The Supreme Court has held that a person claiming rights under a customary practice must establish the existence and scope of that custom through cogent evidence. Setting aside concurrent findings of the trial court, first appellate court and the Jharkhand High Court, the apex court decreed the plaintiff’s suit and restored property rights in favour of the nearest male agnate after finding that the alleged custom permitting an uncle-in-law to adopt a ghardamad (resident son-in-law) had not been proved.
The bench of Justices Sanjay Karol and Nongmeikapam Kotiswar Singh has observed that the party asserting a custom bears the burden of proving both the existence of the custom and that the parties are governed by it. A valid custom must be ancient, certain, reasonable and continuously observed. Long usage must be established through reliable evidence. Testimony of persons familiar with the custom and historical records may be relied upon. Once judicially recognised, a custom need not be repeatedly proved in subsequent cases. A custom contrary to public policy or otherwise legally invalid cannot be enforced.
Buy Now: Supreme court Judgements E-Compilation – JUNE 2026
The litigation concerned ancestral property belonging to an Oraon family. The plaintiff claimed entitlement to the entire property after the death of his uncles, arguing that under the prevailing customary law of the community, daughters did not inherit ancestral property and, in the absence of direct male heirs, the nearest male agnate became entitled to succession.
The defendants, however, contended that one of the deceased family members had taken his niece’s husband as a ghardamad, thereby enabling him to inherit the property. They also relied upon a deed executed between family members to support their claim.
The trial court dismissed the plaintiff’s suit after accepting the defendants’ contention that the ghardamad relationship had been validly created. The first appellate court affirmed the decision, and the Jharkhand High Court also refused to interfere, primarily on the ground that the lower courts had recorded concurrent findings of fact.
The Supreme Court was therefore called upon to determine whether those findings suffered from legal infirmities warranting interference under Article 136 of the Constitution.
Before examining the evidence, the Court undertook an extensive survey of settled principles relating to customary law.
The Court also referred to Section 48 of the Evidence Act, which permits courts to consider the opinions of persons likely to possess special knowledge regarding the existence of a custom.
Analysing the oral evidence in detail, the Supreme Court found substantial inconsistencies in the defendants’ case.
The evidence consistently established that daughters ordinarily did not acquire inheritance rights under the customary law governing the parties. At the same time, although the existence of the ghardamad institution was generally accepted, there was no satisfactory evidence demonstrating that an uncle-in-law possessed the customary authority to adopt his niece’s husband as a ghardamad capable of succeeding to his property.
The Bench observed that the defendants had failed to discharge the burden of proving this specific custom, which was central to their claim.
The Supreme Court also examined the document relied upon by the defendants, noting that it had variously been described as a lease deed and a partition deed.
The Court held that neither description advanced the defendants’ case. A lease does not confer ownership, while a partition can only take place among persons already possessing a legal share in the property. Since the alleged beneficiary had no established share, the document could not create title in her favour. Consequently, the question whether the deed had been executed openly or secretly became legally irrelevant.
The Bench also criticised the trial court’s reliance on the writings of noted scholar Sarat Chandra Roy regarding Oraon customs.
According to the Supreme Court, the material relied upon actually recognised inheritance rights of a ghardamad only in specific circumstances and contemplated adoption by the landowner or, in certain situations, by the widow. The record, however, did not establish that the deceased landowner had validly adopted the alleged ghardamad in accordance with the recognised custom.
Instead, the evidence merely suggested that an uncle-in-law had purportedly adopted his niece’s husband—a practice whose existence had never been proved.
The Supreme Court further observed that although the High Court had framed a substantial question of law concerning the uncle-in-law’s authority to adopt a ghardamad, it ultimately declined to answer the issue merely because the findings of the lower courts were concurrent.
The Bench held that once a substantial question of law is framed, the High Court is required to examine and answer it on merits. Simply relying on concurrent findings without deciding the legal issue amounted to an improper exercise of jurisdiction under Section 100 of the Code of Civil Procedure.
Allowing the appeal, the Supreme Court concluded that, apart from the recognised custom permitting a ghardamad to inherit from his own father-in-law in appropriate circumstances, none of the broader customs asserted by the defendants had been established through acceptable evidence.
The Court therefore set aside the judgments of the trial court, first appellate court and the Jharkhand High Court, decreed the plaintiff’s suit, and held that the nearest male agnate was entitled to succeed to the disputed property in accordance with the applicable customary law. The parties were directed to bear their own costs.
Membership Required to Access Case Details & Order Copy
To view the complete Case Details and Download Order Copy, you must have an active membership. Please subscribe to continue.
