Jharkhand High Court
Matius Tirkey And Anr. vs Jusuphin Lakra And Anr. on 14 September, 2007
Equivalent citations: [2008(2)JCR208(JHR)], AIR 2008 (NOC) 1147 (JHAR.) = 2008 (1) AIR JHAR R 375, 2008 (1) AIR JHAR R 375, 2008 A I H C 1144, (2007) 4 JLJR 539
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. The appellants/plaintiffs have filed the instant appeal against the judgment dated 15.10.1996 and its corresponding decree dated 23.11.1996, passed in Title Suit No. 1 of 1995 by the Subordinate Judge-I, Simdega, whereby the suit of the plaintiffs was dismissed. The suit was filed for a declaration that the permission order dated 07.12.1962 passed by the Rent Suit Deputy Collector in Miscellaneous Case No. 92 R8 II of 1962 is illegal, void and without jurisdiction and also for a declaration that the registered deed of gift executed on 21.12.1962 by Luisa Tirkey in favour of her daughter Josiphin Lakra (defendant No. 1) is void, illegal and inoperative and with a further prayer that after adjudication of the right, title, interest as well as possession of the plaintiffs over the suit land fully described in Schedule A to the plaint, to order for delivery of possession of the suit land to the plaintiffs.
2. The parties belong to the same family having a common ancestor. As per the genealogy admitted by the parties, Lajru Mahto was the common ancestor, who had two sons, namely, Botko and Buta, While Botko had two sons, namely, Lodo and Turchu, Buta had one son, namely, Sukrw, Botko's second sort, namely, Turchu died issueless, while his wile had pre-deceased him. His share in the properties of his father, therefore, devolved upon his brother Lodo. Botko's elder son, namely, Lodo died without any male issue leaving behind his widow, Luisa and daughter Josiphin (defendant No. 1). The plaintiffs are the descendants of Buta being the grand sons of Buta and sons of Sukru. The parties admittedly belong to the Uraon community and claim to be guided by the customary laws, prevailing in their community in the matter of inheritance and succession.
3. The lands under Khata No. 323 under several different plots situated within village Koramia, Mahtotoli in the district of Gumla, were recorded in the joint names of Lodo Mahato and Turchu Mahato in the revisional survey record of rights. These lands have been described in Schedule 'A' to the plaint. Schedule 'B' of the plaint contains description of the land under Khata No. 324 and 380, which were recorded in the names of Lodo Mahato and his brother Turchu Mahato.
4. The plaintiffs have pleaded that according to the customary law of the Uraon Community, if a person dies without a male issue, then his widow and daughter do not succeed to his property as heirs. The females have only right of maintenance in the property of the husband/father till their lifetime and the property devolves upon the near agnates of the deceased male. The plaintiffs have alleged that in contravention of such customary law, Lode's widow, Luisa Tirky gifted away the properties of her deceased husband by gift deed dated 21.12,1962 in favour of her daughter Josiphin Lakra. The permission for such transfer by way of gift was accorded to the said donor by the Rent Suit Deputy Collector, Simdega under Section 46 of the Chhotanagpur Tenancy Act by order dated 07,12,1962, passed in Miscellaneous Case No. 92 R8 II of 1962. The plaintiffs have claimed that the permission granted by the Rent Suit Deputy Collector was illegal, void and without authority and likewise the deed of gift executed by Luisa Tirky in favour of her daughter, Josiphin Lakra in respect of the properties mentioned, therein, was also illegal and against the law. The plaintiffs have claimed that since Lodo's daughter Josiphin Lakra was given away in marriage even during the lifetime of her father and she used to live in her matrimonial house, Lodo's widow had only a right of maintenance in her husband's property and since Lodo died without any male issue, his entire properties, according to the customary law, devolved upon the plaintiffs, who are the surviving agnates of Lodo. The further case of the plaintiffs is that their father Sukru Mahato had filed a suit against Luisa Tirky and Josiphin Lakra vide Title Suit No. 1 of 1963 before the S.D.O. Munsif, Gumla, challenging the gift deed but the plaint was returned on the ground of lack of jurisdiction of the court. Thereafter plaintiff's father Sukru Mahato filed an application before the Sub-Judge, Ranchi vide Title Suit No. 274 of 1969, which was dismissed for default on 03.08.1974, since the plaintiff Sukru Mahto had died on 12.01.1974 and his sons, namely, the present plaintiffs, who were in Assam at that time in course of their livelihood, had no knowledge about the said suit. It was only during the Revisional Survey, when the defendant No. 1, Josiphin Lakra had advanced her claim over the suit lands, the plaintiffs came to know about the said Title Suit No, 274 of 1968 and about its dismissal on 12.01.1974. The plaintiffs thereafter filed an Appeal against Luisa Tirky, challenging the mutation of her name in respect of the suit lands in the Revenue Records vide Revenue Title Suit Appeal No. 6 R of 1964-65, but the decision in the same had remained inconclusive. The plaintiffs have claimed that cause of action for the present suit had accrued to them when Title Suit No. 274 of 1968 was dismissed for default on 12.01.1974 and later in 1994 when the plaintiffs came to know about the registered deed of gift.
5. The defendant, Josiphin Lakra had contested the suit denying and refuting the entire claims of the plaintiffs' by countering that the suit is not maintainable in its present form and is bad for non-joinder of the necessary parties, namely, Julian Tirky, who happens to be her husband and also that the suit is barred by the law of limitation, besides the principles of waiver, acquiescence and estoppel. The defendant claims that she has acquired absolute right over the suit lands by adverse possession since the date of gift. Without disputing the genealogy stated by the plaintiff or the claim that the parties belong to the Uraon Community of Chhotanagpur and are governed by the customary laws prevalent in their communities, the defendant has claimed that though the females are excluded from inheriting their husband's/father's properties but a widow after the demise of her husband is entitled to hold her husband's properties in lieu of her maintenance and she is also entitled to gift away her right thereon to her daughter, if any, in lieu of maintenance, since the daughter has a right of maintenance in her father's properties till her marriage, The defendant further acknowledges that according to the customary law, if the spouse had no son but only daughter, the couple have a right to adopt a prospective son-in-law or to adopt a son and upon the demise of the couple, the adopted son-in-law or the son inherits both movable and immovable properties to the exclusion of the agnates. The defendant has claimed that even during the lifetime of her father, she was given away in marriage to her husband, Julian Tirky and both of them used to live in the house of her father and it was Julian Tirkey, who had performed the last rites of her deceased-father.
It is further claimed that Botko Mahto @ Boklo Mahto and Buta Mahto both sons of a common ancestor Lajru Mahto @ Lunjru Mahto had orally separated before the Revisional Survey according to convenience and lived separately cultivating their respective shares in their occupation. The share of the properties, which had fallen in the share of Buta Mahto had devolved upon his son, Sukra Mahto. The fact that it was a separation between Botko and Buta Mahto would be evident from the entries made in the record of right in respect of the lands under Khata No. 324 and 380 described in Schedule B of the plaint. The lands under Khata No. 323 were though recorded jointly, however, though separate possession was recorded according to their respective shares in the remark column in the Revisional Survey records. The defendant claims that her mother, Luisa Tirky had executed the deed of gift in her favour on 21.12.1962 after obtaining permission under Section 46 of the Chhotanagpur Tenancy Act from the then Deputy Collector. The father of the plaintiffs though knew about the gift deed but did not file any objection even against the notice, issued by the concerned authorities on the defendant's application for mutation of her name in respect of the properties transferred in her favour under the gift deed. After due enquiry, the application for mutation was allowed by the competent authorities, whereafter the name of the defendant No. 1 was mutated in the Revenue Records in respect to the suit lands and a Jamabandi was opened, accordingly, in her name and she has been paying regularly the stipulated rent to the Government. The defendant claims that since the day when the gift deed was executed in her favour, she alongwith her husband had come into possession of the gifted properties in exercise of her own exclusive right, title and interest and such possession was openly to the knowledge of the plaintiffs as also to the knowledge of their father, late Sukro Mahato ever since 21.12.1962' and not since March, 1994 as falsely stated by the plaintiff. The defendant claims that even otherwise, she has acquired absolute right, title and interest over the suit properties by prescription.
6. On the basis of the rival pleadings, the trial court had framed the following issues:
1. Has the plaintiff any cause of action?
2. Whether an Oman lady of the family gift away ancestral property of her ancesters to any other female of the family?
3. Whether the Oraon of Simdega Subdivision are governed by their own customary laws in matters of inheritance and succession?
4. Is the suit time barred?
5. Has the defendant acquired any right over the suit lands?
7. Clubbing the Issue nos. 2, 3 and 4 together, the trial court on the basis of the evidences adduced by the parties recorded its finding that under Section 46 of the Chhotanagpur Tenancy Act, the S.D.O. Munsif did have the power delegated by the District Collector to grant permission for transfer of any land belonging to any member of the Schedule Tribe in favour of another member of the Schedule Tribe. The trial court has also observed that the lands under Khata No. 324 were the self-acquired property of Lodo and Turchu and that since Turchu have died issueless, his share in the lands have devolved upon Lodo, who thereafter, became the exclusive owner of the lands. It is these lands, which constituted the estate owned and possessed by Lodo and came to be held by his widow Luisa Tirky and, therefore, Luisa did have authority to transfer her interest in her husband's properties in favour of her daughter. The trial court has also observed that even according to the admitted case of the plaintiff as appearing in the pleadings in the plaint filed vide Title Suit No. 1 of 1963 by the father of the plaintiffs, it was acknowledged by them that the land under Khata No. 380 was exclusively acquired by the father of the present defendant No. 1 and, as such, the plaintiffs are barred by the law of estoppel from claiming any land in Khata No. 380. The trial court has further observed that the suit of the plaintiff was barred by limitation, since the prayer for setting aside the deed of gift, the period of limitation was three years from the date of execution of the gift deed or the date when the plaintiffs got knowledge of the execution of the gift deed- The trial court has observed that the execution of the gift deed was within the knowledge of the plaintiffs' father, ever since 1963, when the plaintiffs' father had filed the suit challenging the defendant's claim for mutation of her name in respect of the suit lands and yet the plaintiffs did not take any effective steps for setting aside the gift deed within the period of limitation. The trial court has further observed that the defendant had come into physical occupation and possession of the suit lands ever since the date of execution of the gift deed in her favour in December, 1963 and this has been within the knowledge of the plaintiffs and, as such, the present suit filed after more than 34 years, is absolutely barred by limitation on the one hand and on the other hand the defendant having remained in adverse possession of the suit properties all along, she has perfected her title over the suit lands against the defendants. The trial court has thus recorded the findings on the above issues against the plaintiffs and dismissed the suit.
8. The appellants/plaintiffs have challenged the impugned judgment primarily on the ground that since the parties belong to the Uraon Community and are admittedly guided by the customary law in the matter of inheritance and succession, the trial court has committed serious error in failing to appreciate the legitimate ground taken by the plaintiffs/appellants, which was based on the customary laws available to them. Mr. P. Gangopadhaya, learned Counsel for the appellant submits that the plaintiffs have in fact advanced their claims through Raiyati right in view of the application of the customary laws. Learned Counsel explains that according to the customary law, which governs the parties since Lodo Mahto had died without leaving any male issue and since his daughter Josiphin Lakra (defendant No. 1) was given away in marriage even during the lifetime of Lodo Mahato, the properties, which Lodo Mahato had left on his death, could not be inherited either by his widow, namely, Luisa or the daughter Josaphin Lakra. Lodo's widow, Luisa could at best hold the properties in lieu of her maintenance and the properties had invariably devolved upon the plaintiffs who happen to be the nearest agnates of late Lodo Mahato. As such, Lodo's widow, Luisa could not have any right to legally transfer her husband's properties by way of gift to her daughter and likewise, for the same reasons, the Deputy Collector could not have granted any legal permission to Luisa for transferring the Raiyati rights in properties of her husband in favour of the daughter. Learned Counsel argues further that the defendant has contested the plaintiff's suit on three different grounds, each being contradictory to the other. Learned Counsel explains that on the one hand, the defendant No. 1 claims that her husband, Julian was adopted as a prospective son-in-law and, therefore, he had inherited the properties belonging to the father of the defendant No. 1 and she and her husband had thus acquired the properties by way of inheritance. On the other hand, she, the defendant No. 1 advances a contradictory claim that her mother, namely, Luisa had executed the deed of gift by which she had transferred the properties in favour of the defendant No. 1, Learned Counsel argues that if the husband of the defendant No. 1 was adopted as a prospective son-in-law and had acquired the right to inherit the properties of the father of the defendant No. 1, then there could be no occasion for the widow, Luisa to execute a gift deed of the lands in favour of her daughter, namely, the defendant No. 1. Learned Counsel further argues that plea of adverse possession is not available to the defendant/respondent No. 1, since the question of adverse possession does not rise amongst co-sharers.
9. From the pleadings of the plaintiff and the defendants and the evidences adduced by them, it is not disputed that even during the lifetime of Lodo Mahato, his daughter Josiphin was given away in marriage to Julian. The bone of contention between the parties is the deed of gift, which was admittedly executed by Luisa in favour of the defendant No. 1 by her mother Luisa in respect of the properties, which had belonged to the father of the defendant No. 1. While the plaintiffs have challenged the very authority of the donor to transfer the properties of her husband by way of gift, the defendant No. 1 has claimed her title from the gift deed while asserting that her mother did have the right to execute the gift deed in her favour firstly on the ground that the properties gifted to her were the exclusive properties of her father and secondly that the donor had every right to transfer her own interest in the estate of her husband by way of a gift.
10. Admittedly, the parties are governed by their customary laws under which the widow does not inherit the properties of her husband and neither does the married daughter inherit the properties of her father. If a person dies without a male issue, then his widow and unmarried daughter hold the properties of her husband/father in lieu of their maintenance. This right to hold the properties in lieu of maintenance also entitles a widow a life interest in the properties and she is entitled to remain in possession of the properties as a limited owner and as long as she is in such possession, her possession cannot in any way mature to an absolute title of ownership as against the rightful heirs of the deceased. The widow has therefore, no power to alienate the properties by sale or by gift. The above principle of customary law of inheritance among the tribal people of Oraon Community, is inferred from relevant authoritative texts and also relied upon in the judgment of the Patna High Court in the case of Sinta Munda and Ors. v. Jonathan Munda 1968, P.L.J.R, 215.
11. Section 46 of the Chhotanagpur Tenancy Act, 1908 imposes restrictions on transfer by a Raiyat of his right in his old age, holding by way of sale, gift and mortgage of lease. Proviso to Section 46 (1) allows a occupancy Raiyat, who is a member of the Schedule Tribe to transfer his right in his holding or a portion of his holding by way of sale, exchange, gift or will to another person, who is a member of the Schedule Tribes with the previous sanction of the Deputy Commissioner. Thus, the right, which may be transferred by way of sale, exchange; gift or deed is the occupancy rights only of a Raiyat in his holding. Yet in the instant case, the widow of Ludo Mahto, who could have had only a life interest in the properties of her husband in lieu of her maintenance, had executed the deed of gift in favour of her daughter and permission for the transfer of the properties was granted by the then Deputy Commissioner, purportedly in exercise of his powers under Section 46 of the C.N.T. Act. The execution of the impugned gift deed by the widow of late Lodo and the permission granted by the Deputy Collector for transfer of right over the lands under the gift to defendant No. 1, were illegal and incompetent. The defendant No. 1 could not have acquired any legal right over the land under the deed of gift which was executed in her favour since the donor had no legal right to gift away the properties. The trial court appears to have totally misconceived the principles of law in context of the customary law applicable to the parties. As such, the findings of the trial court on this issue is bad and not sustainable.
12. As regards the issue as to whether, the defendant No. 1 has still acquired any right over the suit lands, it appears that the execution of the gift deed with the prior permission of the then Deputy Commissioner was admittedly within the knowledge of the plaintiffs' father and he had protested against the transfer of the property of late Ludo under the deed of gift, by filing his objection before the settlement Officer, when the defendant No. 1 had sought for mutation of her name in the Revenue records in respect of the lands transferred to her under the gift deed. The said objection was overruled and the claim of the defendant No. 1 for mutation of her name was allowed, whereafter, the payable rent was fixed and the defendant No. 1 has been paying the rent for the said lands. It is also not disputed that the defendant No. 1 alongwith her husband had come into occupation and possession of the suit lands on from the date of the execution of the gift deed i.e. 22.12.1962 daiming their own exclusive right, title and interest. Such occupation and possession was openly declared as adverse to the interest of the plaintiffs and to the knowledge of the plaintiffs and their father ever since 21.12.1962. It appears from the documents and the evidences adduced by the plaintiffs themselves that though their father Sukro Mahto had raised objection against the mutation of the name of the defendant No. 1 in the revenue records in respect of the suit lands, but no specific challenge was made against the gift deed or against the order of the revenue authority granting permission for the transfer of the property by way of gift. Even though Title Suit was subsequently filed, both by the father of the plaintiff but the suit were not pursued and they were dismissed. The defendant No. 1 had thus remained continuously in possession of the suit lands openly and adversely to the interest of the plaintiff and within the knowledge of the plaintiffs. Such knowledge being ever since the date when the defendant No. 1, came into occupation of the suit lands from the date of execution of the gift deed and the purported transfer of the lands in her favour. Thus, even otherwise the defendant No. 1 has perfected her right, title and interest over the suit lands, by prescription and by adversely possessing the lands for more than 34 years prior to the institution of the present suit. It is, therefore, not open to the plaintiffs' after over 34 years, to challenge the right, title and interest of the defendant No. 1 over the suit properties, which she had acquired by way of adverse possession. The learned trial court has discussed the evidences adduced by the parties elaborately and has assigned adequate reasons for its findings on this issue. There appears no infirmity or impropriety in the findings recorded by the trial court on this issue.
13. For the reasons discussed above, I do not find any merit in this appeal. Accordingly, this appeal is dismissed with costs.