Durga Charan Mahto v. Raghunath Mahto

This is an Appeal by the Plaintiff in a suit for declaration of title to immoveable property and for recovery of possession thereof. The parties are descended from a common ancestor Satrughna Mahto who was governed by the Mitakshara School of Hindu Law and died in 1846. He had three sons, Chandi, Nageshwari and Radha Nath, of whom the second, Nageshwari, succeeded to the estate upon the death of his father. Nageshwari died about the year 1864 and left two sons, Ram Charan and Sridhar. Ram Charan died in 1904. He had four sons, Krishna who predeceased him in 1896, Narayan, Guru Charan who died in 1906 and Durga Charan who is the present Plaintiff. The first two Defendants are the sons of Krishna and the next three Defendants are the sons of Narayan. The Court of first instance overruled the contention of the Plaintiff that the parties were subject to the Dayabhaga School of Hindu Law but found in his favour that he was entitled to an one-third share in the family estate. This in fact negatived the defence that the family was governed by the rule of primogeniture. Upon appeal, the Judicial Commissioner has reversed the decision of the Court of first instance and dismissed the suit on the ground that the Plaintiff as the youngest son of his father was not entitled to claim any share in the family properties. The substantial question in controversy between the parties, consequently, is whether this family is or is not governed by the rule of primogeniture.

On behalf of the Respondents, it has been contended that the question is essentially one of fact and consequently not liable to be examined in Second Appeal. This proposition is in our opinion too broadly formulated Whether certain events did or did not happen is no doubt a question of fact upon which the decision of the lower Appellate Court is binding upon us: but whether the facts so found do or do not establish the alleged custom is plainly a question of law to be determined by this Court. Besides, as will presently be seen, the judgment of the Judicial Commissioner is based upon evidence not admissible in law, and must, on that ground alone, be deemed unsustainable.

When we examine the written statement of the Defendants we find that the alleged custom is set out in the following terms: “It is the custom observed from a long time past in the families of the Plaintiff, the Defendants and other Kurmis of Pergunnah Silli and other Pergunnahs of the provinces of Chotanagpur, that the eldest son becomes proprietor of the entire village and the remaining sons get something for their maintenance according to the family capacity”. This statement, it will be observed, does not clearly specify whether the custom alleged is a family custom, or a local custom, or a class custom. Apparently the case for the defence is that the alleged custom falls within all the three categories.

In so far as a family custom is alleged the facts found are not only not sufficient to establish the custom, they do in reality negative it. It was pointed out by the Judicial Committee in the case of Ramalakshmi Ammal v. ??? Perumal(1), that if a party rely upon the special custom of a family, to take the succession out of the ordinary Hindu Law, such custom must be proved to be ancient and continuous. The rule is formulated in substantially the same terms in Hurrpursad v. Sheodyal(2), namely, that custom is a rule which, in a particular family or a particular district, has from long usage obtained the force of law: it must be ancient, certain and reasonable and being in derogation of the general rule of land, must be construed strictly. To similar effect is the statement of Chief Justice Tuidal in Tyson v. Smith(3). “It is an acknowledged principle that to give validity to a custom which has been well described to be an usage, which obtains the force of law and is in truth the binding law within the particular district or at a particular place, of the persons and thing which it concerns, it must be certain, reasonable in itself, commencing from time immemorial and continued without interruption: [see also Vayidinada v. Appu(4)]. Consequently the Defendants must establish that the alleged custom, if it is a family custom, has been continuous. Now in so far as, upon the death of Nageshwari, the property was taken by Ram Charan to the exclusion of his younger brother Satrughna, the circumstance is undoubtedly in favour of the Defendants. But this solitary instance is not by itself sufficient to establish the alleged custom. Sarabjit v. ???(5). It is worthy of note that in the case of Chandika v. Muna(6), their Lordships of the Judicial Committee declined to find in favour of an alleged custom upon evidence which consisted of four modern instances. As pointed out in the case of Gopal v. Hanumunt(7), the alleged custom must be very satisfactorily proved by evidence of particular instances, instances so numerous as to justify the Court in finding in favour of the custom. Here, as we have already said, only one instance consistent with the alleged custom has been established. On the other hand, we meet with instances in which the custom would have been recognised, if it did really exist, but the course of succession was contrary to the alleged custom. It is significant that the Defendants allege that Nageshwari was the eldest son of Satrughna and succeeded as such to his estate; the Courts have found concurrently against their allegation. They now turn round and contend that Nageshwari succeeded because his eldest brother relinquished his claim in his favour, this was not only not their case in the Court of first instance but is contradictory to the case sought to be then established. The cases of Chuttardharee v. Tilakdharee(8) and Jeetnath v. Lokenath(9) to which reference was made in the course of argument are clearly of no assistance to the Respondents. Consequently the alleged custom, if it is a family custom, has not been established.

The question next arises whether the alleged custom, if it be deemed a local or a class custom, has been proved upon the facts found by the Courts below. The Judicial Commissioner has relied principally pally upon a judgment of an Assistant Settlement Officer delivered in the course of proceeding under Chap. XII of the Chotanagpur Tenancy Act. It has been pointed out that the present suit was instituted on the 18th September, 1909 whilst the judgment mentioned was delivered by the Assistant Settlement Officer at the attestation stage on the 5th January, 1910, and that the record-of-rights in accordance therewith was finally published so late as the 6th March, 1911. The fact naturally affects the value and importance of the decision of the settlement authorities. But, apart from this circumstance, it is clear that the judgment of the Settlement Officer has been used for a purpose for which it is not admissible under the law. Reliance might possibly have been placed upon the judgment to show that the custom was recognised by the Revenue authorities. But the findings of the Settlement Officer cannot be incorporated into the evidence in this case and treated as practically conclusive between the parties. It is further worthy of note that the Settlement Officer relied upon information gathered by him from the tehsildar of the Silli estate. Whether the Settlement Officer was competent to act upon information so obtained, which was clearly not legal evidence, may be a question for consideration, but it is plain that the Judicial Commissioner was in error when he based his decision on this statement of the tehsildar, who had not been examined as a witness in this litigation: It cannot be disputed, therefore, that the judgment of the Judicial Commissioner is based upon material not admissible in law. But even if the material is used, how far does it carry the case of the Defendants? The statement of the tehsildar is to the effect that the custom of primogeniture exists in 82 out of 84 villages comprised in the Silli estate under which the parties to the present litigation hold their tenancies. The alleged custom, treated as a local custom, is not prevalent in all the villages, and if admittedly it does not prevail in two of the villages, an inference cannot very well be drawn that it does prevail in the village in question. The conclusion is irresistible that the materials upon which the Judicial Commissioner has based his decree do not justify the inference he has drawn from them.

The result is that this Appeal is allowed, the decree of the lower Appellate Court set aside and that of the Court of first instance restored with costs throughout.

Appeal allowed.