D.V. Shylendra Kumar, J.
1. This second appeal udder Section 100 of Code of Civil Procedure involves two short but interesting questions of law. The first is as to whether the customary practice prevalent in a community can prevail over the statutory provisions, particularly a customary practice of aliya Santana can prevail over the provisions of Section 8 of the Hindu Succession Act, 1956 [for short, the Act], and secondly as to whether the parties by their conduct start a custom afresh, though such custom was not prevalent earlier but sought to be followed by the act of parties?
2. This second appeal is by the plaintiff in O.S. No. 101 of 1992, on the file of court of Munsiff at Karwar, praying for plaintiffs 1/6th share in the suit schedule properties and for division by metes and bounds, which suit was rightly decreed by the trial court came to be reversed in the R.A. No. 7 of 1997, on the file of court of Principal Civil Judge (Sr Dn), Karwar, wherein the learned judge of the lower appellate court has reversed the judgment and decree of the trial court and has dismissed the suit. Therefore this second appeal.
3. Plaintiff claiming to be a daughter of one Bhanu Naik sued for her share in the properties that were left behind by her father, comprising of five suit items, and contending that while in respect of two suit items i.e. suit item Nos. 1 and 4, these Items were absolutely owned by her father, the other three suit items were the properties in which the plaintiff's father had 1/6th right. The defendants 1 to 3 are daughters of one of the five daughters of said Bhanu Naik, while defendants 4, 5, 6 and 7 are the other four daughters and defendants 8 to 12 were the brothers-cousins of deceased Bhanu Naik with whom Bhanu Naik had 1/6th share in respect of suit item Nos. 2, 3 and 5. The relationship amongst the parties can be better depicted by the following chart:
Bhanu Naik
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*D-1 *D-2 *D-3 *D-4 *D-5 *D-6
Radha Vamakshi Khomai Seetha Heera Neela
(Deft-4) @Sharada (Deft-5) (Deft-6) (Deft-7) (plaintiff)
(died on (died on
26-10-75) 20-4-72)
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________________________________
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Saroja Udaya Deepak
(Deft-1) (Def-2) (Deft-3)
*D-daughter
4. It is the further case of the plaintiff that her father Bhanu Naik died intestate leaving behind five surviving daughters - plaintiff and defendants 4, 5, 6 and 7 - and defendants 1 to 3 - children of the pre-deceased daughter by name Vamakshi, together were each entitled for 1/6th share in the properties left behind by Bhanu Naik i.e. in equal measure.
5. On notice, mainly defendants 1, 2 and 5 contested the suit by filing written statement contending that the suit schedule properties having already been acquired for the formation of Naval base, there is no property available for sharing and division; that no suit schedule property was in possession of the defendants, but the contesting defendants were entitled to claim exclusively for themselves the entire compensation for the reason that the propositor Bhanu Naik had requested Keera Naik, husband of second daughter Vamakshi @ Sharada to reside in the house as mane aliya and to take care of the properties; that the father of defendants 1 and 2 had taken care of the properties including cultivating the agricultural lands; that the he had on his own by raising loan from a bank constructed a house located in suit item No 1; that the house exclusively belongs to the said Keera Naik and as the said Keera Naik had become mane aliya, all the properties of the family are inherited by him and through his daughter the other heirs would get share in the properties sought to be divided and therefore sought for dismissal of the suit.
6. It was also pleaded that non-imp leading of said Keera Naik as a party to the suit has rendered the suit bad for non-jointer of necessary parties and therefore prayed for dismissal of the suit on such premise also. Defendants 4, 5, 6 and 7 - the other daughters of Bhanu Naik - filed separate written statement, supporting the case of the plaintiff.
7. It is in such circumstances, the trial court framed the following issues:
1. 'Whether the Plaintiff proves his [her] share in suit property? If so, what is his [her] share?
2. Whether he [she] is entitled to partition and separate possession of his [her] share by metes and bounds?
3. Whether Defendants 1, 2, 3, 7 and 9 proves that suit item No. 1 is the absolute property of one Keera Nanu Naik? and that the suit is bad for non joinder of necessary party?
4. For what decree or order?
8. On the basis of such issues, the parties went to trial. While the plaintiff deposed as PW1, on behalf of the defendants, apart from the second defendant, who deposed as DW1, the sixth defendant, who was examined as DW2, nevertheless supported the case of plaintiff. Keera Nanu Naik, lather of defendants 1 to 3 was examined as DW3. DWs 4 and 5 were examined on behalf of the defendants 1 to 3, to prove the custom of aliya santana or mane aliya prevalent in some parts of Uttarakhanda district.
9. On behalf of the plaintiff, documentary evidence ExP1 to 10 - mutation entries in respect of the suit schedule properties - indicating that on the death of propositor Bhanu Naik, the entry stood in the name of mother of defendants 1 to 3, who, it had been claimed, was managing the properties of the family and not in the name of Keera Naik, the so called mane aliya, and on behalf of defendants, Ex. D1 to 8 were got marked, amongst them being the document relating to the house property on suit item No 1, for which loan had been obtained from Vijaya Bank and transactions in the name of Keera Naik and the dealings by Keera Naik etc.
10. The learned judge of the trial court, on appreciation of the oral as well as documentary evidence, answered issue Nos. 1 and 2 in favour of the plaintiff and issue No. 3 in the negative and against the defendants, to hold that the defendants 1 to 3, 7 and 9 have failed to prove that the suit item No 1 was the absolute property of Keera Naik and the suit was bad for non-jointer of necessary parties.
11. The learned judge of the trial court was of the view that the properties were all properties of Bhanu Naik; that on his demise, all his daughters necessarily should get a share and so also the children of pre-deceased daughter Vamakshi put together to get 1/6th share and that the defendants 1 to 3 had failed to prove any customary practice of mane aliya nor the practice of aliya Santana being prevalent and held that defendants 1 to 3 having failed to prove an overriding customary practice to get over the statutory provisions of the Hindu Succession Act, 1956, the statutory provision providing for succession to the properties of a male Hindu dying intestate should prevail and in this view of the matter, decreed the suit, declaring that the plaintiff is entitled to 1/6th share in the suit schedule properties.
12. Aggrieved by this judgment and decree, the defendants 1 to 3 and 9 appealed to the lower appellate court and met with success. The learned judge of the lower appellate court, who formed the sole point as to whether the judgment and decree of the trial court is justifiable one, answered this question in the negative and against the plaintiff and accordingly allowed the appeal, set aside the judgment and decree passed by the trial court and dismissed the suit. In such circumstance, the plaintiff has approached this Court by filing this second appeal under Section 100 CPC.
13. The learned judge of the lower appellate court was of the view that in the light of the materials placed before the trial court, particularly in the form of Karnataka gazetteer and looking into the contents thereof, describing the social life and practice prevalent In Uttarakhanda district, accepted the version that the customary practice of aliya Santana was prevalent in some part of Uttarakhanda district also and as the fourth defendant - an independent witness - has deposed that there is a possibility of mane aliya practice being prevalent in the area and should be the practice in Arga village also and this coupled with the evidence of DW3, who had deposed that he had been asked to function as a mane aliya by his father-in-law and if so, the customary practice of aliya Santana could be given effect to and therefore the plaintiff cannot claim a share in the properties which should go exclusively to the mane aliya and not to the other daughters and held that the suit of the plaintiff should fail.
14. In coming to this conclusion, the learned judge of the lower appellate court was of the view that the custom of mane aliya has been proved in the present case by the appellants-defendants and that it prevailed over the statutory law providing for succession and therefore the suit has to be dismissed and as the properties got vested in the mane aliya Keera Naik, necessarily the properties should go to his children alone and not to others. The learned judge of the lower appellate court was of the view that the finding with regard to the non-jointer of parties as recorded by the trial court was not correct and the suit was to be dismissed for non-jointer of necessary parties and opined so.
15. While admitting this appeal, this Court had formulated the following questions of law as arising for determination in this second appeal:
1) 'Whether the court below could have set aside the judgment and decree passed by the trial court on extraneous grounds, when there is no pleadings in respect of adoption or being a 'mane aliya' on behalf of the defendants?
2) Whether lower appellate court could have set aside the decree passed by the Trial Court without taking recourse to the provisions of the Hindu Succession Act?'
16. As indicated by me in the beginning of this judgment, the substantial questions of law are reframed as noticed earlier.
17. Sri K.B. Shivaprasad, learned Counsel for the appellant, has vehemently urged that the judgment and decree passed by the lower appellate court is clearly unsustainable in law; that the learned judge of the lower appellate court has committed a grave error in law in dismissing the suit by allowing the appeal; that while the defendants had not even proved that the family was governed by customary practice of aliya Santana, there is no occasion for the learned judge of the lower appellate court to conclude that mere describing Keera Naik - husband of the second daughter of propositor Bhanu Naik - as mane aliya by itself bring in the custom of aliya Santana and therefore the judgment and decree passed by the first appellate court is liable to be set aside.
18. It is more emphatically argued that even assuming for argument's sake the defendants had established that Keera Naik had been taken as mane aliya and a custom to do so was in vogue in the community, even then it was not available to the defendants to claim property exclusively as that of Keera Naik for the reason that when the propositor Bhanu Naik died in the year 1972, Hindu Succession Act was very much in operation and Section 8 of the Act provided for the manner of succession, when a male Hindu died intestate, and therefore the properties of Bhanu Naik necessarily should go by succession as per Section 8 and all the daughters being class-I heirs should share the properties equally and not that the properties can be inherited as per any customary law, much less by way of aliya Santana and that the daughters of one of the pre-deceased daughter of propositor Bhanu Naik alone can exclusively claim the properties. It is submitted that unless any practice prevailing in any community is saved, statutory law necessarily operates and therefore the judgment and decree being contrary to Section 8 is liable to be set aside.
19. Appearing on behalf of the defendants 1 to 3-respondents, Sri G.V. Kodanda Ram, learned counsel, submits that when the defendants proved that the practice of aliya Santana was very much in vogue in families in Uttarakhanda district and the fact that Keera Naik was being treated as mane aliya as such in the family of Bhanu Naik and was taking care of the entire properties is not in dispute, the learned judge of the lower appellate court has rightly allowed the appeal and dismissed the suit; that recognition of such customary law is proper; that courts have taken the view that if some customs prevail in some societies or communities, they should be recognized notwithstanding operation of general law and in support of such submission has placed reliance of the decision of the Supreme Court in the case of G. Narayanappa v. Government of Andhra Pradesh : AIR1992SC135 . Referring to paras 10 and 12 of this judgment, learned Counsel for the respondents would submit that if the practice of customary succession such as aliya Santana is prevailing, then the judgment of the lower appellate court has to be necessarily sustained and there is no need for interference.
20. On an examination of the pleadings, evidence on record and perusal of the judgments of the courts below, I And that the learned judge of the lower appellate court has committed a serious error in law in concluding that the defendants had not only proved the customary law prevailing in the family and in the area, but also that customary law operates over and above the statutory law.
21. Even as per the pleadings, the case of defendants 1 to 3 was that their father Keera Naik was asked to remain as mane aliya as per the custom, it is not as though the practice or custom of aliya Santana was prevailing in the family, and the head of the family asked his son-in-law to remain as mane aliya. A mere request by the head of the family asking the son-in-law to remain as mane aliya does not mean that the customary law is brought into existence in the family and is to be followed. If the customary law is already prevalent and the conduct of the parties is in consonance with the said customary law, that can be recognized on par with law. But if a customary law is not prevalent or was not in existence already, by act of parties at a given point of time, it cannot be pleaded that they have adopted or begun such a custom thereafter. Pleading does not indicate that the customary practice of aliya Santana had prevailed in the family, but is that as Keera Naik had been asked to remain as mane aliya, and therefore he is entitled to invoke the customary law of aliya santana. Such cannot be the position in law. It is therefore to be held that a mere request made by the propositor Bhanu Naik requesting his son-in-law Keera Naik to remain as mane aliya does not attract the customary practice of aliya Santana into the family and therefore no benefit can be claimed by the so called mane aliya to insist that the practice of aliya Santana should be followed in the family.
22. But more importantly, assuming that the practice did prevail in the very family, in which event, the customary practice of aliya Santana is a practice of succession through the female through which the mane aliya gets a claim and if so, the son-in-law joins his wife and lives with the wife, and only their children succeed to the properties, even such a custom also has to yield to the codified statutory law and the provisions of Section 8 of the Act operates.
23. This is so because Section 4 of the Act expressly provides that the provisions of the Act has an overriding effect over any other inconsistent text, rule or interpretation of Hindu Law or any custom, usage or practice prevalent till then. Section 4 of the Hindu Succession Act, as it prevailed at the relevant point of time, is as under:
4. Overriding effect of Act - Save as otherwise expressly provided in this Act:
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cause to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fraction of ceilings or for the devolution of tenancy rights in respect of such holdings.
Rule of succession as per Section 8 is as under
8. General rules of succession, in the case of males. - The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class U of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
A combined reading of these two Sections clearly indicates that succession as per this provision will take place on the death of a Hindu dying intestate. It is not shown as to how this provision of law cannot operate or as to how a customary law is saved, notwithstanding the provisions of Section 8 of the Act operating on and after the Hindu Succession Act has come into force.
24. Even if the properties were not self acquired properties of Bhanu Naik, but he had inherited it as a joint family property, then also the position does not notwithstanding savings for continuation of a joint family property made in Section 6 of the Act. As Bhanu Naik was the only male member in the family his entire interest in the joint family properties has to go by succession in favour of his surviving daughters and the children of predeceased daughter as Bhanu Naik had no male issues. There is no saving in the Act in favour of any customary practice of aliya Santana method of succession or devolution. In the absence of any such saving, Section 8 of the Act clearly operates and the properties of Bhanu Naik on his death go by succession to all his daughters and children of pre-deceased daughter take equal share in the properties. (See : AIR1962SC1493 Munnbual v. Rajkumar).
25. The learned judge of the lower appellate court was clearly in error in taking the view that customary law prevails over the statutory law. In fact it is the other way. Section 8 of the Act prevails over the customary law when once Section 8 operates and therefore the judgment and decree as passed by the lower appellate court Is not sustainable.
26. In the result, this appeal is allowed with costs, the judgment and decree passed by the lower appellate count is set aside and the judgment and decree passed by the trial court is restored.
27. It is only to be observed that any loan that had been raised by any member or the daughters of Bhanu Naik, or even Keera Naik - husband of second daughter - for the benefit of the family and for construction of the house, can be adjusted against the compensation which the parties are entitled to share as the properties have already been acquired for the purpose of Naval Base at Karwar. It is only after discharging such loan, the balance amount is to be shared amongst the parties in terms of the judgment and decree of the trial court.