IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 20 of 1998 Reserved on: 05.11.2009 Date of decision : 08.01.2010. Pratap Singh …Appellant. Versus Guman Singh and another …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. ------------------------------------------------------------------------------------------ For the Appellant: Mr. Karan Singh Kanwar, Advocate. For the respondent: Mr. Rajnish K. Lal, vice Mr. K.D.Sood, Advocate. Deepak Gupta, J. This case raises interesting questions regarding the laws of inheritance in respect of parties governed by custom where a mixed system of polyandry and polygamy was being followed. The parties belong to area of Tehsil Shillai, District Sirmour. According to them at the relevant time a custom known as “Joridari” was in existence. This custom was a mixture of both polygamy and polyandry. Under this Joridari system the eldest brother amongst the brothers was the pivot and the woman who was brought into the house in a marriage ceremony became the wife of all the brothers who joined him or associated with him. It was not necessary for all the brothers to join the Joridari but when two or more brothers join together in this common marriage the wife 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 became the common wife of these brothers. If over a period of time the brothers wanted to marry another woman and bring her into the family she also became the joint wife of all the brothers. Therefore, if there were more than one wife, all the wives were the common wives of the brothers. According to Dr. Y.S.Parmar, (former Chief Minister of Himachal Pradesh) in his treatise “Polyandry in the Himalayas” where the system of Joridari was followed the local customs governed the field and the ordinary Mitakshara School of Law did not govern inheritance or succession between the parties. When a number of brothers joined together to have one or more wives the offspring of the common wife or wives were treated as the sons or daughters of the family. The property was inherited only by the eldest brother. On his death the property was not inherited by the children but by the next eldest brother. It was only after all the brothers expired that the eldest male child would inherit the property. There were economic reasons behind these customs. The holdings in the hills were small. Therefore, to prevent fragmentation of holdings this custom was followed. The result of this custom was that even the sons would normally remain joint and get a joint wife leaving no inducement for separation or partition of the property. In a family where practice of polygamy was being followed all the male issues inherited their father’s property. The property on the death of the father passed on to them. The sons of any particular wife did not get any preference. The property was divided per-capita and not per stripes. In the 3 case of a family where polyandry was being followed it was the brother who inherited the property as long as the partition was not made. However the Rules of Succession in respect of the system of Joridari where the Joridari breaks-up are not very clear. When the Joridari would break-up if the number of wives were equal to the number of brothers then each brother would take one wife but where the number of wives were less then the wives would be divided within groups of brothers. Under the system where polyandry or system of Joridari was followed normally the children were treated to be the children of eldest brother. Coming to the facts of the present case, the factual situation which now stands proved on record is that S/Sh. Roop Singh, Bhoop Singh, Shabla, Nandharu and Dhanna were five real brothers. Roop Singh and Bhoop Singh constituted one Joridari and they had one common wife and the other three brothers, namely, Shabla, Nandharu and Dhanna constituted a second Joridari. Out of the Joridari of Roop Singh and Bhoop Singh two sons Kali Ram and Mani Ram were born. Dharam Singh and Gulab Singh were the sons of Kali Ram and Mani Ram had one son Hira Singh. Dharam Singh and Gulab Singh constituted one Joridari. They had a common wife. Initially, the elder brother i.e. Dharam Singh was married to one Jamani who was divorced since she gave birth to an issue outside the wedlock. Thereafter, Dharam Singh married defendant No.3 (Durga Devi), who was the common wife of both Dharam Singh and Gulab Singh. There was no surviving child out of this wedlock for a long time and therefore Dharam Singh again contracted a marriage with Mithani. She was also 4 treated as the wife of both the brothers and therefore, the Joridari now consisted of two brothers Dharam Singh and Gulab Singh and two wives Durga Devi and Mithani. Mithani, the younger wife, conceived first and the plaintiff Pratap Singh was born on 25th July, 1946. Durga Devi conceived soon thereafter and gave birth to defendant No.1 Guman Singh in December, 1946. However, it must be noted that Durga Devi was the elder wife. After the birth of two children by mutual consent and with the approval of the elder family members a partition took place between the two brothers who constituted the Joridari. The Joridari came to an end. Durga Devi the elder wife was assigned to Dharam Singh, the elder brother. Mithani was assigned to Gulab Singh, the younger brother. According to the defendants, as per the custom and choice of the mother, plaintiff Pratap Singh accompanied his mother Mithani to the house of Gulab Singh and defendant No.1 Guman Singh, who was the younger brother went with his mother Durga Devi to the house of Dharam Singh. After the separation, one daughter Smt. Bhano (defendant No.2) was born to Durga Devi out of the loins of Dharam Singh. Mithani Devi also gave birth to other children, who are not parties to the proceedings. According to the plaintiff, in the Joridari system a modified Mitakshara Rule of Inheritance was prevalent, under which the brother inherited the property on the death of the elder brother and nothing would go to the children till all the brothers, also known as Joridari fathers, were alive. It is submitted that the system of coparcenary continued to exist and therefore by birth each male child had a right in the property. The plaintiff claims that 5 though he went with his mother to the house of Gulab Singh he continues to be the son of Dharam Singh and is, therefore, entitled to a share in the property both being a member of coparcenary and also as the son of Dharam Singh. Dharam Singh executed a Will in favour of defendant No.1 and this Will is challenged on the ground that Dharam Singh was not entitled to make such a Will. It is further alleged that there was also a custom prevalent amongst these people that property could not be bequeathed through a written or verbal Will. The plaintiff claims that he had a vested right of 1/3rd share in the property of Dharam Singh as a member of coparcenary joint hindu family and he is also entitled to inherit 1/12th share in the property being ¼ share of his father Dharam Singh in the property. According to the plaintiff, the Will executed on 18th February, 1978 disinheriting him is totally illegal and invalid since his father was not the sole owner of the property and but held the same in trust for the entire coparcenary and secondly on the ground that as per custom such a Will could not be executed. On the other hand, according to the defendants, the concept of coparcenary did not exist in the Joridari system where brother inherited from brother. The respondents admit that they were governed by the custom of Joridari . However, according to the respondents all the brothers of the Joridari are fathers of all the children but in the record the eldest brother or Mukhia (head of the family) would be recorded as the father because name of all the fathers could not be jointly recorded in the official record. According to the respondents, on the break-up of the Joridari the 6 issues born during such Joridari remain the issues of all the brothers. However, according to the defendants, once partition takes place the person to whose share a property fell had a right to will-away the same. According to the respondents, since the plaintiff alongwith his mother Mithani went to the house of Gulab Singh he is entitled to his share of the property from the share of Gulab Singh alone and has no right in the property of Dharam Singh. According to the defendants when the Joridari came to an end the property of this Joridari was divided between Dharam Singh and Gulab Singh, who started living separately with their wives and children. Thereafter, a partition took place wherein the plaintiff alongwith other issues of Gulab Singh and Gulab Singh got some property and the remaining property went to Dharam Singh and defendant No.1. It was further alleged that in the year 1968 the entire property held by the members of the family i.e. the heirs of S/Sh. Roop Singh and Bhoop Singh on one side and Shabla, Nandharu and Dhanna on the other side was partitioned. The plaintiff and defendant No.1 were both aged about 22 years at the time of this partition. In this partition equal share were given to Gulab Singh and Dharam Singh. Shares were allotted to other co- sharers also. The defendants urge that the plaintiff was a major at that time and if the property was to be divided amongst all co- sharers he should have raised his voice at that stage and he cannot be permitted to raise this issue 16 years later in the year 1984. The suit was also contested on the ground that the plaintiff by means of this suit wants to get a share in the property of both Dharam Singh as well as in the property of Gulab Singh and 7 therefore, Gulab Singh, his wife Mithani and other children of Gulab Singh are necessary party to the proceedings. The learned trial Court came to the conclusion that in view of Joridari custom no system of coparcenary existed and the plaintiff had no right in the property by birth. The trial Court went on to hold that when the Joridari between Dharam Singh and Gulab Singh came to an end and the property was divided between them at the time of the partition in the year 1968 the plaintiff also got a share in the property and therefore could not claim a share at this belated stage. It also held that since the plaintiff went with his mother to the house of Gulab Singh he only had a right in the property of Gulab Singh. The learned lower Appellate Court upheld the findings of the trial Court. Hence, this second appeal, which was admitted on the following substantial questions of law:- “1. Whether the concept of co-parcener, co-parcenary property, ancestral property is available and shall apply to Male issues born from ‘Joridara’ system of marriage prevalent in Trans-Giri area of District Sirmaur, H.P. when the property comes to the ‘Joridaras’ from their male ancestors? 2. How the property which came to ‘Joridaras’ from their ancestors would devolve on the Male issues born in ‘Joridara’ system of marriage after termination of ‘Joridara’ marriage of ‘Joridaras’? 3. Plaintiff who was born to Smt. Mithani in ‘Joridara’ system of marriage of Dharam Singh and Gulab Singh with Smt. Mithani is son of Dharam Singh or Gulab Singh and he will succeed to whom after termination 8 of ‘Joridara’ marriage of Dharam Singh and Gulab Singh? 4. Whether plaintiff had any share alongwith defendant No.1 and Dharam Singh in the share which came to the unit of Dharam Singh at the time of separation of Dharam Singh and Gulab Singh in the year 1968? 5. Whether Dharam Singh in view of Riwaj-A-Am applicable to Dharam Singh and the parties to the suit could bequeath his property by way of Will? 6. Whether plaintiff is entitled to inherit 1/4th share from the share of Dharam Singh? 7. Whether suit is time-barred? 8. Whether suit is collusive with Gulab Singh? 9. Whether suit is bad for want of necessary parties? 10. Whether learned District Judge has misconstrued, misinterpreted the pleadings and material on record and the view taken by him is not possible on the basis of material on record?” As far as the first question is concerned, I am of the considered view that the concept of coparcenership did not at all exist in the Joridari system where a mixed system of polygamy and polyandry was followed. Reference may be made to the origin of the system of Joridari from the book “Polyandry in the Himalayas” wherein at page 152 the learned author Dr. Y.S. Parmar, observed as follows:- “In this region, due to economic and sociological reasons, a man cannot always afford to maintain a separate wife for himself and so two or more husbands keep a joint 9 wife and the children born of such union are the property of all the husbands and they all call them fathers. The children live with them and rarely separate even when grown up. Thus the husband or husbands, wife or wives and the children constitute a unit of the community. If a family consisting of four husbands, a wife, and two children feels at any time the necessity of another helping hand, the husbands may marry another woman and the additional wife would be submerged in the family and become a part of it without in any way disturbing its solidarity.” It would be relevant to refer to the study of kinship terms and uses as observed by the learned author at page 158, relevant portion of which reads as follows:- “A study of kinship terms and usages may also be of help to use in considering the matter of inheritance and succession. We have seen the polygyny and polyandry are both practiced side by side in these hills. The existence of these practices at the same time moulds the laws of inheritance in a peculiar but interesting manner. Ordinarily the Courts of law follow the Benares School of Mitakshara law as far as inheritance and succession are concerned but the local customs hold their own and in case of any difference the local custom is a decisive factor. Succession does not, as it does in other parts of India, offer any great intricacies here. The simple life of the inhabitants has developed a system of succession suitable to their local needs. None of the complexities and subtleties of the Hindu succession are present and few 10 persons have to approach the Courts in this connection. The problems of partitition and inheritance of the joint family property are scarecely present. The reason for their absence is the simple fact that the family is for all practical purposes one solid unit and is hardly ever divisible especially as far as a polyandrous family is concerned. A number of brothers marry one joint wife. The offsprings by the common wife are the sons or daughters of the family. In a polyandrous family, on the death of a brother his sons do not inherit his property if his other brothers are living. A brother succeeds a brother and only when all the brothers are dead do their children inherit the property. Since the sons in a polyandrous family are considered to be the offspring of all the fathers they cannot become fatherless till all the brothers are dead. The sons have in turn to remain joint and to get a joint wife not only for social reasons but also for economic necessity. These factors do not afford the members of the family any opportunity or inducement for a division of the property or for separation. Even in families which practice polygyny succession does not produce any complications. All the male issues of the wives are heirs to their father’s property. The property on the death of the father at once passes on to the male issues. It is divided equally among them. The sons of any particular wife do not get any extra share. If, however, a man dies without any male issue, property is equally divided amongst his wives who have only a life interest in the property. The widows do not 11 have the authority to dispose of the immovable property by will, gift or sale. On their death it will pass on to the nearest collaterals.” I have been ably assisted by both Shri Karan Singh Kanwar, learned counsel for the appellant and Shri Rajnish K.Lal, learned counsel for the respondents. Despite their sincere endeavour and efforts no direct custom or usage directly on the point could be traced in respect of the peculiar questions which arise in this case. It is obvious that when brother inherits from brother and when the sons have not even a right to inherit the property till the earlier generation is alive the concept of coparcenership cannot be introduced. The system of Joridari is totally alien to the concept of coparcenership. True it may be that the eldest brother or eldest member of the Joridari held the property in trust for all the members of the Joridari but this did not mean that any coparcenary existed. Dr. Parmar, has clearly stated that the Mitakshara School of law was not applicable. The Joridari system is unique. This system does not even remotely find mention in any of the Hindu Schools of law. One must remember that it was not necessary that all brothers should constitute one Joridari. As is apparent from the facts of this case itself out of five brothers two brothers constituted one Joridari and three brothers constituted a separate Joridari. Their offspring were different. The offspring of one Joridari system definitely cannot claim any right in the property of the other Joridari. Therefore, this also negates the very concept of coparcenarship which gives a male child right of inheritance in the ancestral property even when he is in the womb. Therefore, 12 the first question is answered by holding that the concept of coparcenership did not apply to the Joridari system. The second question, however, finds no answer either in the book of Dr. Parmar or in the other material produced before me. Questions No. 3 and 4 are connected with question No. 2 and are being answered together. In the Joridari system only maternity is certain but paternity is uncertain. Nobody can say with certainty as to which offspring is the child of which father. It is, however, certain as to which mother has given birth to which child. Though this custom may have been prevalent in the remotest areas where education was totally lacking, the manner in which the partition between the members of Joridari was done clearly shows a great deal of sensitivity and maturity. When partition between Dharam Singh and Gulab Singh took place, even though Durga Devi mother of defendant No.1 had conceived later, she being the elder wife was allotted to the elder brother. The younger wife was allotted to the younger brother. The children were very small and of tender age when this partition took place. The elders while bringing about the partition decided that each child would go with his natural mother. Thereafter each son went with his actual mother to one of the joint fathers and continued to live with their mothers alongwith the father i.e. Durga Devi alongwith defendant No.1 lived with Dharam Singh and Mithani alongwith the plaintiff lived with Gulab singh. According to the plaintiff in the official records he was recorded as son of Dharam Singh and therefore, he is entitled to inherit the property of Dharam Singh. At this stage it cannot be 13 ascertained as to whether the plaintiff is actually the son of Dharam Singh or of Gulab Singh. In fact, it would not be socially or morally right to do so keeping in view the whole concept of Joridari system. Be that as it may, the fact remains that right from their childhood the two children lived with their natural mothers. Other children were also born out of these wedlocks. On the break-up of the Joridari, in my considered view the child who went with his mother would inherit the property only from the father with whom his mother lived and continued to be in wedlock. In case, this system is not followed, it would lead to total chaos. Paternity being not certain both the plaintiff and defendant No.1 can claim a share in the properties of each other’s families. This would not only affect their rights inter se but the rights of other family members since other children were born in the two separate units in the family after the break up of the Joridari. The right of respondent No.2 would be affected in as much as her share would come down once the children who were born before the Joridari came to an end could claim property in both units. The children born after the break-up of the Joridari would be entitled to claim property only in one unit. This would not be fair under any circumstances. In view of the above discussion, I am of the considered view that questions No. 2 to 4 have to be answered in the following terms:- When a Joridari breaks up and partition takes place the male issues born in the Joridari system before the partition would be entitled to a share in the property of only that unit to which his or their mother is allotted. Consequently, the plaintiff would have 14 no share in the property which fell to share of Dharam Singh but would be entitled to a share in the property of Gulab Singh with whom his mother Mithani lived. This now brings us two questions 5 and 6, which can be decided together. According to the plaintiff, he is the son of Dharam Singh and therefore, entitled to 1/4th share in the property of Dharam Singh. The plaintiff has relied upon a number of documents wherein the name of Dharam Singh is recorded as his father. Even after the Joridari broke-up this could have happened in view of the consistent practice followed in the area that normally all the children born during the Joridari were shown as the children of the eldest brother or the head of the family but this does not help us in deciding the question as to whether he in fact was the son of Dharam Singh or not. It is not disputed that the Joridari between Gulab Singh and Dharam Singh came to an end in the year 1948. However, family partition took place in the year 1968. Plaintiff in his statement as PW-1 has admitted that during this family partition he was also allotted a share in the family property and was satisfied with the same. He also admits that he separated from his father after the allotment of his shares. The plaintiff was 22 years old and a major at that time. If he had any dispute regarding his share in the property whether as a coparcener or as son of Dharam Singh he should have raised the dispute at that time. He cannot be permitted to raise such a dispute at this belated stage. 15 The next question which arises is whether Dharam Singh could have executed a Will in the year 1978. The main challenge to the Will is on the ground that as per the custom existing in the area such Will could not have been executed. However, this contention does not take into consideration the aspect that in the meantime