ORDER 1. Substantial question of law which arises for consideration in this Second Appeal which is directed against the judgment and decree dated 11.7.1998 in Civil Appeal No.11A/1997 whereby, the first appellate Court has affirmed the dismissal of Civil Suit No.96A/1994, are : 1. Whether in view of the fact that it was not disputed that Ramdeen married Shallobai in Churi Form, the Court below was right in dismissing the suit of the appellant on the ground that custom of succession has not been proved ? 2. Whether in absence of proof of a custom the appellant shall be entitled to a share in the suit property by virtue of will dated 10.1.1984 executed by Shallobai or otherwise on the basis that she will be entitled to succeed to the half of the property of Ramdeen as his second wife under section 6 of the C.P Laws Act ? 2. Appellant /plaintiff brought a suit for declaration of title and permanent injunction in respect of land situated at Bhilania bearing Survey Nos.17, 80, 138, 157, 160 and 162 admeasuring 1.34 hectares on the plea that he and the defendant are Gond by caste and are related as brother and sister, and are governed by customs prevalent in Gond Tribe and the provisions of Hindu Law are not applicable to their tribe. That the suit property was owned by Ramdeen Gond. The defendant is the daughter of Ramdeen from her first wife. That after the death of her first wife, Ramdeen had married Shallobai. The plaintiff who is son of Shallobai was 5-8 years at the time of her marriage with Ramdeen and Ramdeeen had adopted the plaintiff. That Ramdeen expired in the year 1983 and Shallobai in the year 1988. That after the death of Ramdeen, Shallobai and the defendant (daughter of Ramdeen) were the joint owner of the suit property. That Shallobai bequeathed her share in suit property in the name of the plaintiff. However, in the year 1993 the defendant obstructed the plaintiff from cultivating the land bequeathed in his favour which led him to file the suit for declaration and permanent injunction. 3. Defendant, however, denied the plaint allegations contending inter alia that said Shallobai was not married to Ramdeen, nor the plaintiff was ever adopted as son by Ramdeen. However, in the year 1993 the defendant obstructed the plaintiff from cultivating the land bequeathed in his favour which led him to file the suit for declaration and permanent injunction. 3. Defendant, however, denied the plaint allegations contending inter alia that said Shallobai was not married to Ramdeen, nor the plaintiff was ever adopted as son by Ramdeen. That the suit property being self acquired property of Ramdeen, after his death, the defendant, sole heir, succeeded to the suit property. The claim it was urged being baseless deserves to be negatived. 4. Pleadings and counter pleadings, led the trial Court frame following issues: 1- D;k oknh oknxzLr Hkwfe dk Hkwfe Lokeh gS \ 2- D;k oknxzLr Hkwfe dk Hkwfe Lokeh jkenhu Fkk \ 3- D;k oknh dks jkenhu rFkk mldh iRuh ikSyksckbZ us xksn iq= cuk;k gS \ 4- D;k oknxzLr Hkwfe ij oknh dk dCtk gS \ 5- D;k izfroknh oknxzLr Hkwfe esa oknh ds dCts esa gLrk{kj dj jgs gSa \ 6- D;k oknh dk okn ifjlhek dky ls okfnr gS \ 7- lgk;rk ,oa O;; \ 8- D;k 'kSyksckbZ us fnukad 10-1-1984 dk oknh ds i{k esa olh;rukek fu"ikfnr fd;k \ ;fn gk¡ rks izHkko \ 5. As to issue No.3 as to whether the plaintiff was adopted as son by Ramdeen, the trial Court found that the plaintiff could not establish of his being adopted as son. As to issue No.3 as to whether the plaintiff was adopted as son by Ramdeen, the trial Court found that the plaintiff could not establish of his being adopted as son. This is borne out from the findings in paragraph 7 which is in following terms:- ^^7- i{kdkj xksaM+ tkfr gSA vkfnoklh lekt esa fgUnw mÙkjkf/kdkjh vf/kfu;e ds izko/kku ykxw ugha gksrs] ,slk vfHkopu oknh }kjk fd;k x;k gSA izfroknh dh vksj ls vf/koDrk }kjk fd, x, izfrijh{k.k esa lruyky ls dafMdk dzekad 17 esa tks rF; miof.kZr fd, gS vghj] iudk ,ao <hej tkfr esa vkSj vkfnoklh lekt esa tks jhfrfjokt gS muesa dksbZ QdZ ugha gSA bl rF; ds vk/kkj ij fgUnw fof/k dk ykxw gksus okyk rF; ekU; fd;k tkuk Fkk] viukbZ xbZ ;qfDr dks lEcy nsuk gksxkA ;g ;qfDr jhfr ;k izFkk tks vkfnoklh lekt esa jgh gS] ml ij v/;kjksgh izHkko Mkyus okys lkfcr gksxh ,slh fLFkfr esa ;g iz'u dh i{kdkj vFkkZr~ oknh ,oa izfroknh fclkfgu vkfnoklh gS] buesa jhfrfjokt ds vk/kkj ij mÙkjkf/kdkjh vkSj laifÙk dk U;k; xeu gksrk gS] ,slk ekurs gq, ;g fd oknxzLr Hkwfe jkenhu dh FkhA ;g mHk; i{k dh vksj ls Lohdkj fd;k x;k gSA ,slh fLFkfr esa okn in Øekad 2 dk mÙkj gk¡ esa fn;k tkrk gSA** 6. In Appeal, the Appellant did not dispute this finding as is evident from paragraph 9 of the judgment in appeal which records:- ^^9- vihykFkhZ n'kjFk dks jkenhu dk xksn iq= gksuk v/khuLFk U;k;ky; us okniz'u Øekad 3 ds fu"d"kZ esa fl) u gksuk ik;k gSA vafre rdZ ds nkSjku vihykFkhZ ds fo}ku vf/koDrk ,l-ds- dukSts us mDr fu"d"kZ dks lgh gksuk Lohdkj fd;k gSA bl izdkj xksn iq= ds vk/kkj ij vihykFkhZ dks LoRo izkIr gksus dk iz'u 'ks"k ugha jg tkrkA** 7. As to the issue regarding bequeathment of property in favour of the plaintiff, the trial Court on the material evidence on record though found that Ramdeen took Shallobai as his wife ¼iSjkxzkQ 8 % 'kSyksckbZ dks jkenhu us iRuh cuk;k FkkA bl ckr dh iqf"V lk{; ls gksrh gS½ - However, it found that the Ramdeen having expired in the year 1983 left Shallobai and the defendant as joint owner and being the joint owner and that the customs followed in the Gond Tribe being akin to Hindu Custom, held that it was not within her right, without there being express partition to have bequeathed the property in favour of the plaintiff. No custom was found to be proved that by virtue of same and as a thumb after the death of husband, the wife get half share in his property. No custom was found to be proved that by virtue of same and as a thumb after the death of husband, the wife get half share in his property. The trial Court found:- **9- tgk¡ rd okn in Øekad 1 vkSj 9 dk loky gSaA blesa ;g rF; dh nwljh iRuh dks Hkh ifr ds ej tkus ij larku ds lkFk gd izkIr gksrk gS ;s rF; ;ksX; gSA lruyky us dafMdk Øekad 6 esa bldh crkrk gS oknh Hkh bl rF; dks O;Dr djrk gSA izfroknh lk{; ls bl fLFkfr esa foijhr rF; O;Dr fd, x, gSA oknxzLr Hkwfedk HkwfeLokeh jkenhu jgk gSA 'kSyksckbZ dks jkenhu us iRuh cuk;k FkkA bl rF; dh iqf"V lk{; ls gksrh gSA jkenhu dh e`R;q lu~ 1983 esa gks xbZA ,slh fLFkfr esa oknxzLr Hkwfe dk U;k; xeu jkenhu ds mÙkjkf/kdkjh vFkkZr~ mldh iq=h tks dkS'kY;kckbZ ls mRiUu gq;h gS fclkfgu ckbZ izfroknh Øekad 1 rFkk 'kSyksckbZ ij gksxkA 'kSyksckbZ vksj chlkfgu la;qDr :i ls oknxzLr Hkwfe esa gd~nkj ;fn ekus tkrs gSA rc o"kZ 1988 esa 'kSyksckbZ dh e`R;q gks tkrh gS 'kSyksckbZ us olh;rukek iz-ih-&4 fu"ikfnr fnukad 10-1-1984 esa fd;k gSA o"kZ 1983 esa oknxzLr Hkwfe nksuksa dks feyh gSA o"kZ 1984 rd ;g la;qDr :i ls jgh gS ,slh fLFkfr esa tc Hkwfe dk caVokjk ugha gqvk] rc olh;rukek 1@2 fgLls dk fdl :i esa fd, D;k fd;k x;k] lgh fLFkfr 'kSyksckbZ dks vfèkd`r ugha djrh gSA i{kdkjksa ds chp ;|fi fgUnw fof/k ds iw.kZ :i ls ykxw ugha gksrh] fdUrq tgk¡ n'kjFk dafMdk dzekad 13 esa ;g crkrk gS fd fgUnw /keZ o xksMh /keZ esa dksbZ QdZ ugha gSA lHkh esa lkjh jhfr fjokt fgUnqvksa ls jgrs gSA ogka bruk bl :i esa fd tgk¡ iwjh rkSj ls izFkk i{kdkjksa ds chp fl) ugha gks ikrh] ogh fl)akr tks fd mÙkjkf/kdkjh ls lacaf/kr gS mls ekurs gq, oknxzLr Hkwfe dks i{kdkjksa ds chp la;qDr ifjokj dh Hkwfe ekuk tk jgk gS] rc oknxzLr Hkwfedk olh;rukek ds ek/;e ls varj.k dh tk ldus ds fy;s 'kSyksckbZ dks U;k; laxr :i ls vf/kd`r ugha ekuk tk ldrkA** 8. Even the appellate Court after considering the pleadings contained in paragraph 4 of the plaint and the statement of PW2 Sutanlal and PW3 Jogaram found that it could not be established that customary plaintiff's mother acquired any right in the property of Ramdeen. Even the appellate Court after considering the pleadings contained in paragraph 4 of the plaint and the statement of PW2 Sutanlal and PW3 Jogaram found that it could not be established that customary plaintiff's mother acquired any right in the property of Ramdeen. The appellate Court analysed the pleadings and statements of plaintiff's witnesses and concluded that:- ^^12- vihykFkhZ us okni= dh dafMdk c&4@esa fnukad 23-7-2016 dks ;g la'kksèku fd;k gS fd] xksaMksa esa ;g izFkk gS fd ;fn mldh iRuh nwljk enZ cukdj pyh tkrh gS rks ,slk iq#"k xkasM tkfr ds nwljh efgyk dks iRuh cukdj j[k ldrk gS] vkSj ,slh efgyk iq#"k dh e`R;q ds ckn mldh laifÙk ds mÙkjkf/kdkfj.kh gksrh gSA mDr dLVe dks fl) djus ds fy;s vihykFkhZ@oknh }kjk v/khuLFk U;k;ky; esa lruyky ok-lk-2 rFkk tksxh jke ok-lk-3 ds c;ku djk, gSaA lruyky oknh dk pkpk gS] tSlk fd mlus vius izfr izfrijh{k.k ds dafMdk 10 esa Lohdkj fd;k gSA lruyky us crk;k gS fd] xksaM+ tkfr esa pwM+h igukbZ gqbZ vkSjr dks Hkh laifÙk esa gd~ feyrk gSA mlus mnkgj.k Lo:i nqdyh ckbZ dks pr: dh pwM+h igukbZ vkSjr ds :i esa gd~ feyuk crk;k okn Hkwfe ij dCtk gksuk Hkh ugha ik;kA iz-ih-4 ds olh;rukek dks izekf.kr ikrs gq, Hkh bl olh;rukes ls dksbZ LoRo vihykFkhZ@oknh ds i{k esa mRiUu u gksuk ik;k x;k vkSj bl dkj.k oknh dh okn Hkwfe dk Lokeh gksuk vizekf.kr ikrs gq, okn fujLr dj fn;kA** 9. Trite it is that a party who sets up a custom has to prove it. It has been held in Salekh Chand (Dead) By LRs v. Satya Gupta [ (2008)13 SCC 119 ]: 22. It is incumbent on party setting up a custom to allege and prove the custom on which he relies. Custom cannot be extended by analogy. It must be established inductively and not by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well established law that custom cannot be enlarged by parity of reasoning. 23. Custom cannot be extended by analogy. It must be established inductively and not by a priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one custom cannot be deduced from another. It is a well established law that custom cannot be enlarged by parity of reasoning. 23. Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the Court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them; but the decision would not in that case be a satisfactory precedent if in any future suit between other parties fuller evidence with regard to the alleged custom should be forthcoming. A judgment relating to the existence of a custom is admissible to corroborate the evidence adduced to prove such custom in another case. Where, however a custom is repeatedly brought to the notice of the Courts, the Courts, may hold that the custom was introduced into law without the necessity of proof in each individual case. 24. Custom is a rule which in a particular family or a particular class or community or in a particular district has from long use, obtained the force of law. Coming to the facts of the case PW1 did not speak any thing on the position either of a local custom or of a custom or usage by the community, PW2, Murari Lal claimed to be witness of the ceremony of adoption he was brother-in-law of Jagannath son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at the time of deposition in the Court. He did not speak a word either with regard to the local custom or the custom of the community. PW3 as observed by the lower appellate Court was only 43 years' old at the time of his deposition where as the adoption had taken place around 60 years back. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by PW2, Murari Lal. He himself did not speak of such a custom. He has, of course, spoken about the custom but that is not on his personal knowledge and this is only on the information given by PW2, Murari Lal. He himself did not speak of such a custom. The evidence of a plaintiff was thus insufficient to prove the usage or custom prevalent either in township of Hapur and around it or in the community of Vaish. ... 26. A custom, in order to be binding must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom in order that it may be legal and binding, must have been used long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove 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 submitted to as the established governing rule of a particular locality. 27. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i- am or Manual of Customary Law.” 10. In the case at hand, having failed to establish the custom in Gond Tribe of a widow succeeding to half of the share in the property of husband, the bequeathment of half of the share in the suit property by Shallobai in favour of plaintiff did not confer any right, title in him as no right, title existed in favour of Shallobai. 11. In view whereof, the concurrent findings and the conclusion arrived at by both the Courts cannot be faulted with. 12. The reliance placed on the decisions in Jahuri Sah v. Dwarika Prasad Jhunjhun-wala [ AIR 1967 SC 109 ], and Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi [ AIR 1960 SC 100 ], are of no assistance to the appellant. Because the appellant has failed to establish that by succession a widow in Gond Tribe is entitled for half share in the property of her husband. Because the appellant has failed to establish that by succession a widow in Gond Tribe is entitled for half share in the property of her husband. Proviso to sub-rule (1) of rule 5 of Order 8 of the Code of Civil Procedure, 1908 carves out an exception to general rule of non traverse contained in rule 5 of Order 8. It confers discretion on the Court to require any fact said to have been admitted to be proved otherwise than by such admission. 13. It has been held in Badat and Co. Bombat v. East India Trading Co. [ AIR 1964 SC 538 ] : 11. ... The first paragraph of rule 5 is a reproduction of O.XIX, rule 13, of the English rules made under the Judicature Acts. But in mofussil Courts in India, where pleadings were not precisely drawn, it was found in practice that if they were strictly construed in terms of the said provisions, grave injustice would be done to parties with genuine claims. To do 'Justice between those parties, for which Courts are intended, the rigor of rule 5 has been modified by the introduction of the proviso thereto. Under that proviso the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Courts, presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice.......... In construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to rely upon them for non- suiting the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the Justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality, and the traditions and conventions of a Court wherein such pleadings are filed.” 14. In Smt. Sarla Devi w/o Dwarkaprasad v. Birendrasingh [ AIR 1961 MP 127 ], a Division Bench of our High Court observed : “27. ..... In Smt. Sarla Devi w/o Dwarkaprasad v. Birendrasingh [ AIR 1961 MP 127 ], a Division Bench of our High Court observed : “27. ..... While it is true that the allegations of fact, which are not denied specifically or by necessary implication, may be accepted to have been admitted, proviso to rule 5 of Order VIII CPC, provides that the Court may, in its discretion, require any fact so admitted to be proved otherwise that by such admission. … Further, as held by the Judicial Committee of the Privy Council in Anand Kuar v. Tansukh [ILR 11 All 396 (PC)], when a point has been the subject of an issue, the parties shall not be heard to say that the point was not disputed and so required no proof.” 15. Further, in Hari Singh v. Dharam Singh [AIR 1980 Delhi 316], it has been held by Delhi High Court :- “8. ..........It is true that the conjoint effect of rules 3, 4 and 5 of Order 8 of the Code is that a defendant who wants to deny the facts must do so clearly and explicitly and a vague or evasive reply by the defendant cannot be considered to be a denial of fact alleged by the plaintiffs. Thus, statement that "the plaintiff is put to proof of the several allegations in the plaint" or that "he does not admit correctness of the averments contained in the plaint" is generally speaking not sufficient denial within the meaning of rules 3 and 4 of Order 8 and by virtue of rule 5, the Court may relieve the plaintiff of the obligation of proving such allegations in his plaint as are neither specifically denied nor stated to be not admitted in the written statement. However, the rule as to non-traverse in written statement has not to be applied mechanically without applying the judicial mind. It is not a rule of thumb to be followed blindly. This is amply clear from the proviso to sub- rule (1) of rule 5 which confers discretion on the Court to require any fact "so admitted" to be proved otherwise than by such admission.” 16. In view of the aforesaid factual situation and the principles of law enumerated above, the substantial questions of law are answered against the plaintiff. 17. Consequently, the appeal fails and is dismissed. No costs.