LexHARIHAR PRASAD SINGH AND ORS. versus BALMIKI PRASAD SINGH AND ORS.
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932 HARlHAR PRASAD SINGH AND ORS .. v. BALMIKI PRASAD SINGH AND ORS. December 10, 1974 IM. H. BEG, A. ALAGIRISWAMI AND v. R. KRISHNA IYER, JJ.] Hi11du Law-Successio11-Special family custom, Proof of. Code of Civil Procedure (Act 5 of 1908) 0.22 a1td 0.41, rr. 4 a1td 3.l- F11i/ure to implead parties and legal represematives-Efject of. A suit was filed by the plaintiffs claiming to succeed to th~ estate of R,, a Bhu.mihar Brahmin. The basis of the claim was a special custom of the family to whi:h the parties belonged, though under ordinary Hindu Law they would not be entitled' to succeed to !he estate being related to R in a distant degree. For establishini~ the custom the plaintiffs sought to prove 52 instances. The trial court held that 49 instances ·were proved and decreed the suit. The High Court, in appeal, held that none of the inslances were proved and allowed the appeal. Jn ap~al to this Court, a[>art from the contention that the High Court·was ·Wrong, the app·ellants (plaintiffs) also contended that the respondents' (defon- dants) 3,ppeal to the High Court should have been dismissed as parties WE>re riot properly brought. on record; while the respondents raised the preliminary objection that the appeal to this Court should be dismissed, because the leg.al :representative of one of the deceased plaintiffs was not brought on record. Dismissing the appeal, HELD : l(a) A.ccording to the plaint the parties are descendants of M and ·the plaint proceeds on the basis of the custom prevai/i11g i11 the family of M. Ou! of the 52 instances only 3 belonged to the family of M. Merely because the evidence with regard to various branches. which are said to be desccndc:d .from P-a remote ancestor who lived five or six hundred years ago-was llet in without any objection from the defendants, .it could not be assumed or helld ·that such evidence was admissible. Besides, the evidence put forward, tbou11h accepted on bol:b sid~s with regard to persons descer.ded from P. is more a matter of tradition without much historical value. It is of very little eviden!iary value and of little assi-stance in deciding the issues in the case. The evidenc:e to be admitted cannot travel beyond the pleadings, and therefore, the only evidence which can be taken into account is of the three instances in M's family. 1935 C~D, H; 936 B; 938 B; 939 C-G] (b) What must be proved is that the usage has been acted upon in practice for such a long· period and with such invariability .as to show that it h:r>, by common consent. been submitted to as the establiShed governing· rule,, of the famny. The evicl~n-~,should be clear and unambiguous, thou!?h instances in support of a family custom may not be many and frequent. [938 G-H; 942 D-E] , . (c) The initilll onus of proving the special family custom lies on the plain- tiffs. [942 EJ . Ramalakshmi Ammal v. Siva11atha Perumal Setf111rava, 14 M.l.A. 570, 585 .applied. Puspavathi v. Vishweswar A.I.R. 1964 S.C. 118, followed. (d) in a .case' like this it is the documentary evidllnce that would show tM actual attitude of the parties and their consciousness regarding the cu5tom fa more important than any oral evi~ence that was given in the case. Till t~!s · ·.case, the appellar1ts, who are not ignorant persons but who are confirmed ltt1- !lllnts nowhere made a claim solely on the basis of the custom which they aw now putting forward. On the •:Ontrary, they have been siding with the con .. ·testing defendantn. Their attitude throughout is consistent only with their consciousness that they had no right to any share in R's estate. They had not ap~ared a» witn~sses and given evidence. where they would have been the best J)ersons to explain the circumstances relating to the instances or explain the , contents of documents which _are not consistent with the custom p1caded. Some A B c D E F G H / / A . B c D E F G H H· '· SINGH v. B. P. SINGH (Alagirlswaml, /,) 933 documents in which nearer reversioners seemed to have recognised the right of more distant reversioners could not be relied upon In the absence of any evidence by the parties to those documents. who are parties to th~ present suit, · as to why and how those documents were executed or why the recitals were p1:.t in, in those documents. On earlier occasions, whenever they put forward a claim it was on the liasi-3 of being near reversioners and sometimes on the basis of
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