Himachal Pradesh High Court
Shamsher Singh & Ors vs Chain Ram & Ors. Rt on 24 July, 2026
2026:HHC:30606
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 66 of 2008
.
Reserved on: 18.07.2026
Date of Decision: 24.07.2026
Shamsher Singh & Ors. ...Appellants
of
Versus
Chain Ram & Ors. rt ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellants : Mr Ajay Kumar, Senior Counsel
with Mr Vinay Thakur, Advocate.
For respondents No.1, 2 and : M/s Mohinder Verma & Sumit
6 Sharma, Advocates.
None for respondents No. 3, 4(a) to 4(d).
Name of respondents No. 5 and 7 stands deleted.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 17.08.2007 passed by the learned Additional
District Judge, Shimla Camp at Rohru (learned Appellate Court)
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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vide which the judgment and decree dated 09.03.1992 passed by
the learned Sub Judge-II Rohru, District Shimla, H.P. were
.
upheld. (The parties shall hereinafter be referred to in the same
manner as they were arrayed before the learned Trial Court for
convenience).
of
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiffs filed a civil suit before the learned
rt
Trial Court for seeking a relief of declaration that they are
entitled to Madan Singh’s share exclusively and 1/5 th share from
the property of defendant no. 1, and the family arrangement is
null and void. A consequential relief of permanent prohibitory
injunction for restraining the defendant from interfering with
the possession of the plaintiffs or alienating their share was also
sought. It was pleaded that the suit land mentioned in the head
note and para 1 of the plaint is the joint Hindu property of the
plaintiff and defendants No.1 to 3. Bragi was the common
ancestor of the parties. The relationship between the parties is
as follows:
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Devi Saran (Husband) Naro Devi (Wife) Now Naro Devi also
married (Madan Singh)
Madan Singh (Husband)Born before marriage
to Madan Singh.
Murti Lal (Died) (Born after five months
after the death of Madan Singh
Murtu Devi Bindra Devi Kali Ram
(Daughter) (Daughter) (Son)Born after the death of
Madan Singh to Devi Saran and Naro Devi) Megh Nath Sheela Deviof
Chain Ram Begampatti Bilasu Devi
(Son) (Daughter) (Daughter)
3. Smt. Naro Devi was the common wife of Devi Saran,
rt
defendant no. 1, and Madan Singh. Kali Ram, the father of the
plaintiffs, was born to them. Madan Singh executed an
izadinama in favour of defendant no. 1 regarding his property,
and both of them became joint owners. Madan Singh died,
leaving Kali Ram as the only heir. However, the mutation of
inheritance was sanctioned in the name of Devi Saran, defendant
no. 1. The plaintiffs are the sons of Kali Ram and are entitled to
the whole share of Madan Singh through Kali Ram. Defendant
nos. 2 & 3 were born to defendant no. 1 after the death of Madan
Singh. The plaintiffs are entitled to an equal share with
defendant no. 1. The plaintiffs were minors at the time of their
father’s death. Defendant no. 1, taking advantage of the minority
of the plaintiffs, manipulated a family arrangement by giving
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them some fields much less than their share. They approached
defendant nos. 1 & 2 to provide their share, but in vain. Hence,
.
the suit was filed for seeking the reliefs mentioned above.
4. The suit was opposed by filing a written statement
taking preliminary objections regarding the lack of
of
maintainability, the suit being bad for non-joinder of a
necessary party, the suit having not been properly valued for
rt
court fees and jurisdiction, the plaintiffs being estopped from
filing the suit by their act, conduct, deed, etc., and the suit being
barred by limitation. It was asserted that the partition had taken
place 18 years before filing the present suit. The plaintiffs’
mother represented them and herself in the partition. She put
the thumb impression on the partition list after being satisfied
with the partition. The plaintiffs and their mother started
residing separately after the partition. It was specifically denied
that the suit land is ancestral joint Hindu family property of the
parties. It was asserted that Naro Devi was married exclusively
to Devi Saran, and that Madan Singh was made the joint
husband of Naro Devi by defendant no. 1 with him. Kali Ram,
Murtu Devi, Bindra Devi, and Murti Lal, defendant No. 2, were
also born to Madan Singh and Naro Devi. The suit land was
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partitioned with the consent of the parties, and the present suit
is not maintainable. The mutation of inheritance was sanctioned
.
in favour of defendant no. 1 as per the custom. Therefore, it was
prayed that the present suit be dismissed.
5. A replication denying the contents of the written
of
statement and affirming those of the plaint was filed.
6. The following issues were framed by the learned
rt
Trial Court on 06.08.1988, and one additional issue was framed
on 9.10.1990:
1. Whether the suit is bad for non-joinder of necessary
parties as alleged? OPD.
2. Whether the suit is properly valued for the purpose of
Court fee and jurisdiction? OPP.
3. Whether the plaintiffs are estopped from instituting the
suit by their acts, conduct and deeds as alleged? OPD.
4. Whether the plaintiffs and their mother are living
separately from the defendants by virtue of familypartition between them and the suit in the present form is
not maintainable as alleged? OPD.
5. Whether the suit is barred by limitation as alleged in
preliminary objection. No. 6 of the written statement?
OPD.
6. Whether the suit is bad for non-compliance of Section 80
CPC as alleged? OPD.
7. Whether the suit property is joint Hindu Family property
of the parties as alleged? OPP.
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8. Whether the family arrangements between the mother of
the plaintiff and deceased defendant Devi Saran are
illegal, void and inoperative as alleged? OPP.
.
9. If issue No. 7 is proved in the affirmative, to what extent
the plaintiffs are entitled to the share in the joint
property? OPP.
10. Whether the plaintiffs are entitled to permanent
injunction as prayed for? OPP.
11. Whether the plaintiff is entitled to inherit the estate of
of
deceased Madan Singh in its entirety and 1/5 th share of
deceased Devi Saran as alleged? OPP.
12. Relief.
7.
rt
The parties were called upon to produce the evidence
and the plaintiff examined Gulab Singh, plaintiff No.2 (PW1),
Hazaar Mani (PW2), and Lakshman Singh (PW3). The
defendants examined Chain Ram, defendant No. 3 (DW1), Kunji
Ram (DW2), Sarjan Dass (DW3) and Murtu Devi (DW4).
8. The learned Trial Court held that it was undisputed
that Devi Saran and Madan Singh had executed an izadinama in
favour of each other and reported this fact to the Revenue
Officer. They became the joint owners after the execution of the
izadinama. They had a common wife, Naro Devi. A partition had
taken place between the parties in which Hazar Mani, the
plaintiffs’ mother, had represented them. The plea taken by the
plaintiffs that the partition was fraudulent was not sufficient to
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invalidate it. The plaintiffs had not filed the suit within the
limitation. The suit was bad qua Naib Tehsildar for non-
.
compliance of notice under Section 80 of CPC, but it was valid
qua the private defendants. A joint property devolves by means
of survivorship, and the suit land was rightly inherited by Devi
Saran after Madan Singh’s death. Hence, the learned Trial Court
of
answered issue Nos. 2 to 5 in the affirmative, the rest of the
issues in negative and dismissed the suit filed by the plaintiffs.
rt
9. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the plaintiffs filed an appeal which
was decided by the learned Additional District Judge, Shimla,
H.P. The learned Additional District Judge held that the learned
Trial Court had not framed proper issues and the following
issues were also required to be framed:
1. Whether at the time of death of Sh. Madan Singh only Kali
Ram was born to Smt. Naro, as alleged? OPP.
2. Whether at the time of death of deceased Sh. Madan
Singh, the two daughters namely Murtu and Bindra, were
also born to Smt. Naro and the son Murti Lal was in her
womb as alleged? OPD.
3. Whether the parties in the matter of inheritance of the
property, only death of either of the partner- husband of
a common wife are governed by any custom, if so, to what
effect? OPD.
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10. The findings were recorded on some facts, and the
matter was remitted to the learned Trial Court for a fresh
.
decision.
11. Being aggrieved by the judgment passed by the
learned Additional District Judge, the defendant no. 1 filed an
of
appeal before this Court, which was registered as FAO No. 20 of
1998. This Court held that the learned Additional District Judge
rt
should not have remanded the matter to the learned Trial Court,
but should have sought the finding on the freshly framed issues.
The findings were also not required to be given on the facts.
Hence, the matter was again remitted to the learned Appellate
Court.
12. Learned Trial Court recorded the statement of Gulab
Singh and held that Naro Devi was the common wife of Devi
Saran and Madan Singh. Murti Lal was in the womb of Naro Devi
at the time of the death of Madan Singh. Two daughters, Murtu
Devi and Bindra Devi, were also born to Naro Devi. The mutation
of inheritance of the common property is attested in the name of
the surviving husband in case of joint marriage. The parties are
governed by the Hindu Law and not by custom. Hence, the
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learned Trial Court answered issue no. 2 in the affirmative and
the rest of the issues in the negative.
.
13. Learned Appellate Court held that Kali Ram was born
to Naro Devi from her joint husband Madan Singh and Devi
Saran. He died in the year 1992 (Vikrami), which corresponds to
of
1935 of the English calendar. The mutation of inheritance of the
common property is attested in favour of the surviving husband,
rt
and Devi Saran had rightly succeeded to the estate of Madan
Singh. Kali Ram had not challenged the mutation during his
lifetime. The plaintiffs had not challenged the partition with
limitation. Therefore, the appeal was dismissed.
14. Being aggrieved by the judgments and decrees passed
by the learned Courts below, the plaintiffs have filed the present
appeal which was admitted on the following substantial
questions of law on 14.09.2009:
1. Whether the findings of the Ld. First Appellate Court and
the Ld. Trial Court are a result of complete misreading of
pleadings, evidence and the law as applicable to the facts
of the case and particularly document Ext.PW3/A, Ext.
DW1/A and Ext. DW2/A and as such palpably erroneous
and illegal and if so to what effect?
2. Whether in the facts and circumstances of the case and in
the face of the pleadings of the parties and the evidence
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led by the parties, were the appellants not entitled to
1/5th share in the suit property?
3. What is the custom or rule of succession in case of
.
children of polyandrous marriage?
4. Whether a one-sided, unfair and unconscionable
partition forged on the minors through their illiterate and
rustic mother is binding on the minors?
5. Whether the First Appellate Court failed to formulate
proper points for determination, which has affected its
of
judgment and resulted in miscarriage of justice to
appellants.
6. Whether both the Courts below have grossly
misinterpreted and mis-appreciated the evidence and the
rt
law as applicable to the facts of the case and if so to what
effect?
15. I have heard Mr Ajay Kumar, learned Senior Counsel
assisted by Mr Vinay Kumar, learned counsel for the appellants
and M/s Mohinder Verma and Sumit Sharma, learned counsel
for respondents No.1, 2 and 6/defendants.
16. Mr Ajay Kumar, learned Senior Counsel for the
appellants submitted that learned Courts below failed to
appreciate that the plaintiffs’ mother could not have
represented them during the partition, and unilateral partition
effected by defendant No. 1 will not bind the plaintiffs. The
partition could have been reopened by the minors on attaining
the majority. Learned Courts below erred in holding that the suit
was barred by limitation. Therefore, he prayed that the present
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appeal be allowed and the judgments and decrees passed by the
learned Courts below be set aside.
.
17. Mr Mohinder Verma, learned counsel for respondent
nos. 1, 2 and 6, submitted that the learned Courts below had
rightly held that the suit was barred by limitation. The plaintiffs
of
were required to file a suit within 3 years of attaining the
majority to get rid of the partition. However, they failed to do so.
rt
The learned Appellate Court had rightly held that the property
was rightly inherited by defendant no. 1 and the plaintiffs had no
right over it. The parties had acted upon the partition and the
partition had attained finality. Therefore, he prayed that the
present appeal be dismissed. He relied upon the following
judgments in support of his submission: –
(i) Chhotelal Babulal & anr. Vs. Premlal Girdharilal and
other AIR 1977 Madhya Pradesh 34;
(ii) Rangammal Vs. Kuppuswami & anr. (2011) 12 SCC 220;
(iii) C. Doddanarayana Reddy (dead) through LRs Vs. C.
Jayarama Reddy (dead) through LRs (2020) 4 SCC 659;
(iv) T. Ramalingeswara Rao (dead) through LRs Vs. N.
Madhava Rao & ors. (2019) 4 SCC 608;
AIR 1960 AP 213;
(vi) Abnashi Singh and ors. Vs. Smt. Lajwant Kaur & anr.
AIR 1977 P&H 1;
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(vii) S. Subramanian Vs. S. Ramasamy & ors. (2019) 6 SCC
46;
(viii) Anathula Sudhakar Vs. P. Buchi Reddy (dead) through
.
LRs (2008) 4 SCC 594;
(ix) Balwant Vithal Kadam Vs. Sunil Baburaoi Kadam
(2018) 2 SCC 82;
(x) Karunanidhi Vs. Seetharama Naidu & ors. (2017) 5 SCC
483;
18. I have given considerable thought to the submissions
of
made at the bar and have gone through the records carefully.
Substantial Question of Law No. 3:
rt
19. It is undisputed that Madan Singh had died in the
year 1992 Vikrami Samvat, which corresponds to the year 1935
of the English calendar. The learned Appellate Court had rightly
held that the provisions of the Hindu Succession Act had not
come into force at that time. The learned Appellate Court held
that either the case would be governed by customary law or by
traditional Hindu law and dealt with both the possibilities. The
learned Trial Court, while recording the findings on the
additional issues, held that the matter would be governed by
traditional Hindu law.
20. Punjab State Gazetteers Volume VIII Shimla Hill States
Civil and Military Gazetteer Press Lahore 1910 describes polyandry
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in Shimla Hills. It mentions at page 15 that polyandry prevails in
the greater part of Kanawar and in some places in Rohru Tehsil
.
and describes the polyandry and its various features as under:
Polyandry prevails in the greater part of Kanawar and in
some places in Rohru Tehsil. There are two forms: (1) the
higher, where the joint husbands are brothers, and (2) the
lower, where they are not brothers. As a rule, the formerof
alone is found in Bashahr, but there are instances of the
second. Occasionally two men, perhaps of different
castes, and certainly not relations, will become dharm
bhais, and share a wife, but in such cases the offspring is
rt
not admitted into the brotherhood of his father. Cousins
sometimes have a joint wife. Half-brothers often do. Butgenerally speaking, the practice is for the joint wife to be
shared by uterine brothers up to the number of six. If
there are more than six brothers, they get two wives.
21. It further deals with the division of property amongst
the polyandric group following the rule of jathong and
kalchlonwg as under:
Division of property among a polyandric group follows
the rule of jathong and kalchlonwg, which is appliedthroughout the hills to inheritance and partition. Jathong
means the right of the elder and kanchhonwg the right of
the youngest. Before the partition takes place, a good field
is given to the eldest brother and the ancestral house to
the younger. The rest of the property is then divided in
equal shares. The custom is probably attributable to an
idea that the youngest son is too young to find a new
home for himself, and that the eldest son is entitled to
some recognition of his seniority.
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22. A book titled Polyandry in Himalayas, written by Dr YS
Parmar, Vikas Publications 1975, deals with polyandry. It
.
discusses the prevalence of polyandry in the greater part of
Kanawar and some places in Rohru of Bashahr at page 81 as
under:
of
We find polyandry prevailing in the greater part of
Kanawar and in some places in Rohru of Bashahr. In
Bashahr it is found existing in both forms, higher and
lower (fraternal and non-fraternal). In the higher form
rt
the joint husbands are brothers, and in the lower they are
not so. Usually, the former only is found in Bashahr, butthere are scattered instances of the latter too. What
happens in the latter type is that at times strangers of
even different castes become dharam bhais (brothers not
by blood but by performing a ceremony by which theybecome like brothers) and share a wife, but in such cases
the offspring is not admitted into the brotherhood of his
father. It should be noted that, though the husbands arenot brothers, the fraternal tie is not lost sight of and
strangers can have a joint wife only when they haveadopted the fraternal spirit. A dharam bhai is for all
practical purposes considered as a brother except in the
matter of inheritance. Thus the lower form, which issupposed to allow strangers to share a wife in common, is
brought within the framework of the higher form and the
fraternal idea is clearly discernible in it. Cousins and half-
brothers sometimes have a joint wife. The fraternal tie is
thus the basis of the practice allowing them to share a
joint wife, for as members of one caste, tribe or family,
they, as possible heirs, represent the fraternal group. As a
matter of general practice, however, a joint wife is shared
by uterine brothers up to the number of six. If, however,
there are more than six brothers, they get two wives.
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Quite a number of women have two husbands, and some
have three or four or even five.
xxxxxxx
.
At times one of the several brothers sharing a common
wife brings a separate wife for himself. If the new wife
agrees to be shared by all the brothers, no difficulty
arises. If, however, she refuses to be the common wife ofall the brothers, the joint property has to be partitioned.
She and her husband have to separate and start a new
establishment. Her husband does not, however, lose hisof
right in the joint property, but as a general rule she severs
her connection with him. The partition of property is
made in accordance with customary rules of inheritance
rt
which will be described later.
23. It deals with the partition and the succession of the
property at page 143 and 158 as under:
How far the desire to keep an estate undivided after the
death of an owner was responsible for it can be best
judged from the case of Bashahr state where the
administration actively encouraged it and imposedpenalty on partitions. No better proof could be afforded of
the influence of this factor. That was also most probablythe reason why the Jathong and Kanchong systems of
inheritance prevailed in these polyandrous tracts.
Surprising as it may appear, the customs bore the same
names in Bashahr, Sirmur, and other polyandrous parts
of the hills. “Jathong” from “jetha” or elder means the
right of the elder, and “kanchong” from “kancha” or
youngest means the right of the youngest brother. Since
partitions were to be discouraged, a check was placed by
society on them by enforcing the rights of the eldest and
youngest brothers. If a partition has to take place, a good
field has to be given to the eldest brother according to
jathong and the ancestral house has to be given to the
youngest brother according to kanchong. The customs
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2026:HHC:30606is too young to find a new home for himself and the eldest
is entitled to some recognition of his seniority. But while
these assumptions may be far, what is more likely is that,.
in addition to these, or probably as the origin of these,
was the desire to levy some conditions which, though not
obnoxious to the members of the family, might work as a
suitable check on the desire to have partitions effected.
After keeping apart a good field for the eldest and the
ancestral house for the youngest, the rest of the property
had to be divided equally among all the brothers. Thus, inof
a family of six brothers, in case of partition, the eldest
would get one good extra field and the youngest the
ancestral house and the rest of the property would be
equally divided among them all. While the eldest and the
rt
youngest are gainers, the other four brothers are the
losers. They lose one good field and, what is more, theancestral house. They must make one or more houses for
themselves and spend their time, energy, and money on
them, while they gain nothing by partition. It would
therefore be to their interest not to burden themselveswith this extra expenditure but to get what benefits they
could from the family property as such. While, therefore,
the eldest and the youngest may desire a partition, themajority of brothers would be against it and would try all
they could to avoid it. Thus, while in an ordinary jointHindu family all the brothers get equal shares in the
family property, the polyandrous people of the hills laid
these two conditions on the members of a family so thatin case of partition the interests of the majority of
brothers are generally against partition. Thus, in an
indirect but effective manner, the desire to transmit an
estate undivided was secured though apparently jathong
and kanchong only safeguarded the interests of the eldest
and the youngest brothers. Apart from these
considerations, the question of the allotment of the wife
would prove a serious problem.
xxxxx
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2026:HHC:30606A study of kinship terms and usages may also be of help to
us in considering the matter of inheritance and
succession. We have seen that polygyny and polyandry.
are both practised 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 ofMitakshara 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.
of
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
rt
subtleties of the Hindu succession is present, and few
persons have to approach the courts in this connection.
The problems of partition and inheritance of the joint
family property are scarcely present. The reason for their
absence is the simple fact that the family is for all
practical purposes one solid unit and is hardly everdivisible, especially as far as a polyandrous family is
concerned. (Emphasis supplied)
A number of brothers marry one joint wife. The offspringby 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 thebrothers 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
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2026:HHC:30606In the case of a polyandrous family, all the sons succeed
the father but remain joint. If one of the brothers dies, his
sons and widow do not succeed him, but he is succeeded by.
his younger brother or brothers. Only when all the brothers
are dead do their sons inherit the property. All the sons
now have a joint interest and ownership and, if they want
to separate, the eldest and youngest brothers have to begiven separate extra shares in accordance with the rule of
jathong and kanchong. (Emphasis supplied)
24. This book was cited with approval by this Court while
of
dealing with the custom of polyandry in Pratap Singh v. Guman
Singh, 2010 SCC OnLine HP 114. It was observed:
rt
According to Dr Y.S. Parmar (former Chief Minister ofHimachal 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 orsuccession 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 thesons or daughters of the family. The property was
inherited only by the eldest brother. On his death, theproperty was not inherited by the children but by the next
eldest brother. It was only after all the brothers expiredthat 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 the practice of polygamy was being
followed, all the male issues inherited their father’s
property. The property on the death of the father passed
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2026:HHC:30606any preference. The property was divided per capita and
not per stirpes. In the 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 wiveswere equal to the number of brothers, then each brother
would take one wife, but where the number of wives was
less, then the wives would be divided within groups ofof
brothers. Under the system where polyandry or the
system of Joridari was followed, normally the children
were treated as the children of the eldest brother.
xxxxx
rt
As far as the first question is concerned, I am of the
considered view that the concept of coparcenership didnot 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 ofJoridari 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 aseparate wife for himself, and so two or more
husbands keep a joint wife and the children born of
such union are the property of all the husbands andthey 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.”
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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 in considering the matter of inheritance and
succession. We have seen that polygyny and
polyandry are both practised side by side in thesehills. The existence of these practices at the same
time moulds the laws of inheritance in a peculiar
but interesting manner. Ordinarily, the Courts ofof
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.
rt
Succession does not, as it does in other parts of
India, offer any great intricacies here. The simplelife of the inhabitants has developed a system of
succession suitable to their local needs. None of the
complexities and subtleties of the Hindu succession
is present, and few persons have to approach theCourts in this connection. The problems of
partition and inheritance of the joint family
property are scarcely present. The reason for theirabsence is the simple fact that the family is for all
practical purposes one solid unit and is hardly everdivisible, especially as far as a polyandrous family
is concerned. A number of brothers marry one jointwife. The offspring 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
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2026:HHC:30606also 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 thedeath of the father at once passes on to the male
issue. It is divided equally among them. The sons of
any particular wife do not get any extra share. If,of
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 have the authority to dispose of the
rt
immovable property by will, gift or sale. On their
death, it will pass on to the nearest collaterals.”
25. It was further held that a brother inherits from the
brother, the sons have no right to inherit the property till the
earlier generation is alive and the concept of coparcenarship
cannot be followed. It was observed:
“It is obvious that when a brother inherits from a brother
and when the sons have not even a right to inherit the
property till the earlier generation is alive, the concept ofcoparcenership 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
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2026:HHC:30606constituted 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, the first question is answered by holding that
the concept of coparcenership did not apply to the
Joridari system.
of
26. In the present case, it is undisputed that Naro Devi
was a common wife of Madan Singh and Devi Saran. The
rt
property was jointly owned by both of them. Hence, the principle
of traditional Hindu law of coparcenarship will not apply to the
present case. The property would be inherited by Devi Saran
after the death of Madan Singh as per the customary law noticed
above. This was also recognised by the revenue authorities who
attested the mutation in favour of defendant no. 1 Devi Saran on
the death of Madan Singh.
27. The plaintiffs also asserted this fact in para 5 of their
plaint as under:
“That after executing the mutation of ijadinama Madan
Singh died leaving behind the only son deceased Kali
Ram, the father of the plaintiffs but due to the joint
marriage the mutation of inheritance of the deceased
Madan Singh was attested in the name of defendant no. 1
Devi Saran…”
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2026:HHC:30606
28. The defendants had also set up this custom in para 5
of their written statement as under:
.
” It is admitted that on the death of Madan Singh, the
mutation of inheritance of the estate of Madan Singh was
attested in the name of defendant No.1 on account of jointmarriage. This was done in accordance with the custom of
the area…”
29. Learned Appellate Court had noticed the pleadings of
of
the parties and concluded that the inheritance was to be
governed by way of a custom. The mutation was rightly attested
rt
in favour of Devi Saran, and the plaintiffs cannot make any
grievance regarding the attestation of mutation in favour of
defendant no. 1. This was as per the customs noticed above.
30. Therefore, the Rule of succession in case of
polyandrous marriages is that the property is inherited by the
surviving brother(s) and not by the children. Hence, this
substantial question of law is answered accordingly.
Substantial Question of Law Nos. 1, 2, 4, 5 & 6:
31. The plaintiffs filed a civil suit on the premise that the
matter is governed by traditional Hindu/Mitakshara Law.
However, this is not correct. The matter is governed by
Customary Law under which the surviving brother inherits the
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2026:HHC:30606
property. Therefore, the plaintiffs cannot claim any right in the
property of their father till the death of all the brothers of the
.
co-marriage. Hence, the suit filed by the plaintiffs during the
lifetime of Devi Saran, brother of Madan Singh, claiming that
they had a right in the suit land and the partition adversely
affected them, was without any basis. Therefore, all these
of
substantial questions of law do not arise in the present case.
Final Order:
rt
32. In view of the above, the present appeal fails and is
dismissed.
33. The appeal stands disposed of, so also the pending
application(s), if any.
34. Records of the learned Courts below be returned
forthwith.
(Rakesh Kainthla)
Judge
24th July, 2026
(Nikita)
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