Bejla Oraon vs Kali Das Oraon
- Court
- Supreme Court
REPORTABLE
2026 INSC 672
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. __________________ OF 2026
(Arising out of SLP (C.) No. 23458 of 2024)
BEJLA ORAON … APPELLANT(S)
VERSUS
KALI DAS ORAON & ORS. … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL, J.
1. Leave Granted.
2. Under challenge, at the instance of the original Plaintiff now represented
through legal heirs, is the judgment and order dated 10 June 2024 passed by the
High Court of Jharkhand at Ranchi in Second Appeal No. 35 of 1995. The
st
impugned judgment upheld the findings returned in first appeal by the 1
1
Additional District Judge, Gumla in TA No. 42 of 1990 which in turn affirmed
2
the judgment and decree of the Munsif, Gumla in TS No. 22 of 1975 . In other
words, we are asked to examine the correctness of concurrent findings returned
by the courts below.
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2026.07.09
12:06:39 IST
Reason:
1
First Appellate Court
2
Civil Court
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3. One Sukhu Oraon (the grandfather) had three sons, namely Dhungru,
Ledura and Bhoula. The plaintiff (Sukhu) was Dhungru’s second son and his
grandfather namesake. He claimed ownership of all land owned by Sukhu. Such
a claim was opposed by Bhoula’s daughter, Budhain, and her husband Punai (the
original defendants 1 and 2). This is based on Sukhu’s second son namely, Ledura,
having apparently taken Punai as his ghardamad, for he had no children of his
own. It is the undisputed case of the parties that in the local customs that govern
them, daughters have no right of inheritance. The defendants claim that Ledura’s
property had come to Punai, who is now deceased. The defendants also state that
Bhoula having died, Budhain and Ledura partitioned the properties amongst them
th
vide deed dated 27 February 1975, whereas the plaintiff submits that since they
had no title whatsoever such a partition deed would be non est. For ease of
understanding, a family chart is placed below:
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4. The civil court and the first appellate court framed and confirmed
respectively the issue as to whether Punai was Ledura’s ghardamad . It is in the
impugned judgment that the High Court framed the question of the uncle’s
(Ledura Oraon) ability to adopt a ghardamad (Punai) . In view of the concurrent
dismissal of the plaintiff’s suit, such relationship has been accepted by the courts.
5. Halsbury's Laws of England , (Fourth Edition), Volume 12(1) describes the
following attributes of a ‘custom’:
606. Essential attributes . To be valid, a custom must have four essential
“
attributes : (1) it must be immemorial; (2) it must be reasonable; (3) it must
be certain in its terms, and in respect both of the locality where it is alleged
to obtain and of the persons whom it is alleged to affect; and (4) it must
have continued as of right and without interruption since its immemorial
origin. These characteristics serve a practical purpose as rules of evidence
when the existence of a custom is to be established or refuted.
[Page No. 160]
626. Nature of proof. All customs of which the courts do not take judicial
notice must be clearly proved to exist, the onus of establishing them being
upon the parties relying upon their existence. Proof must be made either
by matter of record or by evidence of usage since time immemorial.
Evidence to prove a custom must not only be consistent with the custom
which is alleged, but must also prove a custom which is no wider than that
alleged. If the evidence tends to prove a custom wider than that which is
alleged, the party seeking to establish the custom is not at liberty to adopt
part only of the evidence and to reject the rest.
[Page No. 177]
627. Usual method of proof. In proving an immemorial custom, the usual
course taken is to call persons of middle or old age to state that in their
time, usually at least half a century, the custom has always prevailed. This
is considered, in the absence of countervailing evidence, to show that the
custom has existed from all time. There are two sorts of countervailing
evidence. First, other old person may be called to show that there was an
interruption during the period spoken of by the first set of witnesses;
secondly, evidence may be given that, from the nature of the case, it was
quite impossible that such a right should have existed from time
immemorial, or that there is some legal difficulty or obstacle in the way
which makes the alleged assertion of the right incompatible with the law
of the country. Whether the evidence supports the custom as alleged or not
is a question of fact for the court. A custom possible in law, being
reasonable and otherwise fulfilling the requisites of a good custom, may
be established by very slender evidence.
[Page No. 178] ”
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6. We must at this stage look to how a custom is to be proved before a court.
A perusal of previous decisions of this court reveals the following aspects:
6.1 He who alleges the custom must prove it. He must also prove that he
is in fact governed by said custom;
6.2 In order for a custom to be binding, long usage thereof has to be
established or in other words its practice and prevalence has to be shown;
6.3 It is proved by general evidence by the members of the tribe or family.
If such a custom is supported by public record then it can be safely acted
upon;
6.4 Custom must be certain and reasonable; not immoral or optional or
opposed to public policy;
6.5 Once judicial notice had been taken of a particular custom, the same
need not be proved independently in every proceeding;
6.6 Another form of a custom acquiring the force of law is that the same
be legally confirmed; or still further a statute may be passed on the basis
of or in regulation of that custom transforming it into a statutory right;
6.7 A custom once disallowed cannot, once again be revived.
6.8 Section 48 of the Evidence Act, 1872 provides that the opinion of
those persons who are likely to know of the existence of the custom are
to be taken into account by the court.
[See: Abdul Hussein Khan v. Bibi Sona Dero , 1917 SCC OnLine PC 68,
Aliyathammuda Beethathebiyyappura Pookoya v. Pattakal Cheriyakoya ,
(2019) 16 SCC 1; Salekh Chand v. Satya Gupta , (2008) 13 SCC 119; Gokal
Chand v. Parvin Kumari , (1952) 1 SCC 713; Ujagar Singh v. Jeo , 1959 SCC
OnLine SC 195; Darshan Singh v. Ram Pal Singh , 1992 Supp (1) SCC 191]
7. Having considered the principles enumerated above, we now turn our
attention to the evidence on record. Below is a summary of the evidence led by
the parties:
8. As noted above, the present case is one of unanimity amongst the courts
below. The plaintiff’s case according to them merits dismissal. What is the scope
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available to this Court under Article 136 of the Constitution is discussed in the
following judgments:
8.1 A three-judge Bench of this Court in Srinivas Ram Kumar v. Mahabir
Prasad , 1951 SCC 136 held:
“9. ... When the courts below have given concurrent findings on pure
questions of fact, this Court would not ordinarily interfere with these
findings and review the evidence for the third time unless there are
exceptional circumstances justifying departure from this normal practice.
The position may undoubtedly be different if the inference is one of law
from facts admitted and proved or where the finding of fact is materially
affected by violation of any rule of law or procedure.
10. The practice adopted by this Court is similar to what has always been
acted upon by the Judicial Committee. To quote the words of Lord
Thankerton in Bibhabati Devi v. Ramendra Narayan Roy [Bibhabati Devi
v. Ramendra Narayan Roy, (1945-46) 73 IA 246 : (1946-47) 51 CWN 98 :
1946 SCC OnLine PC 30] , “it is not by any means a cast-iron practice”;
there may occur cases of unusual nature which might constrain us to
interfere with the concurrent findings of fact to avoid miscarriage of
justice. ...”
(emphasis supplied)
8.2 Bharwada Bhoginbhai Hirjibhai v. State of Gujarat , (1983) 3 SCC 217
reiterated in Sushma v. Nitin Ganapati Rangole, 2024 SCC OnLine SC 2584:
“5. … Such a concurrent finding of fact cannot be reopened in an appeal
by special leave unless it is established : ( 1 ) that the finding is based on
no evidence or ( 2 ) that the finding is perverse, it being such as no
reasonable person could have arrived at even if the evidence was taken
at its face value or ( 3 ) the finding is based and built on inadmissible
evidence, which evidence, if excluded from vision, would negate the
prosecution case or substantially discredit or impair it or ( 4 ) some vital
piece of evidence which would tilt the balance in favour of the convict
has been overlooked, disregarded, or wrongly discarded. ....”
(emphasis supplied)
8.3 Mithilesh Kumari v. Prem Behari Khare , (1989) 2 SCC 95
“5. The first question, therefore, is whether or not to interfere with the
concurrent findings of fact of the learned courts below. It has been said
in a series of decisions that ordinarily this Court in an appeal will not
interfere with a finding of fact which is not shown to be perverse or
based on no evidence, ( Babu v. Dy. Director [(1981) 4 SCC 246 : AIR
1982 SC 756] ), but will interfere if material circumstances are ignored
by the High Court. Prasad v. Govindaswami Mudaliar [(1982) 1 SCC
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185 : AIR 1982 SC 84] . In Dhanjibhai Ramjibhai v. State of
Gujarat [(1985) 2 SCC 5 : 1985 SCC (L&S) 379 : AIR 1985 SC 603]
it was observed that where a finding of fact has been rendered by a
learned Single Judge of the High Court as a court of first instance and
thereafter affirmed in appeal by an appellate bench of that High Court,
this Court should be reluctant to interfere with the finding unless there
is very strong reason to do so. There is no reason why this should not
apply to cases where the first appellate court was the district court. It
was noted in Ganga Bishan v. Jai Narain [(1986) 1 SCC 75 : AIR 1986
SC 441] , that ordinarily this Court, under Article 136 of the
Constitution, would be averse to interfere with concurrent findings of
fact recorded by the High Court and the trial court. But where there are
material irregularities affecting the said findings or where the court feels
that justice has failed and the findings are likely to result in unduly
excessive hardship this Court could not decline to interfere merely on
the ground that findings in question are findings on fact. So also
in Uday Chand Dull v. Saibal Sen [1987 Supp SCC 506 : AIR 1988 SC
367] , it was said that in an appeal by special leave under Article 136of
the Constitution of India where there are concurrent findings of the
courts below this Court is not called upon to reconsider the entire
evidence in detail to ascertain whether the findings are justified. In Ram
Singh v. Ajay Chawla [(1988) 1 SCC 364 : AIR 1988 SC 514] , where
the concurrent finding was that the appellants were in unauthorised
occupation of premises of which the respondents were the owners this
Court did not interfere with the concurrent finding of fact.”
(emphasis supplied)
8.4 In Ramachandran v. Vijayan , 2024 SCC OnLine SC 3384 this court
reiterated the grounds on which interference with concurrent findings of fact in
civil matters is justified:
55. It is evident from the above that findings with respect to schedule
“
properties in item No. 2 are concurrent. This Court has reiterated many
10
times that concurrent findings of fact are not to be generally interfered
with unless special circumstances are shown warranting such
interference. The scenarios in which exercise of power under
Article 136 of the Constitution of India would be proper, non-
exhaustively, can be culled out as thus:
55.1 Interference in concurrent findings has been termed justified if the
finding -
a) recorded does not emanate from the pleadings;
b) is foreign to or entirely divorced from the evidence on record;
c) is reached on the basis of the evidence which is irrelevant or
extraneous and material evidence is ignored affecting its sanctity;
d) runs contrary to any provision of law;
e) is such that a reasonable judicial mind could not have arrived at it
and/or the same is arbitrary;
f) arrived at is perverse and the soundness of reason is compromised.
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55.2 Apart from the above-mentioned scenarios, a Court would also be
justified in interfering with findings concurrent in nature if it is of the
view that they cause undue hardship to the parties.
55.3 Additionally, when the findings are such that the conscience of the
court is shocked, interference would be called for.
56. While the above are some contexts in which the Court may exercise
its plenary power, the following overarching principles should always be
considered prior to delving into such exercise:
56.1 The power has to be used sparingly and only when grave injustice
is being caused to the parties of the dispute;
56.2 The burden of proof to show that concurrent findings are unjust,
warranting interference by this Court is on the appellant.
56.3 Interference would not be warranted merely because in a given set
of facts, a view different from the one which stands taken by the courts
below, is possible.
56.4 It is not within the realm of practicality that all possibilities be
mapped out, as to when invocation of this power would be felicitous. The
court has to take such a call having employed its wisdom, reason and
judicial thought.”
9. In order to satisfy the circumstances described in the judgments, let us take
a bird’s eye view of the testimony on record. Primarily, the testimonies revolve
around following six issues:
Whether partition took place between Sukhu's branch and Ledura/Bhola?
PW 1 Chief: The partition did not take place between my father and others. No partition
has ever taken place between me and my both uncles.
Cross: The partition did not take place in family.
PW 2 Chief: The partition of landed property did not take place between Dungru,
Ledra, Bhola because I never knew about partition.
Sukhu, Buranga Charo, Ledra all were residing joint. The partition did not take
place in them.
PW 3 Chief: There did not take place partition between Ledura, Bhola and Sukhu
regarding land nor any partition had taken place in between Sukhu and Ledura
Bhola at any point of time.
PW 4 Chief: No partition had taken place between Ledra, and Bhola.
DW 1 Chief: After death of bhola Ledura had done partition of my land.
Cross: In Udaon case there does not happen share/ partition in between father
and son. I do not know as in happening of partition of partition between father
and daughter, how much would be kept by father and how much would be kept
by daughter.
DW 2 Chief: The partition between Ledura -Bhola and Sukhu had taken place earlier
from measurement.
Oral partition had taken place between Ledura-Bhola and Sukhu.
Cross: The partition had taken place 5 years before from measurement.
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In Udaon Caste, no partition takes place between father and son in the lifetime
of father.
DW 3 Chief: It was Sukhu who had separated Dungru from other two brothers before
measurement.
Cross: Daughter has no share. But partition can take place between father-
daughter.
DW 4 Chief: Partition had not taken place in between both (Bhola and Ledura).
Cross: I had not seen being partition of any land between Ledura and Sukhu.
When partition had taken place, I had not seen. There was not done partition
between Ledora and Budhen. Ledora has written land to Bhuden
Whether daughters get any right/share in Udaon caste property?
PW 1 Chief: We belong to Udaon caste. In Udaon caste there is no right vested in
women over landed property. The daughter also does not have any right over
landed property.
The women who do not have son, she has only right of maintenance.
PW 2 Chief: Udaon resides in my village. I know their customs and usages. In udaon
caste women do not get any right. The women who does not have son she has
only right maintenance, but she does not get right over of landed property.
The Udaon caste person who has only daughter, then his landed property on death
would be received to his heir. If there is no heir then if that Udaon has two-three
brothers then son of his brother will get. If Udaon dies having been separate from
brother even then son of his brother will get right. If during his lifetime he writes
land to his daughter, even then his daughter will not get right.
PW 3 Chief: In Udake caste there does not arise any right in favor of women. The
daughter of this caste does not have any right, she does not get any share.
PW 4 Chief: In Udaon caste women has no title. In Udaon caste daughter has no title.
The daughter does not get share.
Which Udaon person has only daughter and there is nobody in family then who
will get land on death of that Udaon, I cannot say about this.
PW 5 Chief: In Dadatmafi the daughter does not get any share.
DW 1 Cross:
In Udaon caste, sons gets share in landed property of father without getting
written. In Udaon caste daughter does not get share without getting executed
deed/without getting written.
This is not true as in Udaon caste the daughter does not have any right, therefore
I did not get any right from lease.
DW 2 Cross: If Udaon has only one daughter and there is brother, nephew then on death
of that Udaon, if land is not written in favor of daughter, then brother/nephew
would get title. If in two Udaon brothers one Udaon has died, who has only one
daughter, then in such situation the title of brother who has died, will not devolve
to his other brother, rather it will go to his daughter. In Udaon caste if title is not
written to daughter, then that daughter will not get share.
There is no need of writing land in favour of son from father. He automatically
gets right/title.
DW 3 Cross: If landed property was not written to Budhen Punai, even then title would
have arisen because she there was daughter existing. Daughter has no share. But
partition can take place between father-daughter. As much as father would like
to give same according to his wish and part from this I know custom/ usage. In
partition between two brother both will get equal share. Father gives to his
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daughter according to his wishes and also does not give, this is also called gift.
There is difference between gift and share.
Daughter and brother would have equal share, as many as daughters, all will get
share.
DW 4 Chief: In our caste landed property is given to daughter and son in law.
I do not know as daughter does not have any right over the land o father or uncle.
Cross:
It is true that I want that let my daughter should get right. It is not true that the
land was got written to daughter secretly.
Whether son-in-law/gherdamad gets rights in property?
PW 1 Cross: I know Jamatoli Shivram village. There are situated my ancestral land.
My share there is alone. My father was earning over above land. I do not know
as he got that landed property from his father in law.
Ledura and Bhola did not have any right and share in landed property of Jamatoli
Shivram.
DW 1 Chief: In Udaon caste the house in law has title in landed property of father of
daughter means in landed property of father in law. Sukhu has also found land in
Shivraj Jafroli in the capacity of house in law (gherdamad).
Cross: Punai gives vote. In voter list his name is written this. This is not true that
Punai resides in house of his father.
DW 2 Chief: Father of Sukhu had gone to Shivram Jamatoli as gherdamad. He was
residing there. He had got land- agricultural land from father in law. He was
earning from the same.
Ledura was not having his any child. He had entrusted Punai as his gherdamad.
In Udaon caste who separates from brother and keeps gherdamad, then
gherdamad gets title according to his caste. Dungru Budhu father of Sukhu had
got title because of keeping gherdamad in Shivraj.
Cross: Dungru had got land of Jamatoli by/in writing because he was gherdamad.
The gherdamad also becomes like son, if agricultural land is written to him.
DW 3 Chief: The person who having been separated from Udaon caste, resides alone,
he can keep daughter and son in law. He can keep gher damad, who will get right
of son.
Cross: The Ghardamad also has share in landed property of father. It is not
necessary that first of all after keeping for some days, then marriage is performed
and he is made gherdamad. After Roka performing marriage, he is kept for some
days in house only then one becomes Gherdamad. After performing marriage,
gherdamad goes to house o his father sometime and even he is not being taken.
After marriage Budhen was taken by Punai for some days in house of his father
for how many days and had kept her, I cannot say. I was not present on the day
of marriage of Budhen.
DW 4 Chief: He (Ledura) had brought Munai by making gharjugua.
Damru, father of Sukhu, had gone having been as son in law (ghardamad) in
village Shivram.
In our caste landed property is given to daughter and son in law.
Cross: Punai was not living in my house before marriage. He was brought after
marriage. Marriage of Punai was solemnised by Ledora. It is not true
that Punai is not my ghar-damad.
Punai does not reside in house of his parent regularly.
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Who gets the Property of an Issueless Udaon (Nephew or Daughter)?
PW 2 Chief: The Udaon caste person who has only daughter, then his landed property
on death would be received to his heir. If there is no heir then if that Udaon has
two-three brothers then son of his brother will get. If Udaon dies having been
separate from brother even then son of his brother will get right.
PW 3 Chief: In Udake caste, if there is no son and has died, then share will be of Sukhu.
DW 1 Cross: If any Udaon dies issueless and he has brother-nephew then both means
nephew and niece would get share in his land.
DW 2 Cross: If any person belonging to Udaon caste is issueless and he has nephew
and niece then on death of that Udaon, the nephew would get title.
DW 3 Cross: If two Udaon are living jointly. One brother dies leaving behind one
daughter and second is alive, and he is issueless then daughter and brother both
would have title/right.
If one Udaon is issueless and he has brother-nephew, on his death, nephew will
have right.
DW 4 Cross: Sukhu is my nephew-son. I do not have any son who took birth from me.
I do not know as if there is no son then it is nephew who becomes owner of
landed property. I do not know as daughter does not have any right over the land
o father or uncle.
If anyone dies issueless then his nephew would not get his land.
Who became entitled to the property after the deaths of Bhola, Ledura and Buranga?
PW 1 Chief: On death of Buranga Charo. I became owner of landed property. After
death of Ledura and Bhola. I became owner of land.
PW 2 Chief: In family of Dungru, Budhu, Ledura and Bhola there is yet remaining only
Sukhu. The heir of their landed property situated in Chechepat is presently
Sukhu.
PW 3 Chief: After death of all, Sukhu became entitled for all lands.
PW 4 Chief: Sukhu is entitled for land of Ledra, Bhola and Dungru.
DW 1 Cross: The lease deed was executed in my favor therefore, I got title, otherwise
I would not have got title.
When marriage was performed, prior to this, it was settled that share of my father
would be written to me. My husband has share in landed property of his father.
DW 2 Punai does not resides in house of his father. He continuously resides in in-laws
house. Gherdamad also gets his share in ancestral property.
The gherdamad is made only by father. Pity is not made.
DW 3 Cross: If landed property was not written to Budhen Punai, even then title would
have arisen because she there was daughter existing.
DW 4 Chief: Ledura had written his land to Budhen after that he died. Sukhu has no
right in land of Ledora and Bhola.
Cross: It is not true that after death of Bhola and Ledura, Sukhu became entitled
got their entire lands.
In between Bhola & Ledora on, on death of Bhola, entire land went to Ledora. If
same was not written then land of Ledora might go to Sukhu.
Whether the lease deed was validly executed or secretly obtained?
PW 1 Chief: The case has been filed only in order to break lease. After death of Ledura
I came to know about lease. In Udaon caste no one can write land without
permission. The lease deed has been got prepared secretly.
Cross: The lease was executed regarding Pakardon, Pakarchora of Chechepat…I
used to pay land revenue of Rs. 5/- of my land in Chechepat.
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I do not know as in block there has been done mutation in name of Budhen, after
getting written the lease deed. I do not know as the receipts are separately issued
in name of Budhen.
PW 4 Chief: The registry of lease has been got done by Budhen, the case is regarding
same. The case is for what purpose, regarding which land, I do not know.
DW 1 Cross: Ledura was sick at the time of getting written lease. Ledura had died in
Baishakh or Jeth. The lease deed was got written in falgun month.
The lease deed was executed in my favour therefore, I got title, otherwise I would
not have got title. Ledura has written land to me, whether permission was taken
for that or not, this I do not know. Udaon can write his land also without
permission
It is not true that we got executed lease deed secretly by concealing from Sukhu.
It is true that Sukhu does not have any title therefore I have got written lease.
DW 2 Cross: It is not true that Budhen is (illegible) daughter and she does not get any
title from getting written lease. It is not true that in order to grab title of Sukhu,
Budhen has got written lease in her favour. It is not true that Sukhu is not bound
from lease.
DW 3 Cross: I cannot remember as how many years before from death of Ledura,
Budhen had got written lease. Approximately it would have got written 2 years
before. Ledura had died 2-4 years before about four years before. I do not know
as 2-4 months before from death of Ledura, lease was written.
DW 4 Chief: Ledura had written land to Budhen after that he died. He had written his
lands.
Cross: It is not true that the land was got written to daughter secretly.
10. Now our conclusions based one each issue and the respective testimony of
the parties, are as follows:
10.1 Whether partition took place between Sukhu's branch and
Ledura/Bhola?
Almost all witnesses appear to agree that no partition took place. There was
no partition between any of the members of grandfather Sukhu’s family
that could be established by evidence. Only one witness that is DW-4 says
that Ledura had ‘written land to Bhuden’. Where the authority comes from,
for him to do so? Whether the customs governing the parties permit this,
what extent of land was given and what part thereof was retained, none of
these aspects have been touched upon, much less elaborated. As such, this
cannot be held to be proved.
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10.2 Whether daughters get any right/share in Udaon caste property?
On this point, plaintiff’s witnesses agree that a daughter does not get a share
in property under any circumstance. Defendant witnesses however are
internally inconsistent. Two of them say that a daughter can get a share if
done so through a written instrument, one says that daughter does not get a
share and the last one says she is not aware. In this situation, given that the
plaintiff’s statements withstand cross examination, they have to be
accepted. Hence, as proven, daughters do not get any right or share in the
property.
10.3 Whether son-in-law/gherdamad gets rights in property?
It appears from all the testimonies that the custom of a son-in-
law( ghardamad ) acquiring a right in the property of his father-in-law is
proved.
10.4 Who gets the Property of an Issueless Udaon (Nephew or
Daughter)?
Once again, defendant witnesses are inconsistent. DW-1 says both nephew
and niece will get property, DW-2 and 3 says nephew will get it and DW-4
says nephew will not get it. The two witnesses of the plaintiff that do allege
that a nephew will get the property appear to be doing so in the specific
facts of the case. Although PW-2 speaks generally in terms of the Udaon
caste, obviously a custom cannot be said to be established on the basis of
testimony of one witness (strictly not falling within the ambit and scope of
S.48 of the Evidence Act) since the point of view to prove a custom is long
and continuous usage.
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10.5 Who became entitled to the property after the deaths of Bhola,
Ledura and Buranga?
The plaintiff’s witnesses are ad-idem that the plaintiff would be entitled to
the property and continuing the trend, defence witnesses are again
inconsistent. DW1 claims ownership, DW-2 on the one hand says that
ghardamad has a share in property and on the other ghardamad can be
made only by father. DW-3 says that Punai would have gotten the title even
if it was not done through a written statement because he was Budhen’s
husband. DW-4 in her chief examination says that plaintiff has no right but
in cross acknowledges the possibility of plaintiff’s entitlement. It is a
matter of record that as on date, Punai is deceased. There are no other
descendants through the males in the family. SC Roy, the scholar whose
book on this community has often been relied on by this court as also the
High Court, says that in such situations, the nearest male agnate becomes
entitled. So, on that count, the plaintiff will succeed.
10.6 Whether the lease deed was validly executed or secretly
obtained?
All witnesses apart from DW-4, who deposed on this issue use the word
‘lease’. However, the Civil Court calls this deed a partition deed. It is rather
difficult for us to say, at this stage whether it was a lease deed or a partition
deed. Fortuitously, be it either, the end result is no different. It is well
established that lease deeds do not confer title. It is also well established
that a partition can be affected only amongst people who have shares
between them. In this case, only Ledura had shares and as such there was
no question of there being a ‘partition’ between Ledura and Budhen. That
being the position, the document itself becomes irrelevant as to title and
the issue as to whether it was executed in open or in secret pales into
insignificance.
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11. We notice that in Para 11 of the judgment, the Trial Court, relying upon SC
Roy’s book, has held as under:
“ 11. Shri Sarat Chandra Roy in his book the Oraon of Chotanagpur has
mentioned in pages 375 and 376 about the custom of ghardamad ship prevalent
amongst the Oraons according to him “a Oraon owner of lands who has no sons
may have recourse to either to contravenes to make a show of continuing his
family after death. He may either adopt a son to himself or take into his house a
prospective sone in law. If the adopted son belongs to his owns clan and Khunt,
and has been adopted on the other agnates of the owner agreeing in the presence
of the purchase to for go in his favour their claims to inheritance, such adopted
son acquires the full right of a son otherwise he is only entitled to inherit the
Rajhas lands of the adoptive father. A ghar dijoa son-in-law (adopted as such
before marriage) can, in no case, inherit the bhuinhari land of his deceased
father-in-law,although the Rajhas land, by reason probably of the small value
that can be attached to them and in consideration of the Labour ex-ended by the
ghardijoa over them, go to him, unless the deceased has left a brother or a
brother’s son who joint in mess and property with the deceased at the time of his
death. On page 348 it has been mentioned if there be no male issue or adopted
son, but only a ghardamad duly adopted into the house as a perspective son-in-
law by the last male owner or even by his widow a son married to a daughter of
a deceased and living in the house the Rajhas lands left by the deceased male
owner shall on the death of the widow go the such ghardamad, and bhiunhari
land shall go to the nearest male agnate or agnates.”
(emphasis supplied)
The conclusion drawn thereafter is in para 18 which is
“As stated earlier the plaintiff or his witnesses have not denied that the
defendant no.2 is a ghardamad of Ledura Oraon of the widw of Bhoula Oraon,
The defendants contention that the ghardamand may be adopted even after
marriage and, for acquisition of status of a ghardamad is not prospective son-
in-law has not been refuted by the p;laintiff under these circumstance find and
hold that defendant no.2 Punai Oraon has been adopted and kept as
ghardamand by Ledura Oraon or the widow of Bhoula Oraon. This issue is
therefore, decided against the plaintiff and favour of the defendants.”
(emphasis supplied)
This is the finding that was confirmed by the First Appellate Court. Be that
as it may, we are of the considered view, having perused the aforesaid section of
the book that the Civil Court misdirected itself since, by its own version the words
used are that there is no male issue or adopted son but only a ghardamad duly
adopted into the house by the last male owner or even his widow. In this situation,
C.A. No...../2026 @ SLP © No. 23458/2024 Page 14 of 16
it is not borne from record that Bhola, that is father of Budhain had any role to
play or for that matter that even DW-4 had explicitly adopted him. The consistent
position is that Ledura who is the uncle in law had adopted Punai. It is nowhere
established that an uncle-in-law can adopt his niece’s husband as his ghardamad
within the prevalent customary law. Further, the alleged partition was between
Budhain and Ledura with the necessary consequence that Ledura’s portion went
to Punai, but since Punai was actually the ghardamad of Bhola and not Ledura, is
this even possible and permissible.
The High Court even though framed the issue did not answer the same
simply because there were concurrent findings. Ordinarily, once a substantial
question is framed, the parties have to be heard and issue decided accordingly. If
it was only the concurrent nature of findings that weighed with the High Court
and nothing further, then there was no reason to formulate that question.
12. We found that the High Court observed that since it is not established that
there is bar against adoption by uncle-in-law, no adverse inference can be drawn.
Well, as we have discussed above, those who allege a custom must be the one to
prove it. Merely observing that the opposite to what has been alleged is not clearly
stated, cannot be stated to be sufficient. To say the least, that is not the appropriate
answer to a substantial question of law within the meaning of Section 100 CPC.
13. Taking a cumulative view of the matter, we are of the considered view that
in the present facts the customs as alleged, apart from the ghardamad’s eligibility
to get property of his father-in-law could not be proved. The decision made by us
places reliance on well-established and acknowledged sources of the law as it
prevails in this community which, at the cost of repetition, postulates that in the
absence of a ghardamad or any other male heir directly related to the land owner
i.e. the male members of the family , the nearest male agnate will have the right
in the property. Hence, the judgments of the courts below are set aside. Plaintiff's
suit is decreed. All necessary consequences to follow.
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14. The appeal is allowed. Costs are to be borne by the parties themselves.
Pending application(s), if any, shall stand disposed of.
.........................………….……..……………..J.
( SANJAY KAROL)
.........................................………..……………..J,
( NONGMEIKAPAM KOTISWAR SINGH )
New Delhi
July 9, 2026
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