New Delhi: The Supreme Court, has held, in an important development concerning the customary inheritance practices of the Oraon tribal community, that an uncle-in-law cannot validly induct his niece's husband as a ghardamad (resident son-in-law) under the customary law governing the community, with a bench of Justices Sanjay Karol and Nongmeikapam Kotiswar Singh setting aside concurrent findings returned by three courts below and decreeing a nearly five-decade-old suit in favour of the original plaintiff's legal heirs.
The dispute traced back to one Sukhu Oraon, who had three sons, Dhungru, Ledura and Bhoula. The original plaintiff, also named Sukhu, was Dhungru's grandson and claimed ownership of all land held by his namesake grandfather. This claim was resisted by Budhain, daughter of Bhoula, and her husband Punai, who contended that Ledura, having no children of his own, had taken Punai as his ghardamad, and that after Bhoula's death, Budhain and Ledura had partitioned the family properties between themselves under a deed dated 27 February 1975. It was undisputed between the parties that, under the customs governing them, daughters ordinarily have no right of inheritance.
The Munsif, Gumla, dismissed the plaintiff's suit, a finding affirmed by the 1st Additional District Judge, Gumla, in first appeal, and subsequently by the High Court of Jharkhand at Ranchi in Second Appeal No. 35 of 1995 by judgment dated 10 June 2024. The civil courts had accepted that Punai was Ledura's ghardamad, and it was only at the High Court stage that a substantial question was framed on whether an uncle, as opposed to a father-in-law, could adopt a ghardamad, a question the High Court ultimately left unanswered on the ground that the finding was concurrent.
Reiterating the settled principle that this Court is ordinarily reluctant to reopen concurrent findings of fact under Article 136 of the Constitution, and that interference is warranted only where a finding is perverse, unsupported by evidence, contrary to law, or productive of grave injustice, the Court nonetheless proceeded to examine the record, noting that the case turned on proof of custom. Referring to Halsbury's Laws of England on the essential attributes of a valid custom, being that it must be immemorial, reasonable, certain, and continuous, the Court set out the governing principles distilled from its own precedents: that the party alleging a custom must prove it and show that he is in fact governed by it, that long usage must be established through general evidence, and that a custom, once disallowed, cannot be revived.
Undertaking what it described as a bird's-eye view of the testimony on six central issues, the Court found that the evidence established, first, that no partition had in fact taken place within the family, and second, that daughters do not inherit under the customary law of the Udaon (Oraon) caste, since the plaintiff's witnesses were consistent on this point while the defence witnesses were mutually contradictory. It also found the custom of a ghardamad acquiring rights in his father-in-law's property to be established. However, on the question of who succeeds an issueless member of the community, the defence evidence was again found to be inconsistent and insufficient to establish a custom, since a custom cannot rest on the testimony of a solitary witness within the meaning of Section 48 of the Evidence Act, 1872.
The Court found the decisive flaw in the courts below to lie in their reliance on the ethnographic account of the Oraon community by the scholar Sarat Chandra Roy, whose description of the ghardamad custom, though invoked to uphold Punai's status, in fact undermined it.
"If there be no male issue or adopted son, but only a ghardamad duly adopted into the house as a prospective 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 to such ghardamad."
Holding that this passage contemplated adoption of a ghardamad only by the last male owner or his widow, the Court observed that it was not borne out from the record that Bhoula, who was Budhain's father, had played any role in Punai's induction, or that Bhoula's widow had explicitly adopted him. The consistent position on record was that it was Ledura, the uncle-in-law, who had taken Punai as his ghardamad, and the Court held that it was nowhere established, on the evidence or on the authorities relied upon, that an uncle-in-law could adopt his niece's husband as a ghardamad within the customary law applicable to the parties. The Court further noted that since only Ledura held a share in the property, no valid partition could have taken place between Ledura and Budhain, rendering the 1975 deed irrelevant to the question of title regardless of whether it was described as a lease or a partition.
Faulting the High Court for having framed a substantial question of law on the uncle-in-law's capacity to adopt a ghardamad but declining to answer it merely because the finding below was concurrent, the Court held that once a substantial question is admitted under Section 100 of the Code of Civil Procedure, 1908, it must be answered, and that the High Court's observation that no bar against such adoption had been clearly established could not substitute for a decision on merits, since the burden lay on the party asserting the custom to prove it. Holding that the customary claim, apart from a ghardamad's eligibility to inherit from his father-in-law, had not been proved, and that in the absence of a validly adopted ghardamad or other male heir, the nearest male agnate would be entitled to succeed, the Court set aside the judgments of the courts below, decreed the plaintiff's suit, and allowed the appeal, directing that costs be borne by the parties themselves.
Case Title: Bejla Oraon vs. Kali Das Oraon & Ors (Arising out of SLP (C.) No. 23458 of 2024)
