PRATAP SINGH Vs. GUMAN SINGH

JUDGEMENT

(1.) This case raises interesting questions regarding the laws of inheritance in respect of parties governed by custom where a mixed system of polyandry and polygamy was being followed. The parties belong to area of Tehsil Shillai, District Sirmour. According to them at the relevant time a custom known as "Joridari" was in existence. This custom was a mixture of both polygamy and polyandry. Under this Joridari system the eldest brother amongst the brothers was the pivot and the woman who was brought into the house in a marriage ceremony became the wife of all the brothers who joined him or associated with him. It was not necessary for all the brothers to join the Joridari but when two or more brothers join together in this common marriage the wife became the common wife of these brothers. If over a period of time the brothers wanted to marry another woman and bring her into the family she also became the joint wife of all the brothers. Therefore, if there were more than one wife, all the wives were the common wives of the brothers.

(2.) 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.

(3.) 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 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 any preference. The property was divided per-capita and not per stripes. 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 were less then the wives would be divided within groups of brothers. Under the system where polyandry or system of Joridari was followed normally the children were treated to be the children of eldest brother.