NEELA Vs. SAROJA

JUDGEMENT

(1.) THIS Second Appeal under Section 100 of Code of Civil Procedure involves two short but interesting questions of law. The first is as to whether the customary practice prevalent in a community can prevail over the statutory provisions, particularly a customary practice of aliya santana can prevail over the provisions of section 8 of the Hindu Succession Act, 1956 (for short, the Act), and secondly as to whether the parties by their conduct start a custom afresh, though such custom was not prevalent earlier but sought to be followed by the act of parties?

(2.) THIS second appeal is by the plaintiff in OS No. 101 of 1992, on the file of Court of Munsiff at Karwar, praying for plaintiffs 1/6th share in the suit schedule properties and for division by metes and bounds, which suit was rightly decreed by the trial Court came to be reversed in the RA No. 7 of 1997, on the file of Court of Principal Civil Judge (Sr. Dn.), Karwar, wherein the learned Judge of the lower appellate Court has reversed the judgment and decree of the trial Court and has dismissed the suit. Therefore this second appeal.

(3.) PLAINTIFF claiming to be a daughter of one Bhanu Naik sued for her share in the properties that were left behind by her father, comprising of five suit items, and contending that while in respect of two suit items i. e. , suit item Nos. 1 and 4, these items were absolutely owned by her father, the other three suit items were the properties in which the plaintiffs father had 1/6th right. The defendants 1 to 3 are daughters of one of the five daughters of said Bhanu Naik, while defendants 4, 5, 6 and 7 are the other four daughters and defendants 8 to 12 were the brothers-cousins of deceased Bhanu Naik with whom Bhanu Naik had 1/6th share in respect of suit item Nos. 2, 3 and 5. The relationship amongst the parties can be better depicted by the following chart. <IMG>np_1194_kccr2_2008.jpg</IMG>