Himachal Pradesh High Court Dismisses Children’s Suit For Share In Father’s Property, Holds Surviving Brother In Polyandrous Co-Marriage Inherits Under Customary Law

The Court was hearing a second appeal arising from a civil suit in which the plaintiffs claimed rights in the share of their father and challenged a family arrangement, contending that the property was governed by traditional Hindu/Mitakshara law.

A Bench of Justice Rakesh Kainthla, while holding that the plaintiffs had proceeded on an incorrect legal premise, observed:

“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.”

The Bench further stated:

“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 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.”

Senior Advocate Ajay Kumar appeared for the appellants, while Advocates Mohinder Verma and Sumit Sharma appeared for the contesting respondents.

Background

The dispute concerned land which the plaintiffs claimed as joint Hindu family property. Their case was that their father was the son of one of two brothers who had been in a joint marriage with the same woman, and that after their father’s death, they were entitled to the share of that branch.

The defendants opposed the claim on the ground that the parties were governed by the custom of the area. They pleaded that the woman was in a joint marriage with two brothers, and that on the death of one brother, mutation of inheritance had rightly been sanctioned in favour of the surviving brother, who was the other husband in the co-marriage.

The Trial Court dismissed the suit. The First Appellate Court upheld that dismissal. In second appeal, one of the substantial questions before the High Court was the rule of succession applicable to children in a polyandrous marriage.

Court’s Observations

The Court first noted that the relevant death took place before the Hindu Succession Act came into force. Therefore, the succession issue had to be examined with reference to the law applicable at that time.

The Court observed: “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 Court referred to material on polyandry in the Shimla hills and noted that local custom displaced ordinary Mitakshara rules where the two were inconsistent.

The Court relied on the following passage: “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. 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.”

The Court also noted the customary logic of treating the polyandrous family as a single unit:

“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.”

The Court held that the customary rule was not a general rule of succession among all brothers, but one arising from the polyandrous co-marriage arrangement where brothers had a common wife.

The Court noted: “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.”

Applying this, the Court held that the surviving brother who was part of the same joint marriage inherited the property after the death of the other brother.

The Court relied on Pratap Singh v. Guman Singh (2010), where the High Court had considered the Joridari system and held that ordinary Mitakshara coparcenary principles did not govern such customary family arrangements.

The Court quoted: “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.”

The Court therefore held that the plaintiffs could not rely on traditional Hindu/Mitakshara law to claim a present share.

The Court found that the mutation in favour of the surviving brother was consistent with the custom pleaded and proved in the case.

The Court observed: “In the present case, it is undisputed that Naro Devi was a common wife of Madan Singh and Devi Saran. The 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.”

The Court noted that both sides’ pleadings referred to the mutation being attested in favour of the surviving brother because of the joint marriage and the custom of the area.

Conclusion

The Court held that the plaintiffs could not claim any right in the property during the lifetime of the surviving brother in the polyandrous co-marriage. It found that the suit, filed on the premise of Mitakshara law and present inheritance through the father, had no basis.

The second appeal was dismissed.

Cause Title: Shamsher Singh & Ors. v. Chain Ram & Ors. (Neutral Citation: 2026:HHC:30606)

Appearances

Appellants: Senior Advocate Ajay Kumar with Advocate Vinay Thakur

Respondents: Advocates Mohinder Verma and Sumit Sharma

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