Case: Shiromani &amp; Ors Vs. Hem Kumar &amp; Ors

of the exceptions was in favour of the eldest son, who was originally entitled to a special share on partition, either a tenth or a twentieth in excess of the others, or some special chattel, or an extra portion of the flocks (Apastamba, II, 6, 14, 10-13; Baudh., II, 2, 2-5; Gaut., XXVIII, 11, 12; Vas., XVII, 42-45; Manu IX, 112, 114, 156). But unequal partition of ancestral or joint property was from early times condemned. The Smritichandrika, the Vyavahara Mayukha and the Viramitrodaya declare that unequal partition is forbidden in the Kali age (Smritichandrika, III, 16, V. May, IV, iv, 11, Viramit., III, 16 (Setlurs ed., 319) The Commentary of Mitakshara on Yajnavalkya, II, 117 is briefly as follows:"Unequal division though found in the sastras (e. g., Manu IX, 105, 112, 116, 117, Yaj. II, 114) should not be practiced because it has come to be condemned (or has become hateful to) by the people, since there is the prohibition (in Yaj. 1. 156) that an action, though prescribed in the sastras, should not be performed when it has come to be condemned by the people, since such an action does not lead to the attainment of Heaven. For example, though Yaj. I, 109 prescribes the offering of a big ox or a goat to a learned brahmana guest it is not now practiced because people have come to hate it, or just as, although there is a Vedic text laying down the sacrificing of a cow one should sacrifice a barren cow called anubandhya for Mitra and Varuna still it is not done because people condemn it And it has been said just as the practice of niyoga or the killing of the anubandhya cow is not now in vogue, so also division after giving a special share (to the eldest son) does not now exist."As between brothers or other relations, absolute equality is now the invariable rule in all the States, unless perhaps, where some special family custom to the contrary is made out (For example, see the decision of the Madras High Court in Nachiappa Chettiar v. Muthu Karuppan Chettiar, AIR 1946 Mad 398 ).7. On behalf of the respondents, however, reliance was placed upon the special custom of "Jethansi" said to be prevalent in the caste of Agharias to which the parties belong. Reference was made to the evidence of D.W. 4, Baratram, D. W. 5, Sitaram, D. W. 6, Yalobra and D. W. 7, Khewlal to show that there was such a custom in the caste whereby the eldest son was given a greater share in the property of the father. Mr. Sarjoo Prasad took us through the evidence of these witnesses but we are not satisfied on their evidence that the custom pleaded for has been established. It is well established that a custom must be proved to he ancient, certain and reasonable if it is to be recognised and acted upon by Courts of law; and being in derogation of the general rules of law the custom must be construed strictly: See Hur Purshad v. Sheo Dyal, (1876-77) 3 Ind App 259 at p. 295 (PC). In the present case, the evidence adduced on behalf of the respondents to prove the alleged custom is unsatisfactory and conflicting. D. W. 4, Baratram stated that the custom of "Jethansi" was prevalent in Agharias community but he admitted when cross-examined, that he was not present at any partition. He further said that there was "no fixed custom about Jethansi and the eldest brother could be given more or less". D. W. 5, Sitaram said that "I got 16 acres of Jethansi land in a partition between my own brother". The total area of land was 100 acres. He admitted that there was no written document about the custom. D. W. 6, Yalobra said that his brother Sita Ram got Jethansi land of 16 acres out of a total area of 100 acres. When cross-examined, he said that no more than Dashanshi was given "and the people who divided did not tell any account of it". The evidence of Khewlal, D. W. 7 is that there was partition among his brothers and the eldest brother Din Dayal was given 5-6 acres of land as Jethansi. The total area of the land to be divided was 100 acres. No documentary evidence of partition has been adduced on behalf of the respondents and the oral evidence is vague and uncertain.We are accordingly of the opinion that the custom of Jethansi alleged on behalf of the respondents has not been established by proper evidence and the finding of the High Court is vitated because it is not supported by proper evidence. We accordingly reject the argument of the respondents that Hemkumar was entitled to a larger share of the joint family properties on the basis of the alleged custom of Jethansi in his caste.8. On behalf of the respondents reference was made to the evidence of D. W. 1 Dinamoni and D. W. 2 Dindayal that there was an actual partition of joint family properties not on December 27, 1943 when Ex. D-4 was executed but about two months later and specific allotments were made to each of the coparceners. There is, however, no pleading in the written statement on behalf of the respondents that apart from the document, Ex. D-4 there was a partition of the joint family properties. We are satisfied in this case, upon examination of the evidence that the intention of the parties was that document Ex. D-4 should he the sole evidence of partition and since we have held that Ex. D-4 is not admissible in evidence on account of non-registration to establish when the property was so partitioned, it is manifest that no oral evidence is admissible to prove any subsequent partition having regard to the provisions of Section 91 of the Evidence Act. It is clear therefore that the appellants are entitled to a preliminary decree for partition of joint family properties.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our opinion, the argument put forward on behalf of the appellants is well founded and must be accepted as correct. It was contended on behalf of the respondents that the document was not necessary to be registered because there was only severance of joint status of the members of the coparcenery and there was no partition of the properties by metes and bounds.We proceed to consider the next question arising in this appeal namely, whether Mst. Subhagwati was entitled to a share in the joint family properties equal to that of a son and whether properties equal to that of a son and whether the alleged partition effected by Ex. D-4 was invalid because no such share was allotted to her. It is not disputed on behalf of the respondents that according to the Mitashara Law of the Benares School a wife is entitled, on partition between her sons, to a share equal to that of a son. But the contention put forward on behalf of the respondents is that by signing the document, Ex. D-4 Mst, Subhagwati acquiesced in the division of the properties between her sons without claiming any share for herself and it must counsequently be taken that Mst. Subhagwati relinquished her share. It was pointed out that Ex. D-4 was executed on December 27, 1943 and for a period of 11 years Mst. Subhagwati did not take any action to impeach that document. We are unable to accept the argument put forward on behalf of the respondents as correct. There is no issue in the trial court regarding the alleged acquiescence of Mst. Subhagwati nor was it pleaded on behalf of the respondents that there was an agreement by which Mst. Subhagwati gave up her share in favour of the other coparceners. On the contrary, it is alleged in Para 9 of the written statement that Subhagwati was not entitled to any be effected by Ex. D-4 was not prejudicial to the interest of plaintiff No. 1. To put it differently, there is not pleading on the part of respondents of acquiescence by Mst. Subhagwati and there is no issue on the question of acquiescence. We are accordingly unable to accept the argument of the respondents that there was acquiescence on the part of Mst. Subhagwati or that she relinquished her share in favour of the other coparceners and the finding of the High Court on this point is erroneous.On behalf of the respondents, however, reliance was placed upon the special custom of "Jethansi" said to be prevalent in the caste of Agharias to which the parties belong. Reference was made to the evidence of D.W. 4, Baratram, D. W. 5, Sitaram, D. W. 6, Yalobra and D. W. 7, Khewlal to show that there was such a custom in the caste whereby the eldest son was given a greater share in the property of the father. Mr. Sarjoo Prasad took us through the evidence of these witnesses but we are not satisfied on their evidence that the custom pleaded for has been established. It is well established that a custom must be proved to he ancient, certain and reasonable if it is to be recognised and acted upon by Courts of law; and being in derogation of the general rules of law the custom must be construedare accordingly of the opinion that the custom of Jethansi alleged on behalf of the respondents has not been established by proper evidence and the finding of the High Court is vitated because it is not supported by proper evidence. We accordingly reject the argument of the respondents that Hemkumar was entitled to a larger share of the joint family properties on the basis of the alleged custom of Jethansi in his caste.8. On behalf of the respondents reference was made to the evidence of D. W. 1 Dinamoni and D. W. 2 Dindayal that there was an actual partition of joint family properties not on December 27, 1943 when Ex. D-4 was executed but about two months later and specific allotments were made to each of the coparceners. There is, however, no pleading in the written statement on behalf of the respondents that apart from the document, Ex. D-4 there was a partition of the joint family properties. We are satisfied in this case, upon examination of the evidence that the intention of the parties was that document Ex. D-4 should he the sole evidence of partition and since we have held that Ex. D-4 is not admissible in evidence on account of non-registration to establish when the property was so partitioned, it is manifest that no oral evidence is admissible to prove any subsequent partition having regard to the provisions of Section 91 of the Evidence Act. It is clear therefore that the appellants are entitled to a preliminary decree for partition of joint family properties.