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R.S. Chatterji and Syed Hasan
L.K. Choudhary

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Judgment Summary — Sinha, J.

Factual and Procedural Background

The plaintiffs instituted a suit for recovery of possession of certain land. Their case was that the lands belonged to one Mangra Uraon, who died leaving a widow named Pandro and two daughters (each of whom subsequently married defendant No. 1). After Mangra's death, his widow Pandro succeeded him and later executed a deed of sale in respect of the properties in favour of defendant No. 1 (the son‑in‑law).

The plaintiffs, together with defendant No. 2, claimed to be agnatic relations of Mangra and asserted that the parties were governed by tribal custom (not Hindu law), making the plaintiffs and defendant No. 2 the heirs rather than the daughters.

Defendant No. 1's defence was that he had taken the properties on behalf of his son and wife, that no custom entitled agnatic relations to inherit in the presence of daughters, that the plaintiffs and defendant No. 2 were not heirs, and that Mangra was governed by Hindu law of inheritance.

The trial court found the plaintiffs and defendant No. 2 to be the nearest agnates after the death of Mangra's widow and decreed the suit in their favour. On appeal, the court below (first appellate court) reversed that decision and dismissed the suit, finding that although the parties were of the Uraon tribe they had become sufficiently Hinduised so that Hindu law of inheritance applied, thereby entitling the daughters to succeed.

The present judgment is from the subsequent appeal (a second appeal) heard by Sinha, J., addressing challenges to the appellate court's finding on Hinduisation and the allocation of the burden of proof.

Legal Issues Presented

Whether the family of Mangra Uraon was governed by tribal customary law (in which agnatic succession would apply) or by Hindu law of inheritance (in which the daughters succeed).
Whether the appellate court wrongly placed the onus of proof on the plaintiffs to establish tribal custom (i.e., whether the onus allocation was incorrect).
Whether the question of whether a person or family is "Hinduised" is a question of fact (for the court of fact) or a mixed question of law and fact that can be re‑examined in a second appeal.

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. Chatterji)

The court below wrongly threw the onus of proof on the plaintiffs.
The materials on record are insufficient to conclude that Mangra Uraon had become Hinduised so as to make Hindu law of inheritance applicable.
The finding that Mangra had become Hindu was not purely a question of fact but a mixed question of fact and law, and therefore the court on second appeal should review it.

Respondents' / Defence Arguments

Defendant No. 1 stated that he had acquired the properties on behalf of his son and wife.
The defence contended there was no custom entitling agnatic relations to possession in the presence of daughters and that the plaintiffs and defendant No. 2 were not heirs of Mangra.
It was asserted that Mangra was governed by Hindu law of inheritance, not tribal custom.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kritibash Mahton v. Budhan Mahtani, 6 Pat LT 604; AIR 1925 Pat 733	The case concerned Kurmi Mahtons and whether parties were governed by the Dayabhag school of Hindu law; it also was used to support that the question of whether parties are Hinduised is a question of fact for the court of fact.	The court cited this decision to support the proposition that whether parties are Hinduised is a factual determination and not to be re‑examined in a second appeal where findings of fact based on evidence exist.
Srimatya Bidhu Mukhi Dasi, First Appeal No. 68 of 1925, Dated 8-6-1928 (Pat)	Contains observations about classes of cases where burden of proving custom arises and states that where a person governed by customary law sets up a custom, the onus is on that person to prove it.	The court relied on its observation that the onus lies on the party who relies on a custom — supporting the allocation of burden principles discussed in the judgment.
Abdul Hussain Khan v. Bibi Sona Bero, ILR 45 Cal 450; AIR 1917 PC 181	Expressed the principle: when either party sets up a custom as a rule of decision, it lies upon him to prove the custom which he seeks to apply.	Quoted (via Srimatya Bidhu Mukhi Dasi) to underline that a party invoking a custom must prove it; used in discussing onus of proof.
Doman Sahu v. Buka, AIR 1931 Pat 198	Noted difficulty in deciding whether a Mundari woman is a Hindu but stated that the term 'Hindu' can be applied to those who claim to be Hindus and are regarded by surrounding society as Hindus.	Quoted to support the proposition that societal recognition and conduct are relevant to whether persons are to be treated as Hindus for succession purposes.
Harakhnath Ohdar v. Ganpat Rai, AIR 1941 Pat 625; 22 Pat LT 829	Held that courts of fact must determine, in each case, whether aboriginals are governed by their own custom (to be proved) or by Hindu law; decision emphasises case‑by‑case fact finding.	Relied upon to reinforce that the question of application of tribal custom vs Hindu law is to be decided on the facts by the courts of fact and supports treating Hinduisation as factual.
Chunku Manjhi v. Bhabani Manjhi, ILR 24 Pat 727; AIR 1946 Pat 218	Stated principles: aboriginals can become sufficiently Hinduised so that Hindu law applies in matters of inheritance; any custom at variance must be proved by the party invoking it; Hinduisation may be established by adoption of Hindu social usages and acknowledgement as Hindus by society, with formal conversion not necessary.	Quoted extensively and treated as a principal authority for the test of Hinduisation and for the allocation of the burden to prove any custom inconsistent with Hindu law.

Court's Reasoning and Analysis

The court addressed the issues together. It began with the burden principle: a plaintiff seeking relief based on tribal/customary law must establish the necessary materials to obtain that relief, meaning the plaintiffs bore the burden to prove that Mangra or his family were governed by tribal custom rather than Hindu law.

However, Sinha, J. noted that in the present case the allocation of onus was immaterial because the appellate court had considered the evidence of both sides and, even on the plaintiffs' own witnesses, concluded that the family had become Hinduised. The court summarized the specific factual findings relied upon by the appellate court as indicia of Hinduisation:

The daughters put vermilion on their heads at the time of their marriages.
Male family members used to keep a "beep teek" (cluster of hair on the centre of the head).
When Mangra died his body was first buried and thereafter his putla (idol or effigy) was burnt; heads of relations present at the cremation were shaved; funeral ceremonies including feasting were observed.
Lakshmi Puja was performed on Kartik Amavas; the family worshipped Debi, took part in Rath‑jatra, performed Mahabir Puja, put teeka on foreheads, and celebrated Holi.

On these factual materials the court below had found the family "sufficiently Hinduised" so that Hindu law of inheritance applied. Sinha, J. agreed with that approach and the sufficiency of the materials to support the finding.

Regarding the nature of the question whether a person or family is Hinduised, Sinha, J. considered competing authorities and arguments. He acknowledged that one judge (Bay, J., in the cited case) had characterized Hinduisation as a mixed question of law and fact, but Sinha, J. preferred the line of authorities which treated Hinduisation as a question of fact for the courts of fact (citing Kritibash Mahton, Harakhnath Ohdar, and others). He concluded that the question of whether a person is Hinduised — completely or otherwise — is a question of fact and therefore not appropriate for re‑examination in a second appeal where the courts below have considered evidence and reached factual findings.

The court also reiterated that where a community or family is found to be Hinduised, the presumption is that Hindu law governs inheritance unless a custom at variance with Hindu law is proved by the party asserting it.

Holding and Implications

Holding: APPEAL DISMISSED. The court held that the appeal was without merit and dismissed it with costs to respondent No. 1 (who had been defendant No. 1 in the original suit).

Implications:

The appellate court's factual finding that the family had become sufficiently Hinduised stands and the consequence is that Hindu law of inheritance applies to the succession of the properties in question (i.e., the daughters, not the agnatic relations, were entitled to succeed as held by the court below).
The plaintiffs' suit for recovery of possession was not successful in the appellate proceedings and remains dismissed as affirmed by this court.
The judgment reinforces the principle, as applied in this dispute, that (i) indicators of Hinduisation (social and ritual practices acknowledged by surrounding society) may suffice to bring a family within Hindu law for inheritance purposes; and (ii) where courts of fact have reached such a conclusion on evidence, it is not to be reopened in a second appeal. Any party seeking to rely on a custom inconsistent with Hindu law must prove that custom.
No novel legal principle was announced; the decision applies existing authorities to the facts and affirms the outcome below.

This summary is based exclusively on the information contained in the provided opinion and does not add or infer facts beyond that text.

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Baburam Rajeshwari Prasad Ojha And Ors. v. Deo Narain Sao And Ors.

JUDGMENT

Sinha, J.

1. The plaintiffs, who had brought a suit for recovery of possession of certain land, are the appellants. Their case was that the lands in suit belonged to one Mangra Uraon, who died leaving a widow, Pandro, and two daughters, who were married to defendant No. 1 one after the other. When Mangra died, he was succeeded by his widow, Pandro and the latter died leaving the two daughters aforesaid and the son-in-law. It appears that Pandro had executed a deed of sale in respect of the properties in question in favour of the son-in-law, defendant No. 1.

The plaintiffs, along with defendant No. 2, claimed agnatic relations of Mangra, and their case was that the parties are governed by the tribal custom inasmuch as they are not Hindus, and, as such, the plaintiffs and defendant No. 2 are the heirs of Mangra and not the daughters.

2. The defence, with which we are concerned, was that defendant No. 1 had taken the properties on transfer on behalf of his son and his wife; that there is no custom entitling the agnatic relations to get possession of the properties as heirs of the deceased in presence of the daughters and the daughter's son; that the plaintiffs and defendant No. 2 are not the heirs of Mangra, and that Mangra was governed by the Hindu law of inheritance.

3. The trial Court held that the plaintiffs and defendant No. 2, being the nearest agnates after the death of Mangra's widow, were the rightful heirs of Mangra; and in that view of the matter, the suit was decreed.

4. On appeal, the Court below has dismissed the suit on the finding that, although the parties are Uraon, a tribal race, they have become sufficiently Hinduised, and, therefore, the Hindu law of inheritance will prevail; in other words, the daughters, and not the agnatic relations, the plaintiffs and defendant No. 2, were entitled to succeed to the properties.

5. Mr. Chatterji, on behalf of the appellants, has submitted that the Court below has wrongly thrown the onus of proof on the plaintiffs, and that it would be held by this court that the materials on record are not sufficient to hold that Mangra Uraon had become Hinduised and the Hindu law of inheritance will prevail; in other words, it is submitted that the finding of the Court below that Mangra had become Hindu is not a question of fact, but a mixed- question of fact and law, and, therefore, open to review by this Court in second appeal.

6. I shall take up these questions together. The plaintiffs, in order to enable them to get the reliefs sought for in the plaint, must establish the necessary materials on which the reliefs could be given; in other words, it is for the plaintiffs to prove that Mangra or the family of Mangra Uraon, was governed by the tribal custom. But in this case the question of onus is of no importance in view of the fact that the evidence of both the parties has been considered by the Cburt below; and, even upon the evidence of the plaintiffs' wit nesses themselves, the Court has found that the paities had become sufficiently Hinduised.

The finding comes to. this that the daughters of Mangra put on vermilion on their heads at the time of their marriages; that the male members of the family used to beep teek (cluster of hair on the centre of the head); that when Mangra was dead, Ms body was buried first and, thereafter his putla was burnt; that the heads of all relations present at the cremation were shaved; that the funeral ceremony including feasting, was done; and that Lakshmi Puja is done on Kartik Amawas; that they also worship Debi, take part in Rath-jatra, perform Mahabir Puja, put teeka on their foreheads, and celebrate "Holi festival.

The Court below, upon these materials, found that the family had been Hinduised so as to attract the application of Hindu Law in matters of inheritance; and in that view of the matters, the plaintiffs were bound to fail and the suit was liable Co dismissal, and was dismissed.

7. The earliest case of this Court brought to my notice is that of Kriti bash Mahton v. Budhan Mahtani 6 Pat LT 604 : (AIR 1925 Pat 733 (A). There, the case was of Kurmi Mahtons of Chota Nagpur. The only question which was argued before this Court was whether the parties were governed by the Dayabhag school of Hindu law. Both the Courts below had found that the parties were so governed.

It was contended in this Court that the Court Below was not justified in coming to the conclusion that

"even if the parties were undoubtedly governed by Hindu Law, they were still governed by the Dayabhag School of Hindu Law"

. It was conceded by the learned counsel appearing on behalf of the defendants that if the parties were Hindu, It was unnecessary to go into the question whether the Dayabhag or the Mitakshara school of Hindu Law applied.

In that connection, his Lordship Dwarka Mitter C. J.; said that, in the circumstances, it was futile to send back the case

"to determine the very question of fact which was conceded by the learned Vakil who appeared on behalf of the defendants, ..."

, and the appeal was dismissed. Mac-pherson, J. had agreed and given his own judgment. In dealing with the matter at page 610 (of Pat. LT) : (at p. 737 of AIR) of the report, Mac-pherson, j. said as follows :

"In cases relating to inheritance among abori-ginals in Manbhum it is always necessary to enquire whether even if Hinduised (slightly, partially, or completely) they have abandoned the tribal custom as to inheritance (usually they have not, even where, as is unusual, Hinduisation is complete) and then if they have abandoned the tribal custom what particular school of Hindu Law they have adhered to."

This opinion of his Lordship was, to say the least with great respect, an obiter in view of the argument in the case to which reference was made in the judgment of the learned Chief Justice.

8. Another case in point of time is an un-reported decision in Srimatya Bidhu Mukhi Dasi, First Appeal No. 68 of 1925, D/- 8-6-1928 (Pat) (B) by Ross. J and Fazl Ali, J. (as he then was). Fazl Ali, J. had given a separate judgment, though agreeing with the conclusion arrived at by Ross, J., and while dealing with the matter, his Lordship made the following observation :--

'There are three classes of cases in which the question as to the burden of proving custom generally arises... There may be a third class of cases in which a person, who is admittedly not governed by Hifidu Law but by customary law, sets up the existence of a custom tribal or appertaining to the particular family and it is only upon proof of the existence of this custom that be can succeed.

The onus in such a case will be clearly on the person who relies on such custom. As was pointed out by Lord Buchmaster in the case of Abdul Hussain Khan v. Bibi Sona Bero ILR 45 Cal 450 : AIR 1917 PC 181 (C) when either party to a suit sets up a custom as a rule of decision it lies upon him to prove the custom, which he seeks to apply." In the case of Doman Sahu v. Buka, AIR 1931 Pat 198 (D), it has been said as follows :--

"The question whether a Mundari woman is or is not a Hindu is not very easy to decide. But the authorities are to the effect that the term 'Hindu' can safely- be applied to all those who claim to be Hindus and are regarded by the society sur-rounding them to be Hindus.... It is in evidence that the defendants, the issues of Mangri, were treated as Hindus and this could not have been the case if Mangri was treated as a non-Hindu."

This observation was made by Mohammed Noor,' J., and Courteney Terrell, C.J., who was a party to the decision, entirely agreed, although he had added a short paragraph of his own. in Harakhnath Ohdar v. Ganpat Rai ( AIR 1941 Pat 625:22 Pat LT 829 (E) the following passage occurs :

"A review of the cases considered above satisfies me that the remarks to those decisions, are of no help whatsoever in deciding as to the effect and construction of the grant of October, 1906; those cases only lay down that on the facts of each particular case It must be decided by the courts of fact whether the parties, who belong to the aboriginal tribe In the district of Ranchi or Manbhum, are governed by their own custom (to be proved) or by the Hindu Law, that is to say in each case the court of fact must find out whether the rule of primogeniture or the rule of agnatic succession, of the rule of Hindu law applies."

This case further observed in regard to the observations of Macpherson, J. in 6 Pat LT 694 : (AIR 1925 Pat 733 (A), mentioned above, that those ob-servations of his Lordship were expressly obiter.

9. The last case to which reference has been made is the case of Chunku, Manjhi v. Bhabani Manjhi, ILR 24 Pat 727 : ( AIR 1946 Pat 218) (F), re-lied upon by the Court below. In that case it was said by Ray J., who gave the leading judgment, as follows :

"The question, therefore, in every case whenever it arises, is whether the family or clan has been sufficiently Hinduised. If this question is decided in affirmative, the presumption will be that the parties are governed by Hindu Law. Any custom at variance with Hindu law has to be proved by the party invoking the same."

His Lordship summed up the position at page 737 (of ILR) : (at p.. 223 of AIR) of the report in the following words;--

"To sum up, the position is that it is possible in law that aborigines of non-Hindu origin can become sufficiently Hinduised so that in matters of inheritance and succession they are prima facie governed by the Hindu law except so far as any custom at variance with such law is proved; that for the purpose of Hinduisation any formal ceremony of conversion is not necessary; that the test as to whether people of non-Hindu origin have become Hindus out and out consists not in their following the religious rules of Srutis and Smritis or their completely giving themselves up to Brah-manical rules and rituals but in their acknowledging themselves to be Hindus and in adopting Hindu social usages, the retention of a few relics of their ante-Hinduism period notwithstanding.

In cases where complete Hinduisation is prov-ed, the parties are to be prima facie governed by the rules of the Hindu Law, and the burden of proving that any special custom obtained in the community either as a relic of their non-Hindu period or otherwise is upon the party who sets it up."

10. In my Judgment therefore, if a person calls himself a Hindu and is acknowledged as such by the society in which he lives, he is a Hindu and that it is not necessary for the parties becom ing Hindus to follow the religious rules of the Shrutis or the rules of the Smritis or to follow any rules or rituals, and that if a custom is relied upon by a party, the onus is upon that ,party to prove the custom. In my opinion, whether a per- son is Hinduised completely or otherwise is a ques tion of fact.

11. Mr. Chatterji drew my attention to certain observations in the judgment of Bay. J. in the case of AIR 1946 Pat 218:ILR 24 Pat 727 (P) to the effect that the question whether a person is Hinduised, either completely or partially, is a mixed question of law and fact, and, therefore, this Court, in second appeal, should go into that question itself. In that case the other learned Judge, namely, Fazl Ali, J., had said that, in view of the pleadings and the findings arrived at by the Courts below, which were based on evidence, he agreed that the view taken by the Courts below was correct; in other words, he did not treat the question as a mixed question of law and fact.

I am fortified in my view by the observations made in the case of 6 Pat LT 604 : AIR 1925 Pat 733 (A) & that of ( AIR 1941 Pat 625:22 Pat LT 829 (E), already mentioned, that this is a question of fact and, in my opinion, it cannot be gone into over again by the Court of second appeal.

12. In the result, I would hold that the appeal is without merit, and it must be dismissed with costs to respondent No. 1 who was defendant No. 1 in the case.

Baburam Rajeshwari Prasad Ojha And Ors. v. Deo Narain Sao And Ors.

Judgment Summary — Sinha, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. Chatterji)

Respondents' / Defence Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Baburam Rajeshwari Prasad Ojha And Ors. v. Deo Narain Sao And Ors.

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