The High Court of Himachal Pradesh, presided over by Justice Rakesh Kainthla, has held that under the customary law governing polyandrous marriages in the region, the property of a deceased co-husband is inherited by the surviving joint husband (brother) and not by the children during the lifetime of the surviving co-husband. Dismissing a regular second appeal, the Court held that the Mitakshara concept of coparcenary does not apply to polyandrous family units, and children cannot claim a right or partition in the estate while any brother of the co-marriage is alive.
Background of the Case
The dispute pertained to ancestral land situated in Tehsil Rohru, District Shimla. The common ancestor of the parties was Bragi. Naro Devi was the joint wife of two husbands, Devi Saran (defendant no. 1) and Madan Singh. Both Madan Singh and Devi Saran had executed an izadinama in favour of each other, making them joint owners of the property.
Madan Singh died in 1992 Vikrami Samvat (1935 AD). Following his death, the revenue authorities sanctioned the mutation of inheritance in the name of the surviving joint husband, Devi Saran. Kali Ram was born to Naro Devi during the joint marriage. The plaintiffs, sons of Kali Ram, filed a civil suit seeking a declaration that they were exclusively entitled to Madan Singh’s share and a 1/5th share in the property of Devi Saran, along with an order declaring a family partition null and void.
Arguments of the Parties
The plaintiffs submitted that the property was joint Hindu family property governed by Mitakshara Hindu Law. They argued that their mother could not validly represent them as minors during the family partition and that a unilateral partition effected by defendant no. 1 was unconscionable and not binding on them.
The defendants contested the suit, raising preliminary objections regarding limitation, maintainability, and estoppel. They submitted that Naro Devi was the common wife of Devi Saran and Madan Singh and that the mutation of inheritance was correctly attested in favour of Devi Saran upon Madan Singh’s death in accordance with local customary law. They further contended that a family partition had taken place with consent 18 years prior to the suit, which had been acted upon.
Court’s Analysis and Observations
The High Court observed that since Madan Singh died in 1935 AD, prior to the enactment of the Hindu Succession Act, succession was governed by local customary law. The Court examined historical documentation, including the Punjab State Gazetteers (Shimla Hill States, 1910) and Dr. Y.S. Parmar’s treatise Polyandry in the Himalayas (1975), which document polyandrous customs and the jathong and kanchhong rules of partition in Bashahr, Kanawar, and Rohru.
The Court referred to the decision in Pratap Singh v. Guman Singh (2010), which approved Dr. Y.S. Parmar’s findings on the rules of inheritance in polyandrous tracts:
“A number of brothers marry one joint wife. The offspring by the common wife are the sons or daughters of the family. 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. The sons have in turn to remain joint and to get a joint wife not only for social reasons but also for economic necessity. These factors do not afford the members of the family any opportunity or inducement for a division of the property or for separation…..”
The Court further highlighted the customary rule regarding succession among brothers:
“In the case of a polyandrous family, all the sons succeed the father but remain joint. If one of the brothers dies, his sons and widow do not succeed him, but he is succeeded by his younger brother or brothers. Only when all the brothers are dead do their sons inherit the property.”
Addressing the applicability of Mitakshara coparcenary law, the High Court reiterated the principle laid down in Pratap Singh v. Guman Singh:
“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.”
Decision of the Court
The High Court concluded that traditional Hindu Mitakshara coparcenary principles do not apply to the Joridari or polyandrous system. Under customary law, Devi Saran rightly succeeded to the estate of Madan Singh upon the latter’s death. Because the plaintiffs had no right to claim succession or partition during the lifetime of the surviving co-husband Devi Saran, their suit was found to be without basis. Consequently, the High Court dismissed the regular second appeal.
Case Title: Shamsher Singh & Ors. v. Chain Ram & Ors.
Case No.: RSA No. 66 of 2008
Bench: Justice Rakesh Kainthla
Date: July 24, 2026
