The custom followed in one family can be different from the one followed in another, and the onus of proving which custom is applicable in the case lies on the party who is asserting that such a custom should be applied. The single judge bench consisting of J. Meenakshi Madan Rai, decided upon the matters of applicable customary law in a land dispute in the case of Nil Kumar Dahal and Another v. Indira Dahal and Others [Civil Appellate Jurisdiction RFA No. 10 of 2017].
The appeal arises from a Suit of Declaration, Recovery of Possession, Injunction and other Consequential Reliefs against the respondents. The appellants or the plaintiffs in the previous suit were blood brothers and sons of Devi Prasad Dahal whereas the respondents were the step mother and the daughter of the step brother of the plaintiffs. The plaintiffs claimed that since they are governed by the Mitakshara School of Hindu Law, the jiwni land, kept aside by their late father from ancestral properties, should be given to them. The plaintiffs stated that their father had laid dual conditions for the jiwni land to be passed on to the son “who would look after and perform death rites”. The plaintiffs claimed that these conditions had been satisfied and thus they should be given full possession of the property. The respondents on the other hand stated that the plaintiffs had left the house several years back, willingly, and had failed to take care of the father or perform his death rites. Further that she and her son had been in physical possession of the property for years, had taken care of the father and performed his birth rites. So, according to the Law of the Land, the respondents had rights over the disputed property.
The Trial Court ruled that the plaintiffs had in fact not taken care of the father as per the evidence and ruled the judgement against them. Aggrieved, the plaintiffs approached the High Court, contending that Trial Court had illegally ordered the mutation of the land in favour of the defendant. The HC held that the trial court had failed to appreciate the “uncontroverted evidence of their witnesses”. Placing reliance on the ratio of Karedla Parthasaradhi v.Gangula Ramanamma (Dead) Through Legal Representatives and Others [AIR 2015 SC 891], it was contended that the wife is the Class I heir of her husband and entitled to his properties on his death. Further, relying on Daya Ram v. Sohel Singh [(1908) P.R. No. 110 1906, F.B.], the court held that they “were aware of the myriad of castes and customs of the country and that custom in one family may not necessarily be the custom of another family and thereby the lack of uniformity in customs. In other words, it is accepted in our country that every family may have their own customs but it is for the person asserting it to establish that such a custom exists by sufficient proof”.
Eventually, allowing the appeal partially, the HC decided that “In the absence of any statutory provision dealing with Succession in the State and as the Hindu Succession Act, 1956, has not been extended and enforced in the State but considering that the Courts in Sikkim have applied the provisions of the Laws of the country where the Laws in Sikkim are inadequate or do not cover a specific area, it stands to reason that the provisions of the Hindu Succession Act, 1956, can be invoked and applied for the purposes of determining matters relating to Succession in Sikkim, involving parties to whom the personal Law is applicable, till specific Laws occupy the field”.
