Shamsher Singh & Ors vs Chain Ram & Ors. Rt on 24 July, 2026

    0
    14
    ADVERTISEMENT

    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

    SPONSORED

    District Judge, Shimla Camp at Rohru (learned Appellate Court)

    1
    Whether reporters of Local Papers may be allowed to see the judgment? Yes.

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    2

    2026:HHC:30606

    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:

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    3

    2026:HHC:30606

    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 Devi

    of
    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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    4
    2026:HHC:30606

    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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    5
    2026:HHC:30606

    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 family

    partition 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.

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    6

    2026:HHC:30606

    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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    7
    2026:HHC:30606

    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.

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    8

    2026:HHC:30606

    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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    9
    2026:HHC:30606

    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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    10
    2026:HHC:30606

    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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    11
    2026:HHC:30606

    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;

    (v) Uppala Sambasiva Rao Vs. Uppala Kanakamma & ors.

    AIR 1960 AP 213;

    (vi) Abnashi Singh and ors. Vs. Smt. Lajwant Kaur & anr.

    AIR 1977 P&H 1;

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    12

    2026:HHC:30606

    (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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    13
    2026:HHC:30606

    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 former

    of
    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. But

    generally 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 applied

    throughout 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.

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    14

    2026:HHC:30606

    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, but

    there 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 they

    become 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 are

    not brothers, the fraternal tie is not lost sight of and
    strangers can have a joint wife only when they have

    adopted 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 is

    supposed 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.

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    15

    2026:HHC:30606

    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 of

    all 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 his

    of
    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 imposed

    penalty on partitions. No better proof could be afforded of
    the influence of this factor. That was also most probably

    the 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
    seem to imply the assumptions that the youngest brother

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    16
    2026:HHC:30606

    is 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, in

    of
    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, the

    ancestral 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 themselves

    with 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, the

    majority of brothers would be against it and would try all
    they could to avoid it. Thus, while in an ordinary joint

    Hindu 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 that

    in 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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    17
    2026:HHC:30606

    A 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 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.

    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 ever

    divisible, especially as far as a polyandrous family is
    concerned. (Emphasis supplied)
    A number of brothers marry one joint wife. 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 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…..(Emphasis supplied)

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    18
    2026:HHC:30606

    In 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 be

    given 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 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 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
    on to them. The sons of any particular wife did not get

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    19
    2026:HHC:30606

    any 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 wives

    were 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 of

    of
    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 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 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.”

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    20

    2026:HHC:30606

    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 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

    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.
    rt
    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
    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 ever

    divisible, especially as far as a polyandrous family
    is concerned. A number of brothers marry one joint

    wife. 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
    to get a joint wife not only for social reasons but

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    21
    2026:HHC:30606

    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
    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 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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    22
    2026:HHC:30606

    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, 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…”

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    23

    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 joint

    marriage. 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

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS
    24
    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)

    ::: Downloaded on – 24/07/2026 20:41:28 :::CIS



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here