Patna High Court
Kandan Soren And Ors. vs Jitan Hembrom on 28 November, 1972
Equivalent citations: AIR1973PAT206, AIR 1973 PATNA 206, 1973 PATLJR 153 ILR (1974) 53 PAT 21, ILR (1974) 53 PAT 21
JUDGMENT
1. In this second appeal by the defendants the main question of law, which arises for decision, is whether a person, who is taken as gharjamai by an aboriginal in the district of Santal Parganas, loses his right to inherit the properties of his father-in-law, if his wife dies during the life time of the father-in-law. Another question of law, which arises, is whether such a son-in-law loses his right to inherit the properties of his father-in-law by remarrying another wife during the life time of his father-in-law or is divested of the properties inherited by him, if he remarries after the death of his father-in-law.
2. One Saibu died on the 28th January, 1960. He had a daughter Dulu, who predeceased him in 1354 B. S. The plaintiff-respondent was married with Dulu. These facts are not in dispute. According to the case of the plaintiff-respondent he was married in gharjamai form and succeeded to the properties of Saibu on his death. However, as the appellants, who are agnates of Saibu, started disturbing his possession, he had to institute the suit for declaration that he was gharjamai of Saibu and for confirmation of possession or in the alternative for recovery of possession of the properties in dispute.
3. According to the case of the appellants, the plaintiff-respondent was not married to Dulu in gharjamai form and, therefore, he was not entitled to inherit the properties of Saibu. They further pleaded that according to tribal customary law, which governed the parties, they and not the plaintiff-respondent were entitled to inherit the properties of Saibu. Though not specifically pleaded in the written statement it was also alleged in the Courts below that the plaintiff-respondent, even if married in gharjamai form, lost his right to inherit the properties of Saibu as Dulu had predeceased Saibu and also on the ground that he remarried.
4. Both the Courts below have concurrently held that the plaintiff-respondent was married in gharjamai form and thus was entitled to succeed to the properties of Saibu. The trial Court accordingly decreed the suit and that decree has been affirmed in appeal by the lower appellate court. The lower appellate court has also observed that in view of the averments in the written statement the appellants could not urge that the plaintiff-respondent could not succeed to the properties of Saibu on the two grounds as aforesaid.
5. In this Court it has been contended by learned counsel for the appellants that the courts below have erred in decreeing the suit of the plaintiff. Reliance has been placed on a passage at page 950 in the Bihar District Gazetteers -- Santal Parganas-- by P.C. Roy Chaudhury, published in 1965. It has been stated therein:
"......... If the ghar-jamai daughter dies issueless, the property of the deceased will not devolve on the ghar-jamai or son-in-law. The son-in-law is joint owner with his wife and his son. In absence of these two he has no legal claim in the property. He can only claim khorposh or maintenance so long he is alive and lives as a widower. But if he remarries he forfeits even the claim of the maintenance........."
The above quoted statement by the learned author is at variance with the customary law of inheritance prevailing among aboriginals in the district of Santal Parganas, as stated in the Bihar District Gazetteers by L. S. C. O' Malley, published in the year 1910, and its Second Edition by Rai Bahadur S.C. Mukharji, published in the year 1938. It is also at variance with what is stated about Santal Tribal law of inheritance in paragraph 46 of the Final Report on the Revision Survey and Settlement Operations in the district of Santal Parganas 1922-35 by J.F. Gantzer, published in 1936. Mr. P.C. Roy Chaudhury is still alive and his opinion in the aforesaid book quoted above as to the usages and tenets of any body of men or family as of a person having special means of knowledge is not admissible in evidence because of the provisions of Section 60 of the Indian Evidence Act, which says "oral evidence must, in all cases whatever, be direct, that is to say--
X X X X if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable."
6. Further, in our opinion, the statement in the Final Report on the Settlement operations stating on what basis entries were made in the record of rights is more authentic and reliable than the statement in the Gazetteers. Even according to the Bihar District Gazetteers of the District of Santal Parganas, which were published in the years 1910 and 1938, a ghar-jamai acquires the status of an adopted son. These Gazetteers do not say that in case of death of his wife within the life-time of his father-in-law or his remarriage after the death of his wife he loses the right to inherit the property of his father-in-law. They also do not say that if he remarries after the death of his father-in-law, when the property has already vested in him, he is divested of the property. It may be stated here that though, as stated earlier, no such case was made out in the written statement, it was put to P. W. 6, the plaintiff himself, whether he remarried after the death of his wife and his answer was that be did remarry but again gave up that second wife. It is not clear from the evidence whether he remarried before the death of his father-in-law or after his death.
7. In the Final Report on the Revision Survey and Settlement Operations in the district of Santal Parganas 1922-35 by J.F. Gantzer the Santal Tribal law of inheritance has been stated as follows:--
"According to Santal tribal law only males can inherit land. Sons jointly succeed their father. If brothers are co-sharers in a holding and one brother dies without issue, the surviving brothers and the sons of predeceased brothers inherit his share per stirpes. The Hindu or Muhammadan laws of succession do not apply to Santals. Santal tribal law is quite definite in not allowing females to inherit, but this law is gradually undergoing a change and the situation created by this change is discussed in a separate paragraph below. According to tribal custom it is permissible for a man with daughters and no sons to take a son-in-law into his house as a ghar-jamai and to give him (hereby all the rights of a son. The adoption of a ghar-jamai is a formal proceeding leaving no room for doubt as to the father-in-law's intention and resulting in the ghar-jamai cutting off all connection with his own family as far as his rights to property are concerned, and becoming to all intents and purposes the son of his father-in-law. When such adoption has been formally made, the gharjamai can succeed as a son and oust other male relatives. It is of importance to note that a gharjamai can be adopted only by a deliberate public act in the presence of the village community at the time of the marriage, and that according to tribal law a father-in-law cannot at a later stage convert an ordinary son-in-law into a ghar-jamai. A widow cannot in any circumstances create a gharjamai. There is a distinction between a ghar-jamai and a ghardi-jamai. In both cases the bridal party goes from the bride's house to fetch the prospective husband and no dowry (pon) is given, but whereas the ghar-jamai is adopted permanently as a son, a ghardi-jamai merely lives and labours in his wife's home for a previously stipulated period which may extend up to five years. He thereby works off the debt due on account of the non-payment of pon. A ghardi-jamai is not entitled to get anything from his wife's family, but the woman herself is usually given a small present (arpa) annually at the harvest season, and this is utilized for setting up her new home. At the expiry of the stipulated period, the ghardi-jamai is free and may return to his own home with his wife.
When a ghar-jamai has succeeded to his father-in-law's estate the holding has usually been recorded in his sole name. In some cases, at the request of the parties, the wife has been jointly recorded with her husband."
This shows that it is the ghar-jamai who succeeds to his father-in-law's estate even when his wife it alive. Name of the wife is jointly recorded in the survey record of right with her husband only if the husband agrees to that and makes a request for that. It is obvious from this statement of law in the Final Report as to Santal tribal law of inheritance that it is the ghar-jamai who succeeds to the estate of his father-in-law even in preference to his wife. Again a distinction has been pointed out between a ghar-jamai and ghardi-jamai. Whereas a ghar-jamai is ad-Opted permanently as a son, a ghardi-jamai merely lives and labours in his wife's house. According to the plaintiff's case, as stated, he was a ghar-jamai and that fact has been found in his favour by the final court of fact. In our opinion, therefore, according to tribal law of inheritance prevailing among Santals in the district of Santal Parganas, the plaintiff was entitled to succeed to the properties of his father-in-law, irrespective of the fact that his wife died during the life time of his father-in-law. He was also not disentitled from, succeeding to the estate of his father-in-law even if after the death of his wife he remarried during the life time of his father-in-law nor the estate, once vested in him after the death of his father-in-law, could be divested on account of his re-marriage thereafter. The courts below, therefore, have rightly decreed the suit
8. In the result, the appeal fails and is dismissed but, as no one has appeared to contest it, without costs.