State of M.P. Vs. Kishan and anr.

- hindu succession act,1956[c.a.no.30/1956] -- section 8: [d.v. shylendra kumar, j] general rules of succession recognition of customary law - whether the customary practice prevalent in a community can prevail over the statutory provisions, particularly a customary practice of aliyasanthana can prevail over the provisions of section 8 of the hindu succession act 11956 and whether the parties by their conduct can start a custom afresh, though such custom was not prevalent earlier but sought to be followed by the act of the parties? held, 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 paper 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 pleaded that they have adopted or begun such a custom thereafter. on facts, held, a mere request made by the propositus requesting his son-in-law to remain as mane aliya does not attract the customary practice of aliyasanthana into the family and therefore no benefit can be claimed by the so called mane aliya to insist that the practice of aliyasanthana should be followed in the family.order1. delay condoned.2. so far as respondent no. 1 shri kishan son of baxi lal is concerned, it is pointed out that he has already under gone the sentence of imprisonment passed by the trial court which was 7 years ri. in the high court, the appeal against the conviction was preferred by two accused persons. so far as respondent no. 1 shri kishan is concerned, the high court has noted in its judgment that his appeal stood withdrawn and, therefore, there was no decision in appeal insofar as accused shri kishan is concerned. in the special leave petition filed before this court, he should not have been joined as respondent at all. the learned counsel for the state points out that it i san error by which this accused was impleaded as respondent in the special leave petition. as notices were issued in the special leave petition and further as respondent no. 1 was being served, this court directed non-bailable warrants to be issued in execution whereof respondent no. 1 herein has been taken into custody. we direct the petition against respondent no. 1 shri kishan s/o baxi lal to be dismissed as wholly unwarranted. the nbw issued against him is recalled. let respondent no. 1 shri kishan be released forthwith, if he is in custody.3. as regards respondent no. 2, heard learned counsel for the parties. orders reserved.