1ssueless.
In other words the rule of Hindu Law yiz. that the nearer
in degree excludes the more remote is mo(Jified by the Kulachar to the extent enumerated above."
It wciuld be noticed that even the question of the father or mother 01
th~ deceased succeeding is not mentioned.
Now let us see if there is atiything in the plaint which had any
reference to the descendants of Pran Thakur or his descendants in
branches other than that of Ch. Mohkal!D Singh. Paragraphs l . 2 and
4 of the plaint are as follows :
"l. The plaintiffs and the defendants who are Bhumihar Brahmins by caste belong to the same family and are
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H, p, SINGH v. B. P. SINGH (A/.agiriswami, /,)
931
descended from the same common ancestor. Their relationship will appear from the genealogical table given at the foot
of the plaint. -
2. The parties to this suit and other Bhumihar Brahmin
residents of village Burhee
(excepting those who
are
descendants in the female line or are recent settlers) belong
to the same class of ,Babhans known as Dighwaits and are
descended from the same stock.
3. The Dighwait Babhans who migrated to Burhee were
ordinarily governed by the Benares School of Hindu Law
but the matters of succession they fo!lawed theil' respective
Kulachars or ancient family customs which have been
prevailing in their families from time immemorial and which
having acquired the force of law modified the general Hindu
Law to that extent."
It would be noticed that in paragraph 1 the plaintiffs and defendanti
are said to belong to the same family and descended from the same
common ancestor. As reference is made to the genealogical tree and
that starts only from Mohkam Singh, it is obvious that tho reference
to the_ common ancestor is reference to Mohkam Singh. From paragraph_ 4 it is clear that in matters of succession Dighwait Babhans
followed their respective ancient family customs showing that each
family had its own custom, Immediately follows
the statement in
paragraph 5 earlier extracted which shows that what the plaintiffs are
referring to is the ancient family custom iii the family of the plaintiffs
and defendants which is tbe family of Mohkam Singh as already
explained. Reference to the male member of the family dying separate and issuless in paragraph 6 can therefore refer only to the family
· of the plaintiffs and defendants mentioned in par~gr'aph · 5.
Then
follows the statement in paragraph 7 which by reference to the genealogical table appended to the plaint says that the common ancestor
of the plaintiffs and defendants was Chowflhry Mohkam Singh. Paragraph 17 again refers to the family custom or usage of all the male
descendants of Ch. Mohkam Singh being entitled to inherit the estate.
Paragraph 18 refers to one of the five sons of Ch. Mohkam Singh
dying issuetess and his property being divided equally per stripes ·
amongst the descendants of the remail).ing three sons. Paragraph 20
again. refers to defendants' second party being descendants of Ch.
G . Mohkam Singh and as such entitled under the Kulachar to inherit
some share in the estate of Ramdhan Singh. Even the prayer is for
a declaration about the ancient custom, usage or Kulachar in the
H
· family of the plaintiffs and defendants. Nowhere is there any reference to Pran Thakur or his descendants or the twelve Tarafs or
even Taraf Ram Charan as the one to which . the parties belonged.
lssu~ ( 6) in the stiit regarding this question is also as follows :
" ( 6) Is there any Kulachar or ancient family custom
in the families of the parties in contravention of the established principle of law of succession as alleged by the plain13-L346Sup Cl/75
938
SUPREME·COU.RT REPORTS·
[1975] 2 s.C:.R.
tills in para 5 of the plaint? If so, is it valid and binding on
A ··
the parties affecting the succeesion of the heritage left by
Ramdhan Singh deceased ?
r
There isL therefore, no room at all for any argument that the plaint
proceeded on the ba8ia of the custom prevailing among all tho
descendants of Pran Thaklμ'. It sequarely proceeded on the basis of
the custom prevailing in the family of Ch. Mohkam Singh. Indeed
8
the leal'.DCd Advocate for .the appellants stressed again and again that
the plaint was drafted by a very able advocate and was a very co1rrect
one. It is no doubt true that the witnesses for the plaintiffs as welll as
defendants admit that they are all descended from l'ran Thakur. That
seems to be the tradition in the village. It is said that there are about
two thousand families in that village who claim to be descended from
Pran Thakur. Though th.ere is evidence that youngsters in tlilese
c
families are made to learn. by heart their genealogy it is probably
only t.o the extent of the names of B!)ven generations which is necessary in the case of. religious ceremonies. Nobody could be remember·
ing the genereallogy of over twenty generations from the days of Jiran
Thakur. At the most it is a matter of tradition and hearsay. We are
saying. nothing about the admissibility or otherwise of hearsay evi·
dence. Suffice it to say· that for the purposes of this .case the evidc1nce
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admitted cannot travel beyond the pleadings and therefore has tc1 be
confined to the instances in Mohla!~n Singb's family.
Now on whom does the burden re11t and wh~t is the sc0pe of the
evidence ths~t is admissible ? The earliest decision on the question
regarding proof of custom in variance of the general Jaw is found in
Ramalakshmi Ammal v. Sivanat/IQ Perumal Sethuraya (14 Moo. Ind.
App. 570 @ 585) to the efiect : .
"it is .of the essence of special usages modifying the Qrdi·
nary Jaw of succession that they should be ancient and invariable.; and it is further essential that they should f>e established to be so by clear and unambiguous evidence. It is
only by means of such evidence that the Courts can be
assured of their existence, and that they possess the conditions of: antiquity and certainty on which alone their legal
title t.o {CC()gllition depends.''
This passaSe <!Vas quoted by this Court with approval in its decision
in Pwhpavat_bi Viiayaram v. P. Visweswar (AIR 1964 SC 118) and
tbis Court went on further to observe :
"In dealing with a family C.'UStom, the same principle
will have to be applied, though, of course, in the case of a
family c:ustom, instances in support of the custom may not
be as !llanY or as frequent as in the case of customs pertaining tp ~~ territory or to the community or to the character
of any (iState. In dealing with family customs, the consensus
of opinion amongst the members of the family, the traditional belief entertained by them and acted upon by them
their statements, and their conduct would all be relevant and
it is only where the relevant evidem:e of such a. character
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appears to th.e Court to be suflicien"t that a specific family
custom pleaded in a particular case would be held to be
proved, vide Abdul Hussein Khan v. Blbil Sona (45 llid.
App. 10: A.1.R. 1917 P.C. 181).
What is important is that the specific familr, custom pleaded in a
particular case sholjld be proveo. The specific family custom pleaded
in this case is the custom of the 'family' of Mobkam Singh. Even
though that 'family' itself consists of numerous fam,ilies
descended
from Prall Thakur the custom pleaded was not the custom. prevailing
in the 'family' of Pran Thakur. As we have already mentioned, the
descendants of Pran Thakur seem to consist of at least two thousand
families and it is difficult to use the word 'family' in relation to such
a largti agglomeration of families. We might as well talk of the human
family. Be that as it mey, there was no mention in the pleadings of
the i;ustom prevailing_ among the descendants of Pran Thakur. Indeed
nowhere in the course of earlier litigl\tions or documents, including
T.S. No. 37 of 1936, is there a mention of Pran Thakur and his
family. Merely because the evidence with regard to the various
branches, whictl are said to be descended from Pran Thakur, was lef
in, apparently without any objection on the defendants' side, we aie
not prepared to assume or hold that such evidence was admissible.
The genealogical tree from Pran Thakur to Mohlcam Singh is at best, ,
.of doubtful valae even though the tradition among Pran Thakur'&,,
descendants may be as put forward in ·the suit. The earliest document
which we have examinea, Ext. 23 of the year 1818, shows that even
Mohkam Singh· had died some years before that and between that
date and 1947-1948 when the present case was tried, there have.
been six generations. From Pran Thakur, who is .supposed to have
lived ab.out 5~6 hundred years ago genealogy is given for only . six
generations that is, till the. formation of the twelve tarafs. That seems
to have been over 400·years ago. Apart from the value to be attached
t<?1.. or the reliability of the evidence regarding this genealogy it is
dimcult to see llllY relevance of this genealogy as there is a gap between that time and Mohkam Singh's days. The fact that a family
belongs to a taraf can have no significance as a taraf is only a portion
of the village, and the fact that a taraf is n8.I!led after person is no
,guarantee that all those living in the taraf are bis descendants. The
evidence put forward, even though accepted on both sides1 with regard
to persons descended from Pran Thakur milSt be held at ~st to be
.a matter of tradition without μiuch historical val~ and much less evi•
ilentiary value and of very. little assistance in deciding the question at
issue in this case. Similarly, any oral evidence even if admissible abciut
what happened in other branches of. the family descended from Pran
Thakur is also not likely to be of much assistance unless they are
. probabilised by some sort of documentary evidence.
We do have
some doeuments at least about Mohkam. Singh's family but not about
others. After hearing the parties on both sides and after looking into
the decisions relied upon by the plaintiffs we indicated to the parties
that. we consider the evidence about instances other than those belong-·
ing to Mohkam Sin~h's descendants were not admissible and we would
not consider the evidence with regard to the other 49 instances. The
decisions cited by plaintiffs with regard to the admissibility of evi-
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SUPREME COURT REPORTS
(1975] 2 ~.C.R.
dence in this case in relation to instances of custom in families 011her
than those descend¢ from Mohkam Singh contain certain observations which were relied upon by the plaintiffs. The ratio · of those
decisions themselves have. nothing to' do. with the question of admissibility. lnde,ed, it is difficult to see any ratio in those decisions. They
were all decisions as to succession which were based upon the conclusions drawn on the basis of the evidence adduced in those cases.
The decisions contain mostly discussion on the evidence and
any
observations made in the course of those discussion~ should be confined to the circumstances and the evidence in those cases ancf they
cannot provide any guiding principle in appraising the evidence of
different facts and circumstances in other cases. Even so we would
refer to those observations and show how those observations are r1:le- ·
v~t to the facts of those cases and can neither serve as a precedent
ht'this case nor can be considered to have laid down any principle of
law.
'
In Rajah Rup Singh v. Rani Baisni & the Collector of Eatawah
(11 Ind. App. 149) it was held on the evidence in the case that the
raj in question was an ancient raj and an ancestral estate, and that
by virtue of an ancient custom in the family it was impartible. The
plaint was to the effect that tbe ancient usage of raj of Bhara. in
common wit([ .other families of the Rajahs was that upon the decease
of a Rajah his nearest and eldest male heir succeeds him to the ·exclusion of the other male heirs, and that total eitclusion of women. It
was contended that a case· had occurred in respect of the raj of Ruh
Ruh in which a widow had succeeded in preference to a male colla- ·
teral. Ruh Ruh was said to be one of the five branches of whic BhiU'a
was also om:. That was how the instance· regarding the Ruh Ruh
estate was considered. That decision is a far cry from the present cme
where evidence regarding 2000 families said to. be descended from
an almost mythical ancestor are sought to be let in without any pleading with regard to it.
In Garurudhwaja Parshad Singh- v. Saparandhwaja Prashad Sin.gh
(7 In_d. App. 238) it was held:
"on thti! evidence, reversing the judgment of the · High
Court, that the appellants had satisfied· the serious burden
of proving a special family custom of descent by primo-
. gcniture.
The evidence shewed that for a period of nearly eighty
years from the .time of the British occupation of the district in Vihkh lay the estate in suit, the enjoyment had been
consistent 'with the alleged custom, and for the earlier and
greater 11art of that term had been inconsistent with any
other legal basis. Also, that in two other families in the same
district, derived from the same ancestor as the parties to the
suit, the alleged custom prevailed."
It was in comiection with !hese facts that it was observed :
"A witness may state his opinion as to the ·existence of
a family custom, and give as the . grounds thereof. informaA
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tion derived from deceased persons. But it must be independent opinion based on hearsay, and not mere repetition
of hearsay; see Indian _Evjdence Act, s. 32, sub-s. 5; ss. · 49
and 60. Its weight depends on the character of the witness
and of the deceased persons."
In that case it appeared from the evidence that the custom of primogeniture prevailed in twQ other families, derived from _a common
ance&tor and lent strong anteceqent probability to the appellant's
case. In that very .. case the Privy Co'lihcil remarked that "a good deal
of the evidence of statements made by deceased persons is of doubtful admissibility'', and after referrin..1f to the evidence of some of the
witnesses the Privy Council said that they would not be disposed to
place much relianee upon it standing alone. There is all the dt!Jerence in the world between two. families and two thousand families.
In Ahmad Knan v. Channi Bibi (52 Ind. App. 379) it was held
that "the cust9m could (lroperly be proved by general evidence given
by members of the famil_y or tribe without proof of special instances."
In !hat case there was a large body of oral evidence establishing the
custom, wholly unrebutted by the defendants, who relied exclusively
on the district riwaj-i·~ on which neither the High Court nor . the
Privy Council were prepared . to place any. reliance. Suffice it to any
say that the present is ·not a case where no evidence of specific inatances was given ~ut on the other hand evidence was given of a largo
number of instances most of which were held proved by the learned
tri~ Judge and held fDot proved by the learned Judges of the High
Court. We are not concerned in tJ:iis case with the custom prevailin&
in a particular family or tribe without instances.
In Rohan Ali Khan v. Chaudhri Asghar Ali (57 Ind. App. 29)
in the case of a dispute in one branch of the two families, one in the
ruale line and the other in the female line descended from the same
person, who had ·uved so long under the same conditions and have
been so closely connected fogether as to be treated as one community
the evidence of the custom observed by one family was held to be of
high evidential value as to the custom in the other. Furthermore, there
. was the wajib-ul-araiz _signed by the descendants of both the families
which strongly supported the plaintiffs' case. The distinction between
that case and ille present one is too obvious· to need stress.
The ca8e in Maharaja Sris ,Chandra Nandi v. Rakhalananda
Thakur (6J C.L.J. 520) was one where the evidence given. by the'
plainillfs supported ·a family tradition from generation to· generation
and which evidence was founded upon information derived from
deceased persons and such tradition was also supported by documentary evidence. In that case the proof of the tradition was also to
be found in the documents supporting 'the statements of deceased
persons. It is, therefore, not possible to diss.x:iate one aspect of the
decision from the o~er. It is very difficult to say whether without the
documentary evidence the oral evidep.ce regarding proof would have
been accepted.
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In A/ai Verma v. Vijai Kumari (AIR 1939 PC 22} it was said
that the proof of actual instances of a family custom excluding
daughters from the inheritance was not necessary. For this statement
reliance was placed upon th~ decision in Ahmad Khan v. Channi Jiiibi
(supra) to which we have already referred. It was also stated that. the
opinions of responsible ·members of the family as to the existence of
such a custom, and the grounds of their opinion, thmigh generally in
the nature ol; a family tradition, were clearly admissible. In that case
the custom was also :recorded in wajib-ui-arzes of every village owned
by a member of the family and they were very numerous. The Privy
Council refexred to the probative value of these village records which
had been recognised over and over ag~n by the Board. Here again it
is suffice to say that it is not possible to predict what would have been
the decision but for the waj1'b·ul·arus.
The dcchiion in Musammat S11bhani v. Nawab (68 IJ1d. App. p.1)
was arrived at after elaborate discussion of the evidence in the case
and examining numerous ~artier decisions on the point as well as.
Rattingan's Digest of Civil Law for the Punjab and Wilson's Gem:ral ·
Code of the Tribal Customs in the Shahpur District of the Punjab:
Ther!l are some interesting observations therein which show that the
statements iri the Rattingan's Digest cannot be taken at their face
value without reference to the circumstances. The final conclusion of
the Privy Council that what must .be proved is that the · usage :has
been acted upon in practice for such a long period and with such
invariability, as to show that it has, by common consent been
s111bmitted to as the established governing rule of the particular district;
with the modification that the word 'family' should be substituted for
the word 'district' holds good iQ. every case. They also laid down
that the initial onus lay on th~ p)aintiffs to prove the special cust·OID
and that doe1; not in any way help the plaintiffs.
We shall now deal with the three instances relating to Mohkam
.Singh 's family.
We should probably preface this discussion by saying that in
T.S. No. 37 of 1936 tbel'jl was a half~hearted attempt to prove
the
custom and the enly instance given was the present instance 10. It
was held not proved _and as quite a few of the present plaintiffs w1!re
parties to thaf suit, the decision therein would be· res-judicata as
against them. But we prefer to discuss the matter and decide it on its
merits becau!:e there all the distant mversioners were nut parties unlike in this cnse.
.
Instance No. 10 is regarding suc~ssion to the estate of Dip
~arain, Who died leaving behind his widow ?!!rkalo Kumari,
who
d1~ in th~ year 1914. At that time three nephews of Djo Narain,,
Nirsu-plamtiff 8 . and Rarnnath-plaintifl 9, sons of his brotllellG~nga, as well as Nunubabu the son of his bxother Ajodhya wi:re
alive. Another son of Ajodhya, named Durga, died. leavin2 a s-on
~adharaman, · ~laintiff 11. Bansi, the third brother of Dip Narain had
. d1~ as al~o his son? Rarnsarup, leaving two sons Sheokumar
a]nd
Ra1eshwan. There !~ an ~krarnarna Ext. 18 dated 14-3-1916 as a
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result of which Sheokumar and Rajeshwari got certain properties. .It ··
is to be noticed that Nirsu and Ramnath are plaintiffs 8 and 9 and
Rajeshwari is plaintiff 10 and Radharaman is plaintiff 11 and they
themselves_ did not give evidence to explain the circumstances undei
which Ext. 18 camJl int~ existence. But the most significant fact is
that Sheokumar ·and Rajeshwari. first claimed that they had been
adopted by i>arkalo Kumari and it was thereafter that Ext. 18 came
into existence. If Sheokumar and Rajeshwari were sure of the custom,
which is now pleaded, they need not have made a claim on the basis
of their being adopted sons. They did not claim on the basis of the
custo!ll when they filed the petition in thl" land registration case. Ext.
18 itself mentions that Sheokumar and R,M,..4hwari filed. an application
in the land registration case on the ground that they were adopted
sons of Parkalo ~umari and also specifically mentions that they have
no interest in title to and concern with the estate left behind by the
said mosamat (Parkalo Kumari) nor can they have any. In the face
of these two significant fac!s we do not think that the mere mention
of the custom in Ext. 18 establishes the existence of the custom now
pleaded. Bx • .18 does not say what the custom was.
·
There was some argument at the bar as to what exactly the. origi.'.
nal word used was, REWAJ DASTURI or REWAJ-0-DASTURI,
whether it was customary usage or custom and usage. Whatever that
may be, we are not able to ·persuade ourselyes that if there was such
a custom ·as alleged Sheokumar and Rajeshwari would not have made
a 'claim even in the first event on the basis of the custom. As Rajeshwari and Sheokumar have not given· any evidence as to why they gave
up the claim on the basis oC the adoption and the document itself,
though it mentions custom, does not say that they were given some
property on the basis of the custorfi or what the custom was, we
· would, giving also full effect to the express disclaimer by both of them
to any right, hold that Ext. 18, does not help to establish the existenc~
qf the custom pleaded. We are, therefore, of the poinion th!lt the
learned Judges.