Mohari Mahto v. Mokaram Mahto — 1963 DIGILAW 49 (PAT)

Judgment K.Ahmad, J. 1. Admittedly, the properties in suit, which are given in schedules A and B of the plaint, were originally owned and possessed by one Bodhnath Mahton of Chhotanagpur, that means, a member of aboriginal tribes of non-aryan descent. Bodhnath Mahton is said to have died sometime in 1946, leaving behind him his widow Mosammat Mahrangi arid a daughter Salo. The case of the plaintiff, who is the respondent here, is that on the death of Bodhnath Mahton, all his properties including the properties in dispute was inherited by his widow Mosammat Mahrangi. Thereafter Mosammat Mahrangi is said to have executed a registered deed of gift in respect of the properties in dispute on the 27th March 1948 in favour of his daughter Salo and her two daughters sons, Baijnath Mahlon and Raghunath Mahto. Thus since then, according to the plaintiff, it were the donees who were the owners of these properties and had been in possession thereof. It is said that on the 25th May, 1948, these donees executed two registered documents, both in favour of the plaintiff. By one of them, a permanent Rayati lease was created in respect of the lands of Khata No. 68, which is referred to in schedule A of the plaint, and by the other, the lands of Khata No. 73, which form the subject-matter of schedule B of the plaint, were sold. The plaintiff asserts that as such he has been in possession of the lands of these two khatas since then. But it is said that in December 1959, his possession was challenged by the defendants, who are the admitted agnates of Bodhnath Mahton and the appellants before me. Accordingly, the suit has been brought for declaration of title and confirmation or in the alternative recovery of possession in respect of the lands of the aforesaid two khatas. 2. The main defence set up by the defendants is that according to the custom prevailing in the community of the Kurmi Mahtons of Chotanagpur, females are excluded from inheritance. Further, it has also been pleaded that on the death of Bodhnath Mahton, his properties were not inherited by Mosammat Maharangi, but by the agnates, namely, the defendants. Then there is also the defence taken that the suit, as constituted, is barred by limitation and adverse possession. Further, it has also been pleaded that on the death of Bodhnath Mahton, his properties were not inherited by Mosammat Maharangi, but by the agnates, namely, the defendants. Then there is also the defence taken that the suit, as constituted, is barred by limitation and adverse possession. It, however, appears that though an issue was framed in regard to the question of limitation and adverse possession, but it has not been pressed in either of the two Courts below, and the case has been disposed of mainly on the consideration whether the females of Kurmi Mahton of Chotanagpur are excluded from inheritance by custom. On this point, the two Courts below have come to conflicting conclusions. The conclusion arrived at by the trial Court was: "......the plaintiff has failed to prove his title over the suit land. He acquired the suit land from Mosst. Salo who hereself had no title over the suit land. It is not for him to contend that as he is in possession of the suit land, his title may be declared. Even if it be accepted for a moment that the plaintiff is in possession of the suit land, he can get the decree in his favour only when the defendants do not establish a better title to the disputed property. The defendants, in this case, have been able to establish that they, being the agnates of, Bodhnath, are the rightful owner of the suit land". In coming to this conclusion, reliance has been placed by the trial Court on the evidence of D. Ws. 1, 2, 3, 4 and 5, as also on certain admissions said to have been made by P. Ws. 3, 5 and 8, Further, reference in this connection has also been made to the admitted possession of the defendants over some of the other lands of Bodhnath. Accordingly, the suit at the trial was dismissed. 3. In appeal, that judgment has been reversed. 3, 5 and 8, Further, reference in this connection has also been made to the admitted possession of the defendants over some of the other lands of Bodhnath. Accordingly, the suit at the trial was dismissed. 3. In appeal, that judgment has been reversed. The lower appellate Court has approached the case on the assumption that the Kurmi Mahtons of Chotanagpur are Hindus and, therefore, the presumption is in favour of the plaintiff that on the death of Bodhnath Mahton, his properties were inherited by his widow Mosammat Mahrangi, and unless that is rebutted by the defendants by proving that the Kurmi Mahtons of Chotanagpur are not governed by the Hindu law in the matter of succession but by certain custom, whereunder a widow and a daughter are not entitled to inheritance, that presumption in law is sufficient to secure a decree in favour of the plaintiff. Thereafter, on discussion, it has disbelieved the evidence of the D. Ws. 1 to 6 and accepted the evidence of P. Ws. 8, 9 and 10. Accordingly, the suit in the appellate Court has been decreed. 4. In this Court, the conclusion arrived at by the Court of appeal below has been attacked mainly on two grounds : (1) that the Court of appeal below has erred in law in presuming that the Kurmi Mahtons of Chotanagpur in the matter of succession are governed by the Hindu Law, and (2) that the Court of appeal below in reversing the judgment of the trial Court has erred in not taking into consideration some of the admissions said to have been made by P. Ws. 3, 5 and 8, as also the admitted fact that some other lands of Bodhnath Mahton are in possession of the defendants, 5. It is conceded by Mr. A.B.N. Sinha appearing for the plaintiff respondent that in the plaint there is no specific averment made that the Kurmi Mahton of Chotanagpur in the matter of succession are governed by the Hindu Law. Perhaps for that reason there was no issue framed on that point, nor there is any discussion in respect thereof, at least in the judgment of the trial Court . But the lower appellate Court in its judgment has observed that : "In the presant suit no controversy arose as to whether the Kurmi Mahtons of Chotanagpur are aboriginals or Hindus". But the lower appellate Court in its judgment has observed that : "In the presant suit no controversy arose as to whether the Kurmi Mahtons of Chotanagpur are aboriginals or Hindus". Relying however on the admission said to have been made by D. W. 1 in the course of his cross-examination and on the decision in Ganesh Mahto V/s. Shib Charan Mahato, ILR 11 Pat 139: (AIR 1931 Pat 305), the Court of appeal below has proceeded on the footing that the Kurmi Mahtons of Chotanagpur are in the matter of succession governed by the Hindu Law. Mr. Choudhary appearing for the defendants appellants has strongly challenged this approach of the case made by the lower appellate Court. The submission made by the learned counsel is that there is no presumption in law that the Kurmi Mahtons of Chotanagpur in the matter of succession are governed by the Hindu law, and that it is always a question of fact which has to be proved on the pleadings and evidence of the parties whether a particular Kurmi Mahton of Chotanagpur is governed in the matter of succession by the Hindu Law or not. In support of this contention reliance has been placed by the learned counsel on the decision in Krittibash Mahton V/s. Budhan Mahtani, AIR 1925 Pat 733, Harakhnath Ohdar V/s. Ganpat Rai, 22 Pat LT 829 : (AIR 1941 Pat 625) and also on an unreported decision of this Court given by Fazl Ali, J. (as he then was) in the case Bldhu Mukhj Dasi V/s. Kamala Kanta Singh, F. A. No. 68 of 1925 D/- 8-6-1928 (Pat). In the first case, Macpherson, J. in his judgment has observed : "Now it does not admit of the faintest doubt that the Kurmi-Mahtons of the Manbhum District are racially an aboriginal tribe. They are the most numerous community (whether tribe or caste) of that district from which they have overflowed into the neighbouring districts. They have no concern whatever except in the accent of name with the Dravido-Aryan agricultural and menial caste of Bihar proper. This important and numerous aboriginal tribe of agriculturists has, however, moved substantially towards Hinduism and rather faster than the other great tribes of the district, such as the Santals and Bhumijs. They have no concern whatever except in the accent of name with the Dravido-Aryan agricultural and menial caste of Bihar proper. This important and numerous aboriginal tribe of agriculturists has, however, moved substantially towards Hinduism and rather faster than the other great tribes of the district, such as the Santals and Bhumijs. There is, of course, a good deal of variation in the stages that have been reached in different parts of the district and neighbouring districts in respect of the adoption or rather superimposition of Hindu practices, and some areas lag behind. Notification No. 550 of the 2nd May 1913, under Sec.332 of the Indian Succession Act, 1865, which withdrew the Act with retrospective effect from, among other tribes, the tribe "known as Kurmis" (that is the Kurmi-Mahto tribe of Chota Nagpur, as distinguished from the entirely distinct Bihari caste of Kurmis) on the ground that they have customary rules of succession and inheritance incompatible with the provisions of that Act, indicates that the whole tribe at least had not then become Hindu; if all Kurmi-Mahtos were Hindus then the notification would have been unnecessary as the Act does not apply to Hindus". 6. In the second case, Manohar Lall, J. while dealing with this point has observed at page 846 (of Pat LT) : (at p. 633 of AIR) that: "A review of the cases considered above satisfies me that the remarks in 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 or the rule of Hindu Law applies". 7. And in the last case, the relevant observation made by Fazl Ali, J. on this point is in these words: "There are three classes of cases in which the question as to the burden of proving custom generally arises. 7. And in the last case, the relevant observation made by Fazl Ali, J. on this point is in these words: "There are three classes of cases in which the question as to the burden of proving custom generally arises. When the member of a family governed by the Hindu Law sets up a custom derogatory to that law the burden lies upon him to prove the custom. If, however, a family is not governed by the Hindu Law and it is alleged by any member that a particular Hindu usage or a rule of Hindu Law has been adopted by the family, the burden lies upon him to prove the usage. There may be a third class of cases in which a person, who is admittedly not governed by Hindu 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 he 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 Buckmaster in the case of Abdul Hussain Khan V/s. Bibi Sona Dero, ILR 45 Cal 450 : (AIR 1917 PC 181) 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." 8. Relying on these observations made in the aforesaid three cases, Mr. Chaudhary has contended that in the absence of any pleading made by the parties to that effect and in the absence of any issue framed in regard thereto, and in the absence of any positive evidence given by the plaintiff in support of his case that among the Kurmi Mahtons of Chotanagpur, a person on his death in the absence of any male issue is succeeded by his widow, the Court of appeal below should not have proceeded on the assumption that Kurmi Mahtons of Chotanagpur are governed by the Hindu Law and as such Mussammat Mahrangi was entitled to succeed her husband on his death and then should not have decided the case on the footing that the defendants have failed to establish the custom as pleaded by them. In other words, the submission made by the Mr. In other words, the submission made by the Mr. Choudhary is that the Court of appeal below in coming to its judgment has wrongly placed the onus on the defendants, and as such, as laid down in Peddi Reddi Jogi Reddi V/s. Chinnabbi Reddi, AIR 1929 PC 13, the finding arrived at by it is open to be attacked in second appeal and is not sustainable in law. There can be no doubt that the decision given by the lower appellate Court is essentially based on the footing that the defendants have failed to discharge the onus which lay on them to prove their plea of custom, as is evident from the following observation made by it in paragraph 13 of the judgment under appeal: "The above discussion will, therefore, go to show that the learned munsif was not correct in recording the finding that the females in the community of Kurmi Mahtons are excluded from inheritance. There is want of sufficient evidence to come to the conclusion that such a custom exists under which females are excluded from inheritance. I, therefore, hold that there is no custom prevalent among the Kurmi Mahtons of Chotanagpur, particularly among the parties to the suit under which females are excluded from inheritance. The finding of the learned Munsif on this point, is therefore, reversed." 9. That being so, I have no doubt in my mind that if the assumption made by the lower appellate Court that the Kurmi Mahtons of Chotanagpur are in the matter of succession governed by the Hindu Law is held to be not correct, then the case has to be remanded back for a fresh hearing in the light of the correct rule of onus. That means, in that case, it will be for the plaintiff to establish that among the Kurmi Mahtons of Chotanagpur, the property on the death of a male, in the absence of any issue, is inherited by his widow as laid down in the Hindu Law, and if he fails to prove that, the relief sought for declaration of title will have to be negatived on that ground alone. 10. Mr. 10. Mr. Sinha, however, has submitted that though there is no specific pleading made in that regard by the plaintiff in the plaint, but the Court of appeal below in the light of the law as laid down in the case of ILR 11 Pat 139 : (AIR 1931 Pat 305) and in the light of the admission made by D. W. 1 in his cross-examination, was right in proceeding on the assumption that the Kurmi Mahtons of Chotanagpur are governed in the matter of succession by the Hindu Law. Further, in support of this view, reliance has also been placed by Mr. Sinha on the decisions in Chunku Manjhi V/s. Bhabani Majhan, AIR 1946 Pat 218, Budhu Majhi V/s. Dukhan Majhi, AIR 1956 Pat 123 and on certain passages of Mayne on Hindu Law and Usage (Eleventh Edition) at page 88 and of Raghavachariar on Hindu Law (Fourth Edition) at page 21. So far as the decisions in AIR 1946 Pat 218 and AIR 1956 Pat 123 are concerned, they relate not to the case of the Kurmi Mahtons of Chotanagpur, but to that of Santals of Chotanagpur. But apart from that, I think, none of these decisions lays down that there is any presumption in favour of the Kurmi Mahtons of Chotanagpur being governed in the matter of succession by the Hindu Law. Ray, J. in the case of AIR 1946 Pat 218 has observed: "To sum up, the position is that it is possible in law that aborigins 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 the Srutis and Smritis or their completely giving themselves up to Brahmanical 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 proved, 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." Therefore, the principle underlying this case is that the parties are to be prima facie taken as governed by the rules of the Hindu Law only in cases where complete Hinduisation is proved. The decision in AIR 1956 Pat 123 given by Choudhary, J. sitting singly, is also based substantially on the same principle as laid down in AIR 1946 Pat 218. That being so, none of these two decisions, apart from the question that they relate to Santals, lead to the proposition that there is any presumption in favour of the Kurmi Mahtons of Chotanagpur being in the matter of succession governed by the Hindu Law. 11. Then I come to the decision in ILR 11 Pat 139 : (AIR 1931 Pat 305). Therein there was a pleading made to the effect that "the family had become Hindus, had adopted the Hindu religion and were governed by the Hindu Law of succession and inheritance". In the light of that pleading and challenge given in reply thereto, the lower appellate Court accepted that part of the case, and thereafter it was held therein that "such Kurmi Mahtons of Chotanagpur as have become Hindus and have adopted the Hindu religion will be presumed to be governed by the ordinary Hindu Law of succession and inheritance, and the onus of proving special custom or special rule of succession prevailing among them lies on the person who alleges it." In other words, the rule laid down therein is based on the proof of the fact that the Kurmi Mahtons of Chotanagpur involved in that case had become Hindus and had adopted the Hindu religion. The Court, therefore, in the light of that finding came to the conclusion that in that case there was a presumption in their favour that they were governed by the ordinary Hindu Law of succession. 12 In this case unfortunately, as has been conceded by Mr. Sinha, there is no pleading at all made in the plaint that the family of Bodhnath Mahton had become Hindu and had adopted the Hindu religion. 12 In this case unfortunately, as has been conceded by Mr. Sinha, there is no pleading at all made in the plaint that the family of Bodhnath Mahton had become Hindu and had adopted the Hindu religion. Therefore, in the absence of that pleading, there can be no presumption in favour of the plaintiff that the family of Bodhnath at any time was governed in the matter of succession by the Hindu Law. It is true that in the passages referred to by Mr. Sinha from Maynes Hindu Law at page 88 and from Raghavachariars Hindu Law at page 21, the comments made by the learned authors are in wide terms and susceptible to the interpretation as contended by Mr. Sinha. But in some of the authorities which have been referred to in support of the view stated by the learned authors, the law laid down does not go to that extent. Therefore, to me it appears that the correct rule of law to be followed in such a case is that if a person claiming title from a Kurmi Mahton of Chotanagpur proves that he had become Hindu and had adopted the Hindu religion, then alone there should be a presumption drawn in his favour that he was governed in the matter of succession by the Hindu Law, otherwise it will be for the plaintiff who comes for the declaration of title in his favour to establish by cogent evidence what he asserts. If, on the other hand, there is any custom pleaded in the written statement, then the onus will be on the defendant to prove that custom. That being the position, I think, the onus, on the facts of the present case, was wrongly placed by the Court of appeal below on the defendants, in the absence of any finding to the effect that Bodhnath Mahton had become Hindu or had adopted the Hindu religion. The decision in such a case should have been given in the light of the assertion made by the plaintiff and on the evidence brought by him in support thereof. 13. Next I come to the other contention raised by Mr. Choudhary. In my opinion, in that respect also, the submission made by the learned counsel is not without substance. The decision in such a case should have been given in the light of the assertion made by the plaintiff and on the evidence brought by him in support thereof. 13. Next I come to the other contention raised by Mr. Choudhary. In my opinion, in that respect also, the submission made by the learned counsel is not without substance. The trial Court in support of its finding has clearly laid reliance on some of the admission said to have been made by P. Ws. 3, 5 and 8, as also on the possession of the defendants in regard to other lands of Bodhnath. After all, admissions go a long way to establish a case unless rebutted. Therefore, the Court of appeal below in reversing the judgment of the trial Court should not have ignored the admissions said to have been made by P. Ws. 3, 5 and 8, which had been relied upon by the trial Court in support of its conclusion. Similarly, so far as the possession of the defendants in respect of some other lands of Bodhnath is concerned, that too does not seem to have been taken into consideration by the Court below, though P. Ws. 1 and 5 are said to have admitted that fact in their evidence. Therefore, in the absence of those considerations, even on merit, the finding as arrived at by the lower appellate Court cannot be sustained in law. 14. Accordingly, the appeal is allowed, the judgment and decree under appeal are set aside and the case is sent back to the Court of appeal below for a fresh hearing in the light of the discussions made above. But in the circumstances of the case, there will be no order for costs.