1 APPEAL FROM APPELLATE DECREE No.79 of 1994(R) [Appeal against the judgment and decree dated 17th August, 1994 passed by Sri Bal Govind Prasad, 3rd additional Judicial Commissioner, Ranchi in Title Appeal No.33 of 1990] 1. Brajendra Nath Singh Munda.
2. Gokul Singh Munda 3. Aklu Singh Munda 4. Okil Singh Munda 5. Mostt. Fulmati 6. Paklu Singh Munda 7. Mostt. Lalu Devi 8. (a) Rajmani Devi (b) Jainath Munda (c) Saral Singh Munda (d) Sudarsan Singh Munda 9. Radhacharan Singh Munda 10. Tahal Singh Munda 11. Kunwar Singh Munda ……. Appellants. Versus 1. (i) Mostt. Subhadra Devi (ii) Mihir Singh Munda (iii) Deban Singh Munda (iv) Bablu Singh Munda 2. (i) Tiloktama Devi (ii) Diwakar Singh Munda (iii) Man Mohan Singh Munda (iv) Bhupendra Singh Munda (Minor) (v) Birsa Munda (Minor) (vi) Gandhe Kumari (vii) Lila Rani 3. Gourang @ Pradhan Singh Munda 4. Mostt. Panchami Mundain 5. Lohar Singh Munda 6. Bindeshwari Mundain 7. Bhongo Singh Munda 8. Mostt. Mani Mundain 9. Samlal Singh Munda 10. Deputy Commissioner, Ranchi. ..…..Respondents. CORAM : HON’BLE MR. JUSTICE D. N. UPADHYAY For the Appellants : Mr. Lalit Kumar Lal, Advocate For Respondents : Mr. A. K. Sahani, Advocate th CAV on 27 Nov., 2014 Pronounced on 2 nd March, 2015 D.N. UPADHYAY: This second appeal has been preferred by the plaintiffs/appellants against the judgment dated 17th August, 2 1994 and decree dated 25th August, 1994, passed and signed by 3rd Additional Judicial Commissioner, Ranchi in connection with Title Appeal No.33 of 1990, whereby judgment and decree passed by Sub JudgeI, Khunti in connection with Partition Suit No.188 of 1985/63 of 1986/140 of 1987 has been set aside. 2. The Plaintiffs are appellants and defendants are respondents in this second appeal. 3. The instant appeal was admitted on 5th April, 1995 to decide the following substantial question of law: “Whether the lower appellate court has erred in law in holding that the family was governed by the rule of primogeniture?” 4. A suit was filed for partition by the plaintiffs/appellants, claiming 1/3rd share to Plaintiff No.1, 1/6th share to Plaintiff Nos.3 to 9 jointly, 1/6th share to Plaintiff Nos.10 to 12 jointly and 1/12 th share to Plaintiff No.13 from the suit properties described in the schedule given at the foot of the plaint by appointing a Pleader Commissioner to carve out separate Takhtas and also cost of the suit. 5. It is contended that plaintiffs and defendants are Mundari Khuttkatidar of village Baridih, P.S. Bundu, District Ranchi and they own and possess their ancestral Mundari Khuttkatti lands in the village. Some of the lands are possessed by them jointly and some separately. The parties are Mundas and are governed by their own customary law in the matter of inheritance and succession, according to which agnatic succession is the rule and not the cognatic. Females and persons, claiming through females, are excluded from inheritance. Widows are entitled to maintenance out of the usufruct of their husbands' properties. Similarly, unmarried daughters are also entitled to be maintained out of the usufruct of the lands of their fathers. Married daughters forfeite their rights in lands to their fathers. After the death of sonless widow, her properties are inherited and succeeded by the close agnates of her husband in equal share. Illegitimates are entitled for maintenance from their respective 3 fathers' properties.
6. Gokul Singh Munda was the common ancestor of plaintiffs and defendants and the genealogy has been given in the plaint. Gokul Singh Munda died before cadastral survey leaving behind his four sons, namely, Ghasi Rai, Doman Singh, Lohar Singh and Beni Rai. Defendant Nos.1, 2 and Plaintiff Nos.10 to 13 are the descendants of Ghasi Rai; Plaintiff Nos.1 & 2 and Defendant Nos.9 & 10 are the descendants of Doman Singh; Plaintiff Nos.3 to 9 and Defendant Nos.3 to 8 are the descendants of Lohar Singh; and the fourth son Binrai died leaving behind his widow Mostt. Ghasni, who also died issueless. 7. It is contended that Gokul Singh Munda was Mundari Khuttkatidar of village Baridih and he was enjoying the possession thereof. After his death, his four sons jointly inherited and succeeded him in equal share and came in joint possession over the properties left by their father. In due course, to avoid frequent quarrels prevailing among the members of the family, the four brothers separated in mess and residence and began to cultivate their joint ancestral land separately for the sake of convenience. No partition among them by metes and bounds had taken place. It is further contended that the four brothers, while living separately, reclaimed some Gairmazarua lands separately according to their resources and the same have been recorded separately in the Cadastral Survey Record of Rights in various coordinate Khewats. The lands, which were in possession of Ghasi Rai, have been recorded in C.S. Khewat No.6 in the names of his sons viz. Dhum, Karam, Hiralal, Manglu and Bodh Singh (sons of Ghasi Rai died prior to cadastral survey). Hiralal and Manglu died issueless. Thereafter, the said lands were recorded in Revisional Survey Khewat No.5/1 in the names of Raghu Nath and Udainath, both sons of Dhum Munda; Revisional Survey Khewat No.5/2 in the names of Pitambar, son of Karam Singh and others in the name of Bodh Singh, son of Ghasi Rai. Those lands are now possessed by Defendant Nos.1 and 2 and Plaintiff Nos.10 to 13. The lands, which were in possession of 4 Doman Singh, were recorded in the name of his sonDubraj Singh in Cadastral Survey Khewat No.12. The name of Vishwanath Singh was recorded in Revisional Survey Khewat No.9. Gobardhan was the illegitimate son of Doman and, therefore, he was and his descendantsDefendant Nos.9 and 10 and Plaintiff No.2 are entitled to be maintained only. The lands, which were in possession of Lohar Singh, were recorded in his name in Cadastral Survey Khewat No.11. He died leaving behind his two sons, namely, Kartik Singh and Gour Singh. Kartik died before revisional survey. Hence the lands of Lohar Singh have been recorded in Revisional Survey Khewat No.14/1 in the name of Janak Singh and 14/2 in the name of Gour Singh. Revisional Survey Khewat No.14/3 remained their joint Khewat. 8. At the time of filing of the suit, those lands were in possession of Plaintiff Nos.3 to 9 and Defendant Nos.3 to 8. The lands, which were in possession of Binrai, were recorded in his name in Cadastral Khewat No.13. He died leaving behind his widowMostt. Ghasni. She was in possession of those lands during revisional survey and as such her name was recorded in Revisional Survey Khewat No.15. During her lifetime, Vishnath Singh, grand son of Doman Singh, was cultivating her land. She died sometimes in the year 194041, but Vishnath Singh after her death continued his exclusive possession over the suit land. The Plaintiff Nos.1 and 2 after the death of their father have been exclusively enjoying their possession over those lands, although all the descendants of Ghasi Rai, Doman and Lohar are entitled to get equal share therein. The Defendant Nos.1 and 6 had falsely claimed to have resumed these lands after death of Mostt. Ghasni, alleging themselves to be the landlords of the village, but their contentions were held baseless and false in Title Suit No.8 of 1974, which stood dismissed on 19th June, 1978 by the order passed by S. B. Houra, Additional SubJudge, Ranchi. 9. Further case of the plaintiffs is that Ghasi Rai, being the eldest among the brothers, was official Munda and was acting as the head or Karta of the Mundari brotherhood. He used to 5 pay rent to the superior landlord by collecting rent from raiyats and his younger brother used to pay Chanda i.e. contributory subscription to him and that arrangement is still prevalent among their descendants, including the plaintiffs and the defendants. Being the official head and Karta of the joint family, Ghasi Rai had mortgaged portion of the ancestral land with Kundus of village Bundu to meet the necessities prior to cadastral survey. The names of mortgagees have been recorded in the Cadastral Survey Khewat No.7, which corresponds to the lands of Revisional Survey Khewat Nos.7/1 to 7/4. The mortgage was, however, redeemed in the year 1945 with joint fund raised by giving joint ancestral lands in Bhugatbandha mortgage to one Haridas Manjhi. The Bhugat period expired and the parties to the suit acquired their joint possession over the lands recorded in Revisional Survey Khewat Nos.7/1 to 7/4. The plaintiffs and Defendant No.5 have converted Gairmajarua lands of those Khewats into Korkar according to their resources and they are in possession over the same and some lands are still under the process of conversion by them. Since frequent quarrel started between the parties regarding cultivation and enjoyment of aforesaid lands, described in the schedule of the plaint, the plaintiffs have asked for partition of their ancestral lands, but no heed was paid by the cosharers and hence necessity of filing the suit arose. 10. Further case of the plaintiffs is that Bhongo Singh Munda Defendant No.8 is a minor and is living in the care and guardianship of his unmarried older sister Bindeshwari Mundain, Defendant No.7, who has no interest adverse to that of the minor and is a fit person to act as his nearest friend in the suit. The descendants of Dubraj Singh and Janak Singh had previously filed a partition suit in the court of the Special SubJudge, Ranchi, being P.S. Case no.23 of 1971 against their other co sharers in respect of the lands in suit including others and the same was transferred to the Court of Sri S. B. Singh Houra, Additional SubJudge, Ranchi for disposal but the same was 6 found to be dismissed for default on 25.4.1977 when the plaintiffs of the suit went to the court to file a partition for amendment of the plaint of that suit. The Plaint Nos.10 to 13 reserve their right to file separate suit for partition against the Defendant Nos.1 and 2 in respect of their joint lands recorded in Cadastral Khewat No.6, corresponding to the lands in Khewat Nos.5/1 into 5/3 and 6. 11. The cause of action for suit arose on various dates when the plaintiffs demanded for partition and the request made by them was postponed on one plea or other and lastly on 14th January, 1985 when the demand for partition was not complied with in village Baredih, P.S. Bundu, District Ranchi within the jurisdiction of this Court. 12. The original Defendant Nos.1 and 2 had filed their written statement before the court below, stating therein that the suit is not maintainable, barred by Law of Limitation, adverse possession and complete ouster. The suit is also barred by principle of waiver, estoppel and acquiescence. The suit is collusive between the plaintiff and some of the defendants. There is no unity of title and possession between the parties and they are not the coowners of the properties for which partition has been sought for. The suit is also barred by the provisions of Order II Rule 2 C.P.C. and also by resjudicata. As a matter of fact, the plaintiffs have not described that the plaintiffs and other defendants are Babus and Defendant No.1 is Munda of Mundari Khutkatti Tenancy Village. The Defendant No.1 is the eldest member in the eldest male line and he is Munda of Mundari Khutkatti Tenancy and, therefore, he is proprietor of the same. It is incorrect to say that the parties owned and possessed Mundari Khutkatti lands in the village some jointly and some separately. The plaintiffs are only entitled to the lands inherited by them, which are recorded in the names of their ancestors, and have no concern with other properties. In Mundari Khutkatti Tenancy of the village, the eldest male member in the eldest line becomes the Munda Malik and proprietor of the village and the tenancy vests on him and the junior male members were 7 allowed to hold and possess certain specific lands when they separate from the parent family for their maintenance and also land reclaimed by them with the consent and permission of the Munda. The contesting defendants have also made out a case that genealogy given by the plaintiffs is not correct. Gokul Singh Munda, who was Munda of the village, had only two sons, namely, Ghasi Rai and Binrai, and he died long before cadastral survey. It is incorrect to say that Doman Singh and Lohar Singh were the sons of Gokul Singh Munda. Plaintiff Nos.10 to 12 are not of legitimate branch and have no concern with the properties. They have been allowed certain lands for their maintenance and they are enjoying their possession over the same. They have been set up by the plaintiffs collusively to lay a false claim over the schedule properties. Since Doman Babu and Lohar Babu were of different Khunt, they had no concern with Mundari Khuntkatti Tenancy of the village. Gokul Singh Munda enjoyed his right as Munda Malik till his death and after that his eldest sonGhasi Rai became the Munda Malik of the village and after his death, his eldest sonDhum Singh Munda became the Munda of Mundari Khuntkatti Tenancy and he had exercised all his rights till his death. On the death of Dhum Singh Munda, his eldest son Raghunath Singh Munda became the Munda Malik of Mundari Khuntkatti Tenancy. At the relevant point of time, Raghunath Singh Munda and Uday Nath had not separated. Uday Nath died issueless and his widowMost. Chutumani got herself married with Ajamber Singh. Thereafter, on the death of Raghunath, his eldest sonDurga Charan (Defendant No.1) became the Munda Malik of the Mundari Khuntkatti Tenancy. Defendant No.2, brother of Durga Charan, had been living with the Defendant No.1 and no land has been allotted to him as per the custom of the family and Mundari Khuntkatti Tenancy. The contesting defendants have denied the fact that after death of Gokul Singh Munda, his four sons jointly inherited and succeeded him in equal share. Since it is contended that Doman and Lohar were not the sons of Gokul Singh Munda, question of acquiring 8 joint possession over the properties did not arise. It is contended that Doman Babu and Lohar Babu had separate land and they had no concern with the parent Mundari Khuntkatti Tenancy. On their separate lands, their descendants had inherited the properties and are enjoying the possession. The defendants have also denied that due to dispute among female folk, the said four brothers separated and cultivated land separately for their convenience. It is also incorrect to say that the said four brothers reclaimed Gairmazarua lands separately. Gairmazarua lands belong to the Munda and reclamation could be done only on the permission of the Munda of the village. The ancestors of the plaintiffs have no coordinate interest in the Mundari Khuntkatti Tenancy and they were Babus and they were in possession of certain lands subordinate to the Munda and contrary record, if any, is not admitted to be correct. 13. Further case of the defendants is that four sons of Ghasi Rai and illegitimate sonBodh Singh had not separated during cadastral survey and after cadastral survey Hira Lal and Manglu, sons of Ghasi Rai died issueless. Karam Singh was given certain lands for his maintenance. On his death, Pitamber cultivated and enjoyed possession over the said land. Since Pitamber died issueless, the then Munda MalikRaghunath Singh had resumed and came in possession over the same. Bodh Singh Munda was the illegitimate son of Ghasi Rai and he was given certain lands for his maintenance, which was enjoying by his descendants after his death and, therefore, Plaintiff Nos.10 to 12 have been falsely impleaded in the suit. According to the plaintiff himself, the illegitimate sons have no right in the property, but even they have been made parties in the suit. Ghasi Rai as a Munda of Mundari Khuntkatti Tenancy had mortgaged a portion of Mundari Khuntkatti Tenancy to Narayan Kudu and others and, thus, Kundus were in possession, as mortgagees, and in the record of right names of Kundus were recorded under Ghasi Rai Munda. Raghunath Singh Munda reclaimed the mortgage from his own fund by making arrangement from his own properties 9 and deposited the mortgage amount before the Munsif, Ranchi in Misc. Case No.29 of 1945 and after redemption, Raghunath Singh Munda came in possession exclusively and after his death, his sonDurga Charan came in exclusive possession over the said properties and that too to the knowledge of all concerned, including the plaintiffs and other defendants without being objected from any corner. Raghunath Singh on his own right gave Bhugat for redemption of above mortgage and he came in possession over all the properties recorded in Khewat Nos.7/1 to 7/4 and he was in exclusive possession over the said properties. After his death, Defendant No.1 came in exclusive possession. The plaintiffs or other defendants have no right over the properties mortgaged. 14. The plaintiffs had filed Partition Suit no.23 of 1971 with false allegation against the defendants and the same was dismissed and, therefore, the plaintiffs are liable to be stopped from reagitating the issue again. The suit filed by the plaintiffs was decreed by the Trial Court in Partition Suit No.188 of 1985/63 of 1986. The defendants, thereafter, preferred an appeal against the impugned judgment and decree passed by the Trial Court vide Title Appeal No.33 of 1990 and the learned 3rd Additional Judicial Commissioner, Ranchi allowed the appeal and set aside the judgment and decree passed by the Trial Court and the suit was directed to be dismissed. It was mainly held by the Lower Appellate Court that as per customary law, eldest son in the eldest male line shall become the Munda of Mundari Khuntkatti Tenancy and the property shall vest on him. Learned Lower Appellate Court has discarded the findings of the Trial Court on the ground that rule of primogeniture was the custom and, therefore, Defendant no.1 shall be the proprietor of Mundari Khuntkatti Tenancy because he was Munda Malik of the village. Learned Lower Appellate Court has gone to the extent of saying that the Trial Court under misconception of customary law has misinterpreted the authority cited in this concern and allowed the suit by granting relief to the extent of partition sought for in 10 the plaint. 15. The instant second appeal, therefore, has been admitted only to decide the substantial question of law “Whether Lower Appellate Court has erred in law in holding that the family was governed by the rule of primogeniture?”
16. To answer the said question, I have gone through the judgments passed by the Trial Court as well as Lower Appellate Court and the case record. I have also perused the pleadings of the parties. From perusal of the materials available on record, I find that Lower Appellate court has held that the Trial Court has not properly considered the rule of primogeniture prevailing between the family and irrelevant paragraphs of book of S.C. Roy (The Mundas and their Country) have been quoted for coming to the conclusion. Learned Lower Appellate Court in its judgment has discussed about broken Mundai Khuntkatti Village and also discussed about alien who acquired land in the village and became landlord. 17. Since the instant second appeal has been admitted for answering limited question “whether rule of primogeniture is lex loci for Mundari Khuntkatti Tenancy or it is a specific custom prevailing in a particular village or in a particular family”? To answer this question, reference to a book of S. C. Roy, namely, “The Munda and Their Country”, appears essential. Pages 60, 61 and 62 of the said book under ChapterThe Early History of the Munda are relevant, which are quoted herein under: “The idea of private property, as we have seen in the last chapter, had already been developed amongst the Munda. Their cherished idea of ownership of land, however, was the archaic one of the joint ownership by the family or by a group agnatic families. The country they now entered was practically res nullius and the Mundas occupied it and meant to keep it always for themselves. Each family made in the virgin forests its own clearances which came to be called the Hatu, later on known as the khuntkattihatu, or the village of the family of the original settlers. The boundaries of the village were laid down by the pater families. And even to this day, the Mundas regard as sacred and inviolable these boundary lines over which the boundarygods (Sumanbongako) keep a vigilant watch. The method by which these boundaries were laid down by the old Munda patriarchs was very simple one. Huge bonfires were lit up at four 11 corners of a selected tract and straight lines drawn across the tract from one point to the next, connecting the four bonfires. These lines formed the boundarylines of the new village. And within the limits of the villge thus demarcated, all the land, cultivable as well as waste, all the hills, jungles and streams, every thing above ground and underground became the common property of the villagefamily. One or more bits of jungles were specifically reserved for the villagegods (hatu bongako) and called the Sarnas. When the sons of the pate families came of age, they married girls of other villages; and on the father's death, the married sons often separated from one another and built separate houses for themselves in the same Hatu. And in this way, the original villagefamily would branch off into a member of separate families belonging to the same Kili or sept. On the death of the founder of the village, his eldest son would come to be the patriarchal head of the different branches of the family. The whole village acknowledged his chief ship in matters temporal as well as spiritual, for in those early days the functions of the Munda or secular head of the village and of the Pahan or the ecclesiastical head do not appear to have been separated. xxxxx xxxxx xxxxx xxxxx We should be greatly mistaken, however, if we suppose that any superior rights of property were attached to the office of a Munda. His position has been aptly described as that of a Primus inter pares a chief among equals. He had his share of the village lands just as the other members of the Khuntkatti group had. Occasionally perhaps the pater families sought and obtained the assistance of the brotherhood in the cultivation of his fields. But such assistance, when rendered, must have been reciprocated as much as was possible consistently with the dignity of a Munda.” 18. In view of the above reference, it is clear that the eldest son in the male line shall become the official head and he shall be called Munda or Headman of the village. So far the land pertaining to Mundari Khuntkati Tenancy, it is not indicated in the book that Munda shall be the sole proprietor of Mundari Khuntkatti Tenancy of the village. Being head, record of right may be prepared in his name, but, so far the right of other members are concerned, principle of inheritance and partition is required to be followed. Under the heading 'Partition' and 'Inheritance' under ChapterThe Ethnography of the Mundas, custom prevailing has been indicated, which is quoted herein below: “(i) Partition As we have said, the members of an undivided Munda family share all they have, in common, till the death of the father, But, the father may, during his lifetime, expel a disobedient son from his house even 12 without giving him any moveable property or a share of the lands. It is optional with the father, however, to separate a son with such share of the family property as the father thinks proper. The father is nowadays regarded as having almost absolute control over the family property during his lifetime, although any disposition of family property in contravention of the customary rules of inheritance will not be binding on his heirs. The sons cannot, as of right, demand a partition during the lifetime of their father. But the father may, and sometimes does, make a partition of family property amongst his sons. This is almost always the case when the mother of the sons being dead, the father has married a second wife. At partition, the eldest son generally gets a slightly larger share than the other sons, the excess being ordinarily one kat (sala) of land, and, in welltodo families, a yoke of plough cattle or only one bullock or one goat, and sometimes also one 'mora' or bundle of paddy measuring from ten to sixteen maunds. With this difference, the sons all get equal shares of moveable and immoveable property, and a similar share of both real and personal property is taken by the father. An unmarried son, however, will get, in addition to his proper share, some cash or cattle or both by way of provision for his marriage. The cattle, &c., which a married son received at his marriage will be given to him at partition. Females amongst the Mundas are not entitled to inherit, but the father may in his lifetime make presents of cash or moveables to a daughter, but not of lands. When, however, the father effects a partition during his lifetime, an unmarried daughter usually gets some land to be held by way of maintenance till her marriage, and also a few kat of paddy for her consumption till the following harvest. Almost invariably, an unmarried daughter, after such partition, lives either under the protection of her father or of one of her brothers; and the land allotted to her by way of maintenance till her marriage, remains till then in the possession of her chosen guardian who supports her. The brideprice received at her marriage too will go to that guardian if he defrays the expenses of her marriage. This khorposh land of the sister, however, will be repartitioned amongst the brothers, after the sister's marriage. When a Munda father, after marrying a second wife, makes a division of the family property with his sons by his first wife, there cannot be a redistribution of the lands on the birth of other sons to him by the second wife. Till the father's death, such subsequentlyborn children will be maintained out of the share of their father. (ii) Inheritance We now come to the customary law regarding inheritance amongst the Mundas. After the death of the father, if the sons do not agree to live together, a Panchayat is convened, and the property divided according to Mundari rules of inheritance. When the deceased has left behind him a widow and grown up sons and daughters, the Panch will first set apart some land, generally equal to a younger son's share, for the maintenance of the widow; and, if any cash has been left by the deceased, a small sum (generally not more than twenty rupees) is paid to the widow for her subsistence till the following harvest. In the land thus 13 allotted to her, she can only have a lifeinterest. If, for the rest of her days, she lives separate from her sons and independently of any pecuniary assistance from any of them in particular, her maintenanceland will, on her death, be equally divided amongst the sons. But, in most cases, the widow prefers to live with one or other of the sons. In such a case, her maintenanceland is cultivated and practically enjoyed by that son, and if he meets all her funeral expenses, he becomes entitled to those lands.” 19. Thus, it is clear that rule of primogeniture is lex loci and, therefore, this rule is to be proved by adducing evidence if it is prevalent either in the village or in the family. The duties of Munda also find mentioned in the official report on the Survey and Settlement Operation in the district of Ranchi done between 19021910 by J. Reid, ICS, Settlement Officer, Chhotanagpur, at Page307, Paragraph 188 of the said report reads as under:
“188. Mundari Khuntkatti tenancies The ancient system of land tenure still survives in scattered blocks in the Munda country. The Munda system of land tenure has been fully described in a valuable note by Father Hoffman, S.J. And Mr. Lister, C.S., which will be found in Appendix I to my edition of the Choa Nagpur Tenancy Act. Father Hoffman is a missionary, who has spent 10 to 12 years in the Munda country and has made a special study of the Mundari language and Mundari social customs and land tenure. Mr. Lister was the Settlement Officer, who initiated the settlement operations in the district, and devoted four years of assiduous and untiring labour to the study of the agrarian question, especially in the Munda tract. For a full and complete description of the Munda land tenures, reference must be made to the note. It will be sufficient to give here a brief description of a purely Mundari Khuntkatti village. The khuntkattidars are the descendants in the male line of the original founders of the village, and a group of these Khuntkattidars are the owners of ail the land included within its boundaries. The annual rent payable was originally made up of the subscriptions (Chandas) of the Khuntkattidars; but the subscriptions of may of them have been reduced, and the deficits have been made good from the rents paid by the raiyats, who hold raiyati tenancies under the joint brotherhood. There is a headman in each village called the Munda, who collects the Chandas and pays the rent to the superior landlord, the Manki or his successor in interest. .....” 20. The above contentions also make it clear that the eldest son in the male line shall be elected as Munda i.e. head of the village and his duty is to collect subscription from Khuntkattidar of the village. The Khuntkattidars are descendants in the male 14 line of the original founders of the village and a group of these Khuntkattidars are the owners of the land executed within its boundaries. This also makes it clear that rule of primogeniture in Mundari Khuntkatti Tenancy is not considered as rule of lex loci 21. I did not find that the defendants have succeeded to prove this fact that rule of primogeniture was prevailing in the family or in the village. No documentary evidence to prove existence of prevalence of rule of primogeniture has been brought on record. Selection of Munda as official head is quite different and distinguishable from the fact that elected Munda shall be sole proprietor of the entire property of Mundari Khuntkatti Tenancy.
22. In the instant case, the respondents/defendants have tried to bring on record that Gokul Singh Munda, the common ancestor, was having only two sons, namely, Ghasi Rai and Binrai Babu, but this fact stood unproved by earlier litigation and also from the pleadings and evidences of the parties. The defendants have tried to bring on record that the property, which was recorded in the name of Most. Ghasni, wife of Binrai Babu, was also acquired by Ghasi Rai after the death of Ghasni, but the litigation prevailed between the parties for said land had come to an end with the judgment, marked as Ext.14/A in which it was held that Binrai died issueless and the property was recorded in the name of his wifeMostt. Ghasni. When litigation arose, it was held that after death of Ghasni the property shall equally devolve upon Ghasi Rai Munda, Doman Babu and Lohar Babu. That is also a proof which is against the pleadings of the defendants. Had there been rule of primogeniture prevailing, the property which was recorded in the name of Ghasni should have been devolved upon by Ghasi Rai Munda, but the legal pronouncement is not in favour of the defendants. Exts. 14 and 14/A are the judgment passed in the second appeal, which also makes it clear that if parties to the suit intends to rely on principle of rule of primogeniture, they will have to prove it by adducing evidence. 15 23. Learned Lower Appellate Court has considered the oral evidence adduced by contesting Defendant No.1, but forgotten to consider, besides oral evidence no cogent or documentary evidence has been brought on record that family was governed by rule of primogeniture or such special rule was prevalent in the village Baredih. Documents relating to earlier litigation have been brought on record and marked as exhibits, but that too do not disclose that family was governed by rule of primogeniture and the eldest male member in the male line shall be the exclusive proprietor of Mundari Khuntkattidar Tenancy Village. Ext.12 is the judgment passed in Title Suit no.8 of 1974. The suit was brought by the ancestor of contesting defendants for declaring their right and title over the property, which was recorded in the name of Mostt. Ghasni, widow of Late Binrai Babu. Recovery of possession was also sought for. The evidence on record further indicates that the defendants had not given correct genealogy in the earlier litigation, but after considering the documents on record, learned Trial Court has held that founder of the village Gokul Singh Munda was having four sons and names of those sons are Ghasi Rai Munda, Doman Babu, Lohar Babu and Binrai Babu. In that very suit, the defendants had tried to bring on record that Gokul Singh Munda was having two sons, namely, Ghasi Rai Munda and Binrai Babu and after death of Binrai Babu, the land recorded in his name was later recorded in the name of his widowMostt. Ghasni. Mostt. Ghasni enjoyed the property for her maintenance during her lifetime. After her death, aforesaid Title Suit no.8 of 1974 was brought by the contesting defendants. The suit was contested by Doman Babu and Lohar Babu and lastly it was decided that the properties left by Mostt. Ghasni shall equally be devolved between remaining three brothers, namely, Ghasi Rai Munda, Doman Babu and Lohar Babu. 24. Two things are important to be mentioned herein. The property recorded in the name of Mostt. Ghasni was not allotted to her husband for Khorpos and no such evidence was brought 16 on record. Since the said suit was decided in terms that all the three surviving sons of Gokul Singh Munda shall acquire 1/3rd share in the property left by Mostt. Ghasni is sufficient proof that rule of primogeniture was not prevalent in the family. Had it been so the property recorded in the name of Mostt. Ghasni should have been declared to be acquired by Ghasi Rai Munda, who was the eldest son of Gokul Singh Munda. The contesting defendants have further failed to bring on record as to when and under what circumstance other properties recorded in the name of plaintiffs and other defendants were given to them for their maintenance and Khorpos. The Trial Court in its judgment in Paragraphs 46 to 51 and 54 has elaborately discussed the documents and evidences relied upon by the plaintiffs and contesting defendants. It is settled principle of law that a custom to have the force of law must be ancient, continuous, uniform, reasonable and survey and that should not be contrary to equality and good conscience. 25. By referring the report submitted by the then Settlement Officer and the portion relevant to the issue involved referred to above from the authentic book of S.C. Roy clearly suggest that rule of primogeniture for Mundari Khuntkatti village was not a custom lex loci and, therefore, if any family or in any village if such rule was prevalent they will have to come up with positive evidence and conclusive documents in that regard. The discussion made by the Trial Court is sufficient to reach to a finding that the defendants have failed to prove that rule of primogeniture was either prevalent in the family or in the village Baredih. 26. In the result, answer to the substantial question framed for decision of this second appeal is in affirmative that the Lower Appellate Court has erred in law in holding that the family shall be governed by rule of primogeniture. The judgment and decree passed by the learned Lower Appellate Court stands set aside and the judgment and decree passed by the Trial Court in 17 Partition Suit No. 188 of 1985/63 of 1986/140 of 1987 stand affirmed. 27. Accordingly, this second appeal is allowed.
28. No order as to costs (D. N. Upadhyay, J.) Jharkhand High Court Ranchi Dated: 2nd March, 2015 Sanjay/AFR