Custom Seeking Departure From General Law Must Be Proved As Ancient, Continuous And Compulsory: Jharkhand High Court

The Court dismissed an appeal seeking to exclude daughters, widows and their descendants from inheritance under an asserted Munda customary rule.

The Court was hearing a first appeal against the decision of the Land Acquisition, Rehabilitation and Resettlement Authority dismissing the appellants’ claim to the entire compensation for acquired ancestral land and allocating shares to descendants claiming through female branches of the family.

A Single Bench of Justice Anubha Rawat Choudhary observed: “Otherwise also it is well settled that the party who alleges existence of a custom which is at variance with the general law, has to specifically plead and prove such custom and it has to be proved that such custom is ancient, uniform, certain, continuous and compulsory and is also not opposed to public policy.”

The Court added: “The Hon'ble Supreme Court has held that custom, at variance with general law, should be strictly proved and the burden of proving such custom is heavy on the person who relies upon such custom. It has also been held that generally there is a presumption that the law prevails and whosoever claims custom against such law, has to discharge the onus of proving it with all requisites to the satisfaction of the court in the most clear and unambiguous manner.”

Advocate Rahul Gupta appeared for the appellants. Advocate Pradeep Kumar Deomani appeared for the private respondent, while Assistant Counsel to Standing Counsel (Land and Ceiling)-II Pankaj Kumar Choudhary appeared for the State.

Background

Land belonging to the parties’ common ancestor was acquired under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The award was prepared in the names of the common ancestor’s three sons.

A dispute arose over the allocation of compensation to descendants claiming through the female branches of two of the recorded landholders. The appellants objected to these allocations and sought the entire compensation as the nearest male agnates.

The appellants asserted that both sides belonged to the Munda Scheduled Tribe and were governed by Munda customary law in matters of succession. According to the custom claimed by them, a widow and unmarried daughters of a man dying without a male heir were entitled only to maintenance from the property until death, remarriage or marriage, while the property itself devolved upon the nearest male agnates.

The private respondent claimed that the family had become sufficiently Hinduised and was governed by the Hindu Succession Act, 1956. She relied upon the family’s observance of Hindu festivals and practices to claim a share in the acquired property.

The Land Acquisition Authority rejected the appellants’ claim and allocated compensation to the descendants claiming through female branches. It relied upon Ram Charan v. Sukhram (2025), in which the Supreme Court applied the principles of justice, equity and good conscience where neither a law governing the community nor an exclusionary custom could be established.

Court’s Observations

The Court observed that a custom at variance with the general law cannot be established merely by asserting that a community follows a particular practice. The person invoking it must plead its essential ingredients and establish them through clear and unambiguous evidence.

The Court referred to Subramani v. Chandralekha (2005), where the Supreme Court held that a custom contrary to the general law must be specifically pleaded and established by the person propounding it.

The Court also relied on Ratanlal alias Babulal Chunilal Samsuka v. Sundarabai Govardhandas Samsuka (2017), which identified continuity, certainty, long usage and reasonableness as essential ingredients of a valid custom. It noted that the precedent placed a heavy burden upon the person seeking to displace the presumption that the general law prevails.

Referring to Laxmibai v. Bhagwanthbuva (2013), the Court observed that a legally enforceable custom must be ancient, uniform, certain, continuous and compulsory. It added that a custom could not be proved through analogy, logical deduction or conflicting evidence.

The Court further referred to Baga Tirkey v. Pinki Linda (2021), which relied upon Yamanaji H. Jadhav v. Nirmala (2002), Salekh Chand v. Satya Gupta (2008), Rathnamma v. Sujathamma (2019) and Dr. Surajmani Stella Kujur v. Durga Charan Hansdah (2001) to reiterate that a custom operating in derogation of the general law must be strictly construed and proved.

The Court referred to Madhu Kishwar v. State of Bihar (1996), where the Supreme Court observed that customary rules differ between tribes and regions. It noted that the validity, certainty, antiquity and consistency of a claimed rule of succession must consequently be examined on the evidence presented in each case.

The Court also relied upon Bejla Oraon v. Kali Das Oraon (2026), which held that the person asserting a custom must prove both the custom and that the parties are governed by it. The precedent further required proof of long and binding usage through evidence from members of the tribe or family, supported where available by public records.

The Court observed that genuine customary law must reflect plural, uniform and constant acts accepted by the community as having the force of law. It distinguished such a binding custom from a practice that was merely common or optional.

The Court observed that the appellants’ witnesses had stated that widows and daughters did not inherit under the customary law claimed by them. However, the appellants did not cite any instance in which a widow or daughter had actually been denied inheritance under that alleged custom.

The Court noted that no documentary or oral evidence was produced to demonstrate that the exclusionary practice had been followed with the required antiquity, uniformity, certainty, continuity and compulsion.

The Court held: “This court is of the considered view that the appellants have not been able to prove the alleged custom of complete exclusion of daughters and widows from inheritance and succession and that they are only entitled to maintenance as per alleged customary law governing the parties.”

The Court added that the legal requirements for proving the asserted custom had not been satisfied. It consequently declined to treat the witnesses’ general statements as proof of a binding customary rule excluding women from succession.

The Court also noted that widows and daughters from the appellants’ own branch had joined in claiming title and compensation. The appellants did not object to shares allocated to women belonging to their own branch but sought to exclude a daughter belonging to another branch of the same family.

The Court examined the private respondent’s contention that the family had become sufficiently Hinduised and was consequently governed by the Hindu Succession Act.

The Court referred to Budhu Majhi v. Dukhan Majhi (1956), Labishwar Manjhi v. Pran Manjhi (2000), Lakshmi Narayan Tudu v. Basi Majhian (2004) and Ram Nath Munda v. Khaintu Munda (2004). It observed that these decisions recognised that members of a Scheduled Tribe could be governed by Hindu succession law where the evidence established that they had become sufficiently Hinduised and followed Hindu traditions.

The Court noted that witnesses had referred to Hindu names and the observance of festivals and religious practices associated with Hinduism. However, the evidence also showed the continued observance of Sarna religion and burial practices associated with the Munda community.

After considering the evidence from both sides, the Court held: “However, the opposite parties have not been able to prove that the parties are sufficiently hinduised so as to be governed by Hindu Succession Act.”

The Court therefore found that neither side had established the legal foundation advanced by it. The appellants failed to prove a binding custom excluding women, while the private respondent failed to establish that the parties were governed by the Hindu Succession Act.

The Court observed that the Land Acquisition Authority had summarised the evidence but had not expressly decided whether the exclusionary custom had been proved or whether the parties had become sufficiently Hinduised.

The Court stated: “The learned court has also not recorded any finding as to whether the initial onus to prove the custom as asserted has been discharged by the appellants.”

After independently evaluating the evidence, the Court concluded that neither the alleged customary rule nor the applicability of the Hindu Succession Act had been established. The Court observed: “There is a complete void as to under what provision of law the compensation has to be allotted to the parties.”

The Court consequently applied Ram Charan v. Sukhram (2025). It observed that the Supreme Court had applied justice, equity and good conscience, read with Article 14 of the Constitution, where neither female succession nor its exclusion had been proved as a binding custom.

The Court held that the Land Acquisition Authority had correctly recognised the entitlement of descendants claiming through the female branches. It upheld the allocation of one-half of the compensation to the private respondent. It further held that the one-fourth share allocated to the other female-line descendant, who had died during the proceedings, could be disbursed to his legal heirs and successors as claimed in accordance with law.

Conclusion

The Jharkhand High Court held that the appellants had failed to prove a binding Munda custom completely excluding daughters and widows from inheritance. It also found that the private respondent had not established that the parties were sufficiently Hinduised to attract the Hindu Succession Act.

Applying the principles of justice, equity and good conscience, the Court upheld the allocation of compensation to the descendants claiming through the female branches and dismissed the appeal. It directed the preparation of a decree and closure of the pending interlocutory application.

Cause Title: Budhan Devi and Others v. Daho Devi and Another (Neutral Citation: 2026:JHHC:29793)

Appearances

Appellants: Advocates Rahul Gupta and Shubham Kumar

Respondents: Advocates Pradeep Kumar Deomani and Nilesh Kumar Gupta; Assistant Counsel to Standing Counsel (Land and Ceiling)-II Pankaj Kumar Choudhary

Click here to read/download Judgment