@JUDGMENTTAG-ORDER
1. The plaintiffs are the appellants. They filed a suit for declaration of their title over Plaint-B and F Schedule properties, for recovery of possession
of plaint-B Schedule and for confirmation of possession over Plaint-F Schedule properties.
2. The suit was resisted by the defendants. The suit was dismissed by the trial Court and that dismissal was confirmed in appeal by a learned Single
Judge of this Court. Hence, this appeal under Clause 10 of the Letters Patent.
3. The plaintiffs are the sons of one Dhuma Majhi. Dhuma Majhi had a brother, Batol Majhi alias Bajol Majhi, who died before 1961, leaving
behind his widow and daughter Kandri Majhian. Of course, there is controversy, whether he died in the year 1961 or in the year 1926. Whatever
it be, he left a widow and a daughter Kandri Majhian. The defendants in the suit are the husband of Kandri Majhian and her four sons and the
daughter. According to the plaintiffs, the suit properties were ancestral and on the death of Batol Majhi, his married daughter Could not inherit and
at best his widow had only a limited interest and the plaintiffs were entitled to inherit the property. According to paragraphs 6 and 7 of the plaint, a
custom was prevalent that on the death of a Santhal, his married daughter or widow were not entitled to inherit the property absolutely and the
married daughter had no right at all. This was controverted in the written statement. The claim of the plaintiff s that it was the ancestral property
was also controverted. It was pleaded that the aforementioned properties were the separate properties of Batol Majhi. It was also pleaded that the
Schedule-B properties were recorded in the name of Batol Majhi, long ago, and that Schedule-F (tank) was recorded in the joint names of Dhuma
Majhi and the widow of Batol Majhi, since it was an irrigational tank. Thus, the claim of the plaintiffs that they were entitled to inherit exclusively on
the basis of custom was disputed. In support of their plea of custom, the plaintiffs examined two witnesses, one an young man of 30 years of age
and the other an old man of 70 years of age belonging to a neighbouring village. The trial Court found that the 30 years old young man was not
competent to give any evidence on the custom among the Santhals of that village. The trial Court also found that the evidence of the 70 years old
witness from the neighbouring village was general and was not specific and he could not say anything about the custom followed by the Santhals in
the village in question. As against this, the defendants also examined some witnesses. The trial Court found that those witnesses had given specific
evidence to the effect that on the death of a Santhal, the properties were inherited by a married daughter. They spoke of specific instances of such
occurrence in the village in their evidence. The trial Court also noticed that in the 1926 Abdul Survey, Schedule-B properties were recorded in the
name of the widow of Batol Majhi and that the tank alone was recorded in the joint, names of Batol Majhi and Dhuma Majhi, the father of the
plaintiffs. From such evidence, the trial Court came to the conclusion that the defendants have shown there was no custom by which the married
daughter was excluded. Whatever it be, the trial Court held that the plaintiffs had not established any custom of exclusion on the married daughter,
as pleaded by them. Taking the view that the parties had become sufficiently Hinduised and are governed by Hindu Law, the trial Court proceeded
to apply the Hindu Succession Act as governing the succession and dismissed the suit.
4. The learned Single Judge in appeal by the plaintiffs agreed with the trial Court in its finding, on an appreciation of the evidence, that the plaintiffs
have not established the custom set up by them. The learned Single Judge also proceeded to confirm the finding that the parties were sufficiently
Hinduised so as to hold that they were governed by Hindu Law and in the circumstances the trial Court was justified in dismissing the suit. Thus,
the appeal was dismissed. This dismissal is challenged in this appeal.
5. The learned counsel for the appellants drew our attention to the decision of the Supreme Court in Madhu Kishwar and Ors. v. State of Bihar
and Ors. AIR 1996 SC 1865, wherein, their Lordships have held that Santhals are governed by Customary law and that, that custom varies from
people to people and region to region. Their Lordships also held that neither the Hindu Succession Act nor the Shariyat Law governed the tribals
and they were governed by customary law.
6. It is, therefore, clear that what is relevant in this case, is, whether the plaintiffs, on whom the burden lay, have established a custom among the
tribals in question of exclusion of a married daughter from inheritance. As we have noticed, there was also a controversy whether the Schedule-B
property was the ancestral or it belonged exclusively to Batol Majhi, the predecessor of the defendants.
7. We find on an appreciation of the evidence in the case, in the light of the reasons given by the trial Court and the learned Single Judge, that the
learned Single Judge was fully justified in affirming the finding of the trial Court that the plaintiffs have failed to prove the custom of a married
daughter being excluded from inheritance. Once the plaintiffs failed to prove the custom set up by them, obviously they are to be non-suited. We
have also aoticed that the plaint Schedule-B property was recorded in the exclusive name of Batol Majhi. The F Schedule, the tank alone, in view
of convenience of possession of the properties jointly, was recorded in the joint names of the widow of Batol Majhi and Dhuma Majhi. This shows
that there was a difference between the two sets of properties. This circumstance also, in our view, justifies the conclusion of the Court that the
plaintiffs have failed to prove that they have exclusive title to the Plaint B Schedule Properties. Even if the Plaint-F Schedule property was a joint
property of the parties, obviously, the plaintiffs could not get relief based on a claim of exclusive possession since parties must be considered to be
in joint possession. Nor could they get a declaration of their exclusive title or possession as claimed.
8. On an appreciation of the pleadings and the evidence in the case, and on hearing counsel, we are satisfied that no ground has been made for
interference with the decision of the learned single Judge. We, therefore, confirm the said decision and dismissed this appeal.
We make no order as to costs.