1. This is an Appeal by the Plaintiff in a suit fordeclaration of title to immoveable property and for recovery of possessionthereof. The parties are descended from a common ancestor Satrughna Mahto whowas governed by the Mitakshara School of Hindu Law and died in 1846. He hadthree sons, Chandi, Nageshwari and Radha Nath, of whom the second Nageshwarisucceeded to the estate upon the death of his father. Nageshwari died about theyear 1864 and left two sons Ram Charan and Sridhar. Ram Charan died in 1904. Hehad four sons, Krishna who predeceased him in 1896, Narayan, Guru Charan whodied in 1906 and Durga Charan who is the present Plaintiff. The first twoDefendants are the sons of Krishna and the next three Defendants are the sons ofNarayan. The Court of first instance overruled the contention of the Plaintiffthat the parties were subject to the Dayabhaga School of Hindu Law but found inhis favour that he was entitled to an one-third share in the family estate.This in fact negatived the defence that the family was governed by the rule ofprimogeniture. Upon appeal, the Judicial Commissioner has reversed the decisionof the Court of (sic) any share in the family properties. The substantialquestion in controversy between the parties, consequently, is whether thisfamily is or is not governed by the rule of primogeniture. On behalf theRespondents, it has been contended that the question is essentially one of factand consequently not liable to be examined in Second Appeal. This propositionis in our opinion too broadly formulated. Whether certain events did or did nothappen is no doubt a question of fact upon which the decision of the lowerAppellate Court is binding upon us : but whether the facts so found do or donot establish the alleged custom is plainly a question of law to be determinedby this Court. Besides, as will presently be seen, the judgment of the JudicialCommissioner is based upon evidence not admissible in law, and must, on thatground alone, be deemed unsustainable.

2. When we examine the written statement of the Defendantswe fined that the alleged custom is set out in the following terms : "Itis the custom observed from a long time past in the families of the Plaintiff,the Defendants and other Kurmis of Pergunnah Silli and other Pergunnahs of theprovinces of Chotanagpur, that the eldest son becomes proprietor of the entirevillage and the remaining sons get something for their maintenance according tothe family capacity." This statement it will be observed, does not clearlyspecify whether the custom alleged is a family custom, or a local custom, or aclass custom. Apparently the case for the defence is that the alleged customfalls within all the three categories.

3. (sic) so far as a family custom is alleged JudicialCommittee in the case of Ramalakshmi Ammal v. Sivanantha Perumal 14 M. I. A.570 ; 17 W. R. 552 (sic), that if a party rely upon the special custom of afamily, to take the succession out of the ordinary Hindu law such custom mustbe proved to be ancient and continuous. The rule is formulated in substantiallythe same terms in Hurrpursad v. Sheodyal L. R. 3 I. A. 259 at p. 285 (1876),namely, that custom is a rule which, in a particular family or a particulardistrict, has from long usage obtained the force of law : it must be ancient,certain and reasonable and being in derogation of the general rule of land,must be construed strictly. To similar effect is the statement of Chief JusticeTuidal in Tyson v. Smith 9 Ad. and El. 406 (421) : 48 (sic). "It is anacknowledged principle that to give validity to a custom which has been welldescribed to be an usage, which obtains the force of law and is in truth thebinding law within the particular district or at a particular place, of thepersons and thing which it concerns, it must be certain, reasonable in itself,commencing from time immemorial and continued without interruption : [see alsoVayidinada v. Appu]. Consequently the Defendants must establish that thealleged custom, if it is a family custom, has been continuous. Now in so faras, upon the death of Nageshwari, the property was taken by Ram Charan to theexclusion of his younger brother Satrughna, the circumstance is undoubtedly infavour of the Defendants. But this solitary instance is not by itselfsufficient to establish the alleged custom. Sarabjit v. Indarjit. It is worthyof note that in the case of Chandika v. Muna I. L. R. 24 All. 273 ; L. R. 29 I.A. 70 (1902), their Lordships of the Judicial Committee declined to find infavour of an alleged custom upon evidence which consisted of four moderninstances. As pointed out in the case of Gopal v. Hanumunt I. L. R. 3 Bom. 273(1879), the alleged custom must be very satisfactorily proved by evidence ofparticular instances, instances so numerous as to justify the Court in findingin favour of the custom. Here, as we have already said, only one instanceconsistent with the alleged custom has been established. On the other hand, wemeet with instances in which the custom would have been recognised, if it didreally exist, but the course of succession was contrary to the alleged custom.It is significant that the Defendants allege that Nageshwari was the eldest sonof Satrughna and succeeded as such to his estate ; the Courts have foundconcurrently against their allegation. They now turn round and contend thatNageshwari succeeded because his eldest brother relinquished his claim in hisfavour, this was not only not their case in the Court of first instance but iscontradictory to the case sought to be then established. The cases ofChuttardharee v. Tilakdharee and Jeetnath v. Lokenath to which reference wasmade in the course of argument are clearly of no assistance to the Respondents.Consequently the alleged custom, if it is a family custom, has not beenestablished. The question next arises whether the alleged custom, if it bedeemed a local or a class custom, has been proved upon the facts found by theCourts below. The Judicial Commissioner has relied principally upon a judgmentof an Assistant Settlement Officer delivered in the course of proceedings underChap. XII of the Chotanagpur Tenancy Act. It has been pointed out that thepresent suit was instituted on the 18th September 1909 whilst the judgmentmentioned was delivered by the Assistant Settlement Officer at the attestationstage on the 5th January 1910, and that the record-of-rights in accordancetherewith was finally published so late as the 6th March 1911. The factnaturally affects the value and importance of the decision of the settlementauthorities. But, apart from this circumstance it is clear that the judgment ofthe Settlement Officer has been used for a purpose for which it is notadmissible under the law. Reliance might possibly have been placed upon thejudgment to show that the custom was recognised by the revenue authorities. Butthe findings of the Settlement Officer cannot be incorporated into the evidencein this case and treated as practically conclusive between the parties. It isfurther worthy of note that the Settlement Officer relied upon informationgathered by him from the tehsildar of the Silli estate. Whether the SettlementOfficer was competent to act upon information so obtained, which was clearlynot legal evidence, may be a question for consideration, but it is plain thatthe Judicial Commissioner was in error when he based his decision on thisstatement of the tehsildar, who had not been examined as a witness in thislitigation : It cannot be disputed, therefore that the judgment of the JudicialCommissioner is based upon material not admissible in law. But even if thematerial is used, how far does it carry the case of the Defendants Thestatement of the tehsildar is to the effect that the custom of primogenitureexists in 82 out of 84 villages comprised in the Silli estate under which theparties to the present litigation hold their tenancies. The alleged custom,treated as a local custom, is not prevalent is all the villages, and ifadmittedly it does not prevail in two of the villages, an inference cannot verywell be drawn that it does prevail in the village in question. The conclusionis irresistible that the materials upon which the Judicial Commissioner hasbased his decree do not justify the inference he has drawn from them. Theresult is that this Appeal is allowed, the decree of the lower Appellate Courtset aside and that of the Court of first instance restored with coststhroughout .

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Durga Charan Mahto vs. Raghunath Mahto and Ors. (07.04.1913- CALHC)