Naresh Kumar Singh and Others vs Gopal Singh and Others

Gurusharan Sharma, J.—The present appeal has arisen out of a suit for partition, which was decreed by trial Court, but has been dismissed by the first appellate Court.

The parties are Mundas, an aboriginal tribe of Chotanagpur and suit lands are Mundari Khuntkatti lands. In CS Khewat No. 46 of village Landupdih, District-Ranchi, name of Roiya Munda, common ancestor of parties stood recorded as owner of Mundari Khuntkatti tenancy.

Roiya Munda died leaving behind four sons, namely, Chaitan, Pirti, Jhabulal and Sukhlal. In Revisional Survey, R.S. Khewat No. 47/1 was recorded in the names of defendants 1 and 2, Gulab and Chhutu, both sons of Chaitan, R.S. Khewat No. 4 and 2 was recorded in the name of Pirti, father of plaintiff Nos. 1 and 2 and grand father of plaintiffs No. 3 and 5; R.S. Khewat No. 1 /3 was recorded in the name of Jhabulal, father in law of defendant No. 4 and grand father of defendants 5 to 7. Khewat No. 47/4 was recorded in the name of Sukhlal, late father of defendants 8 and 9, namely, Rusu Singh and Purandar Singh.

Roidya Munda collected rent from raiyats within Mundari Khuntkatti tenancy and according to custom of lineal male primogeniature, which was prevailing in their family in the matter of inheritance, the senior most branch after death of Roiya Munda inherited the whole property and junior branches were allotted the portions suitable to them either in subordinate or in coordinate rights.

In Revisional Surveys records parties were recorded under four separate khewats according to their possession. Accordingly, the eldest brother Chaitan Singh was recorded under Khewat No. 47/1 and other three brothers Pirti Singh, Jhabulal Singh and Sukhlal Singh were recorded under Khewat Nos. 47/2, 47/3 and 47/4 respectively.

Plaintiffs who were descendents of Pirti Singh claimed joint possession and filed present suit for partition in respect of lands of Khewat No. 47/1 only.

According to defendants, plaintiffs were not entitled to any share on partition of the lands aforesaid, which exclusively belonged to the branch of Chaitan Singh.

The suit was decreed on 16.6.1977 holding that plaintiffs were entitled to 1/4th share in the suit property, detailed in Schedule B to the plaint. Contesting defendants'' case with regard to Rule of primogeniature in the family was a myth and was, therefore, no believed. Defendants 1 to 3 filed Title Appeal No. 116 of 1977, which was allowed and trial Court''s decree was set aside. Plaintiff preferred Second Appeal No. 70 of 1979 which was allowed on 28.9.1986 and after setting aside lower appellate Court judgment and decree the appeal was remanded to the Court of appeal below. Again Title Appeal was allowed and consequently plaintiffs'' suit for partition was dismissed. Plaintiffs have, therefore, filed present Second Appeal.

On 13.9.1988 this appeal was admitted to consider substantial question of law, whether the court of appeal below was right in applying the customary rule of lineal primogeniature in this case after passing of the Hindu Succession Act, 1956.

Mr. P.K. Prasad, counsel for appellants submitted that on remand, without discussing evidence on record, court of appeal below recorded finding of fact that family of the parties were governed by customary rule of lineal primogeniature in the matter of succession and inheritance.

According to said rule senior most branch inherits the whole property and the junior branches are allotted suitable portion out of the same either in subordinate or in coordinate rights by way of khorposh, i.e. maintenance grant.

It is well settled that customs can be proved by oral evidence of witnesses acquainted therewith, instances and judicial pronouncement etc. besides oral evidence of DWs 2 to 5, 8, 9, 11 and 12, the contesting defendants also brought on record, Ext. D, which related to Mundari Khuntkatti tenancy of village Landupdih where the present suit properties were situated. It was found that in village Landupdih rule of primogeniature was prevalent. The aforesaid judgment and decree Ext. D of the trial Court was confirmed by Patna High Court in Second Appeal No. 402 of 1966.

From Khewat No. 47/1 it appears that suit land was separately and exclusively recorded in the name of Chaitan Munda and sons of Roiya Munda had already separated before the year 1930. The unbalanced distribution of land shown in Khewat Nos. 47/1, 47/2 and 47/3 was accepted without any challenge for such a long period till 1971, when partition suit was filed. Chaitan Singh being eldest son succeeded Roiya Munda inherited the whole property and allotted to khorpoch to junior members, including plaintiffs'' ancestor under the customs of lineal primogeniature.

From oral and documentary evidence adduced by parties and from their conduct indicated in the impugned judgment dated 21.8.1987, it was held that customary rule of lineal primogeniature was prevalent in the family of parties and plaintiffs were not entitled to seek partition.

The Second Appeal is concluded by finding of fact recorded by Court of appeal below. It is, accordingly, dismissed, but without costs. Lower Court recorded may be sent down.