Jharkhand High Court
Lakshmi Narayan Tudu @ Lakshmi Narayan ... vs Smt. Basi Majhian And Ors. on 11 May, 2004
Equivalent citations: AIR2004JHAR121, [2004(3)JCR168(JHR)], AIR 2004 JHARKHAND 121, 2004 AIR - JHAR. H. C. R. 1961, (2004) 21 ALLINDCAS 192 (JHA), (2004) 3 JCR 168 (JHA), 2004 (21) ALLINDCAS 192, (2004) 4 CIVLJ 635
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of the defendants-appellant has been directed against the impugned judgment and decree of affirmation dated 9.9.1989 and 18.8.1989 respectively passed in Title Appeal No. 16 of 1981 by Shri P. Xaxa 1st Additional District Judge, Singhbhum at Chaibasa whereby and whereunder the judgment dated 25.5.1981 passed in Title Suit No. 33 of 1980 by Subordinate Judge, Singhbhum, Chaibasa decreeing the suit was affirmed and the said appeal was dismissed.
2. The plaintiffs-respondent have filed the said title suit for metes and bounds partition of the suit property detailed in Schedule B of the plaint claiming half share therein and for carving out a separate takhta of their half share by appointing a competent Commissioner.
3. The case of the plaintiffs-respondent, in brief, is that parties to the suit are descendants of their common ancestor Bhaktu Manjhi deceased who died leaving behind his two sons, namely, Jhuttu Manjhi and Baya Manjhi. Said Baya Manjhi died in the month of May, 1973 in the state of jointness with his brother Jhuttu Manjhi leaving behind his two sons, namely, Lakhi Narain Tudu and Chandra Pratap Tudu who are defendants-appellant in this case Jhuttu Manjhi aforesaid died in the month of September, 1979 leaving behind his three daughters i.e., plaintiff-respondent Nos. 1, 2 and 3 and a son and a minor daughter of his pre-deceased daughter and they are plaintiff-respondent Nos. 4 and 5. Their case is that parties to the suit are Santhals but they are sufficiently Hinduised and are governed by Hindu Law in the matter of succession and inheritance. The suit property belonged to Bhaktu Manjhi aforesaid and on his death the suit property was inherited by his two sons Jhuttu Manjhi and Baya Manjhi and they remained in possession thereof without any partition by metes and bounds but they used to cultivate the suit property as per their convenience and in the survey settlement of 1961 they were jointly recorded in respect of the suit property but their separate possession was recorded in the remark column of the Survey Records of Right in respect of the lands of Khata No. 64 only situate in village Gamharia and even after the death of Baya Manjhi their sons i.e., defendants-appellant and his brother Jhuttu Manjhi continued to remain in possession of the suit properties without any partition by metes and bounds and after the death of Jhuttu Manjhi the plaintiffs-respondent inherited the half share in the suit property of Jhuttu Manjhi. It is alleged that differences arose between the parties in respect of the suit properties after the death of Jhuttu Manjhi and they demand for partition of the suit property which was refused by the defendants-appellant and hence the necessity for the suit.
4. The case of the defendants-appellant, inter alia, is that the parties to the suit are Santhal and they do not subscribe the Hindu faith and they practised the religion of the Santhal Tribe i.e., Sarna religion and observed the tribal form of worship and festivals and it is false to say that the parties to the suit are sufficiently Hinduised and governed by the Hindu law in the matter of succession and inheritance. It is alleged that the parties being Santhals are governed by their tribal customs in the matter of succession and inheritance and according to the prevalent customs, the daughters and the sons, and daughter of a pre-deceased daughter do not inherit the properties of their father or their maternal grand father and according to the Santhal custom by which parties to the suit are governed, if a person dies without a male issue his share in the property stands inherited by his nearest agnates and in case of the existence of an unmarried daughter she is only entitled to maintenance till her marriage and the plaintiff-respondent Nos. 1, 2 and 3 are married daughters of Jhuttu Manjhi, deceased, their marriage having been solemnized in his life time and the plaintiffs-respondent have no right in the suit property to seek partition of the suit property and the defendants-appellant being the nearest agnate of Jhuttu Manjhi has succeeded his share in the suit property and became the owner of the entire suit property. Their further case, in the alternative, is that if the parties are sufficiently Hinduised and governed by Hindu law in the matter of succession and inheritance then also the plaintiffs-respondent have not and could not "inherit the half share in the suit properties being the heirs of Jhuttu Manjhi as per the Mitakshara School of Hindu Law and the defendants-appellant have inherited the interest of Jhuttu Manjhi on his death in the ancestral properties by the principle of survivorship as coparceners. It is also alleged that the Hindu Succession Act, 1956 does not apply to the parties as they being Santhal are Scheduled Tribes within the meaning of Clause (25) of Article 366 of the Constitution.
5. In view of the pleadings of the parties the Trial Court has framed the following issues for adjudication in this case :--
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got any valid cause of action for the suit?
(iii) Is the suit barred by the law of limitation?
(iv) Is the Court fee paid sufficient?
(v) Have both the parties been sufficiently Hinduised and or they governed by Hindu Law in the matters of succession and inheritance?
(vi) Is their unity of the title and unity of possession between the parties with respect to the properties in suit described in Schedule B of the plaint?
(vii) Are the plaintiffs entitled to a decree for partition, if so to what extent and with respect to the what properties?
(viii) To what relief or reliefs, if any, are the plaintiffs entitled?
6. In view of the evidence oral and documentary on the record the learned Trial Court while deciding issue No. (v) has held that both the parties to the suit have been sufficiently Hinduised and are, therefore, governed by Hindu Law in the matters of inheritance and succession and their ancestors were also sufficiently Hinduised and they were governed by Hindu Law in the matter of inheritance and succession. It has also been held that Hindu Succession Act, 1956 covers the cases of all other races/tribes of Bihar who have sufficiently become Hinduised and they will therefore, be governed by the present Act as they were governed by old Hindu Law. The learned Trial Court while deciding issued Nos. (vi) and (vii) has held that there is unity of ownership and possession between the parties with respect to the suit property in which the plaintiffs-respondent being the heirs of Jhuttu Manjhi have half share therein and they are entitled for the metes and bounds partition of the suit property to the extent of their share by carving out a separate thakta.
7. Aggrieved by the judgment and decree of the Trial Court the defendants-appellant preferred Title Appeal No. 16 of 1981. The learned appellate Court below affirmed the finding arrived at by the Trial Court on re-appraisal and re-appreciation of the evidence oral and documentary on the record and dismissed the appeal as per the impugned judgment and decree. The learned appellate Court below has also held that the parties to the suit are sufficiently Hinduised and they are governed by Hindu Law in the matter of inheritance and succession and Section 6 of the Hindu Succession Act, 1956 is applicable to them and the plaintiffs-respondent being the heirs of Jhuttu Manjhi has inherited his share in the suit property and thus they are entitled for partition in respect of the half share in the suit property. In view of the findings aforesaid the learned appellate Court below has dismissed the appeal.
8. The defendants-appellant being aggrieved by the impugned judgment have preferred this appeal and this Court while admitting the appeal has formulated the substantial question of law vide order dated 24.7.1990 which runs thus :--
"Whether Hindu Succession Act or Hindu Law in applicable in the matter of inheritance among the members of Scheduled Tribes, if they are sufficiently Hinduised and if so, where a daughter has any share in the property?"
9. Assailing the impugned judgment it has been submitted by the learned counsel for the defendants-appellant that parties to the suit are Scheduled Tribes and they are Santhals governed by the customary law and both the Courts below have erroneously come to the finding that they have been Hinduised sufficiently and thus the provisions of Hindu Succession Act, 1956 have its application regarding succession/inheritance in their case. It has further been submitted that as per the customary law of the Santhals, the daughters are not the heir of Jhuttu Manjhi, deceased and succession in their case is patrilineal and Section 2(2) of the Hindu Succession Act, 1956 mandates that notwithstanding anything contained in Sub-section (1) of Section 2 of the said Act, nothing contained in this Act shall apply to the members of any Scheduled Tribes within the meaning of Clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette otherwise directs and thus the Hindu Succession Act, 1956 is not applicable to the custom governed tribals. In support of his contention reliance has been placed upon the ratios of the case of Madhu Kishwar and Ors. v. State of Bihar and Ors., AIR 1996 SC 1864 and Satish Chandra Brahma v. Bagram Brahma and Anr., AIR 1973 Gauhati 76. It has also been submitted that in view of the bar under Section 2(2) of the said Act even if the parties to these cases are sufficiently Hinduised, the provisions of 1956 Act shall not apply in their case and the old uncodified Hindu Law may have its application on them and as such plaintiffs-respondent cannot be the heirs of Jhuttu Manjhi, deceased who has died in the State of jointness with the defendants-appellant and his estate in that case shall devolve upon the defendants-appellant by the rule of survivorship and in this view of the matter the plaintiffs-respondent are not the heirs of Jhuttu Manjhi, deceased to claim any share in the suit property by way of partition. Thus the learned Courts below have committed a manifest error in decreeing the suit and the impugned judgment, therefore, is unsustainable.
10. None has appeared on behalf of the plaintiffs-respondent in this appeal in spite of service of appeal notice.
11. It is pertinent to mention at the very outset that there is no dispute in the genealogy of the parties to this case. The suit property admittedly stands jointly recorded in the name of Jhuttu Manjhi and Baya Manjhi, the sons of Bhaktu Manjhi, deceased. Baya Manjhi aforesaid has died in the year 1973 in the state of jointness leaving behind his two sons i.e., the defendants-appellant and his brother Jhuttu Manjhi. It is also an admitted fact that, thereafter, Jhuttu Manjhi died in the month of September, 1979 in the state of jointness with the sons of his brother Baya Manjhi, deceased leaving behind his daughters and the children of his predeceased daughter. The descendants of Jhuttu Manjhi are the plaintiffs-respondent in this case. There is no denying the fact that parties to this case are Scheduled Tribes i.e., Santhal. Both the Courts below have concurrently held as per the proper scrutiny and appreciation of the evidence on the record that the parties to the suit are sufficiently Hinduised. In the case of Chunku Manjhi and Ors. v. Bhabani Majhan and Ors., AIR (33) 1946 Pat 218. it has been observed by the Division Bench of the Patna High Court which runs thus :--
"To sum up, the position is that it is possible in law that aborigines of non-Hindu origin can become sufficiently Hinduised so that in matters of inheritance and succession they are prima facie governed by the Hindu Law except so far as any custom at variance with such law is proved, that for the purpose of Hinduisation any formal ceremony of conversion is not necessary, that the test as to whether people of non-Hindu origin have become Hindus out and out consists not in their following the religious rules of the Srutis and Smritis or their completely giving themselves up to Brahmanical rules and rituals but in their acknowledging themselves to be Hindus and, in adopting Hindu social usages, the retention of a few relies of their ante-Hinduism period notwithstanding. In cases where complete Hinduisation is proved, the parties are to be prima facie governed by the rules of the Hindu Law, and the burden of proving that any special custom obtained in the community either as a relic of their non-Hindu period or otherwise is upon the party who sets it up."
It has also been observed therein that :--
"The question whether a family or a tribe of non-Hindu origin has been so far Hinduised as to attract the provisions of the Hindu Law in matters of inheritance and succession, is a mixed question of law and fact."
It has also further been observed that :--
"The Hindu Law of Inheritance (Amendment) Act, 1929, applies also to those person who but for the passing of the Act, would have been subject to the law of Mitakshara'. Thus, it applies to Santhals of Chotanagpur who are Hindus and are governed by the Mitakshara School of Hindu Law in matter of inheritance and succession."
In the case of Budhu Majhi and Anr. v. Dukhan Majhi and Ors., AIR 1956 Pat 123, it has been observed that it is not necessary that the parties must be completely Hinduised. Even if they had been sufficiently Hinduised so as to be governed by Hindu Law of succession, it is enough. It has also been observed that :--
"Adoption of Hindu names, employment of priests, performance of pujas, such as Durga Puja, Mansa Puja, Kali Puja etc. offering of pindas, observing of mourning, performance of funeral ceremonies are sufficient proof of a family, aboriginal in origin, having adopted Hinduism in its entirety. The test as to whether people of Hindu origin have become Hindus out and out consists not in their following the religious rules of Srutis and Smritis or their completely giving themselves up to Brahmanical rules and rituals but in their acknowledging themselves to be Hindus and in adopting social usages, the retention of a few relics of their ante Hinduism period notwithstanding. A formal conversion is not a pre-requisite to a person becoming a Hindu."
In the case of Langa Manjhi and Ors. v. Jaba Manjhain and Ors., 1970 PLJR 573, it has been observed that :--
"The term Hindu is not an anthropological one but is used in a theological sense as distinguished from national or racial sense, and, therefore, many persons of aboriginal tribes and origins have been absorbed in the Hindu faith and have come under the sway of Hindu law.
It has further been observed that :--
"Now, the well established position of law is that it is possible that aboriginals of non-Hindu origin can become sufficiently Hinduised so that in matter of inheritance and succession they are prima facie governed by Hindu Law, except so far any custom at variance with such law is proved.... In cases it is established that the parties of non-Hindu origin have been Hinduised, prima facie, they are governed by the rules of Hindu law and the burden of proving that the old custom of that community still exists is upon the party who sets it up.... whether a person is Hinduised completely or otherwise is a question of fact and cannot be gone into in Second Appeal."
In this connection the ratio of the case of Dhanai Majhi and Anr. v. Ranga Majhi and Ors., 1999 (1) PLJR 605, is also referred hereto in which it has been observed that :--
"The parties have become Hinduised by efflux of time and they are governed by Hindu Law and as such when they become Hindus long before 1926 then they can be said to be governed by the Hindu Succession Act, 1956 also."
The Apex Court in the case of Labishwar Manjhi v. Pran Manjhi and Ors., 2001 (2) Supreme 568, has observed that when evidence disclosed that parties belonging to Santhal Tribe were following customs of Hindus and not of Santhals provision of Hindu Succession Act would apply to inheritance of property. It has also been observed therein that :--
"The findings is that they are following the customs of the Hindus and not of the Santhals. In view of such a clear finding, it is not possible to hold that Sub-section (2) of Section 2 of Hindu Succession Act excludes the present parties from the application of the said Act. Sub-section (2) only excludes members of any Schedule Tribes, admittedly as per finding recorded in the present case though the parties originally belong to the Santhal Scheduled Tribe they are Hindus and they are following the Hindu traditions. Hence, we have no hesitation to hold that Sub-section (2) will not apply to exclude the parties from application of Hindu Succession Act."
It, therefore, appears, from the ratio of the case referred to above that it is the well recognized principle of law that if a Santhal though a Scheduled Tribe if sufficiently Hinduised shall be governed by Hindu Succession Act, 1956 in the matter of succession and inheritance.
12. Now adverting to the contention of the learned counsel for the defendants-appellant it is essential to mention at the very outset that Section 2(2) of the Hindu Succession Act, 1956 mandates that notwithstanding anything contained in Sub-section (1) nothing contained in this Act shall apply to the members of any Scheduled Tribe, within the meaning of Clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. The Apex Court in the case of Madhu Kishwar and others, (supra) has observed in para 47 that neither the Hindu Succession Act nor the Indian Succession Act, nor even the Shariat law is applicable to the custom governed tribals. However, in the minority view in the said case it has been stated that if before codification any Schedule Tribe was governed by Hindu Law. it will continue to be governed by it and it would be uncodified Hindu Law that would apply to them. It has also been observed by the Orissa High Court in the case of Dasarath Naik v. Gura Bewa and Ors., AIR 1972 Ori 78, that under Section 2(2) of the Hindu Succession Act it has been clearly stipulated that the Hindu Succession Act would not apply to members of the Scheduled Tribe unless there is a notification by the Central Government in the Official Gazette making the Hindu Succession Act applicable to the Scheduled Tribes and parties to this case belong to Bathudis sub caste i.e., Schedule Tribe and the members of Bathudis sub-caste being the members of the Scheduled Tribe are not governed by the said Act. The Gauhati High Court in the case of Satish Chandra Brahma, (supra) has observed that the parties in the present case, who admittedly belong to Boro or Boro Kachari Scheduled Tribe, are governed by the Bengal School of Hindu Law but they are not governed by the Hindu Succession Act, 1956. It has also been observed that even though the Hindu Succession Act, 1956 is not applicable to the parties in the present suit but Hindu Law as it was prior to 1956 Act will be applicable to the present case regarding succession. It is relevant to mention here that in all the aforesaid cases, no doubt, the parties were the members of the Schedule Tribes but it was not a case of the parties therein that they are or have been sufficiently Hinduised. Therefore, the ratio of the aforesaid cases have no application in the facts of the case in hand. However, the matter has been finally set at rest by the Apex Court as per the ratio of the ease of Labishwar Manjhi, (supra) which has been quoted above. Here in this case it is the concurrent finding of both the Courts below that parties to the suit are sufficiently Hinduised and in this view of the matter it cannot be said that Section 2(2) of the Hindu Succession Act excludes the present parties from the application of the said Act. It is made clear that Section 2(2) of the said Act only excludes members of any Scheduled Tribes but as per the concurrent finding recorded in the case at hand the parties though originally belong to the Santhal Scheduled Tribe but they are Hinduised and they follow the Hindu tradition, hence Section 2(2) of the said Act will not apply in this case to exclude the parties from application of Hindu Succession Act, Section 6 of the Hindu Succession Act, 1956 is relevant regarding the matter in controversy and for proper appreciation it is quoted below :--
"6. Devolution of interest of coparcenary property.--When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary of intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.--For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest to therein."
The initial part of this section stretches that the said Act does not interfere with the special rights of those who are member of a Mitakshara coparcenary except to the extent that it seeks to ensure the female heirs and daughter's son specified in Class I of the schedule a share in the interest of a coparcener in the event of his death by introducing a concept of a notional partition immediately before his death and the carving out of his aliquot share in the coparcenary property as of date. It makes provision firstly for the retention of the right by survivorship and then engraft on that rule the important qualification enacted by the proviso which operates only where the deceased has left him of surviving daughter's son or any female heir specified in Class I of the schedule of the Act. The said proviso confers new rights upon the specified female heirs and the predeceased daughter's son of a deceased coparcener and superimposes upon the integrated structure of the law relating to Mitakshara coparcenary a rule intended to be remedial and beneficial. Therefore, in a case falling under the proviso, the interest of the deceased coparcener if he died without making a testamentary disposition of the same devolves by intestate succession upon the persons specified in Class I of the schedule and they inherited that interest simultaneously and takes it as tenants-in-common and not joint tenants. Here in this case the plaintiffs-respondent are Class I heir of deceased Jhuttu Manjhi and thus the interest of the deceased Jhuttu Manjhi shall devolve upon them by intestate succession and the defendants-appellant cannot inherit the said property by the rule of survivorship. Therefore, I see no substance in the contention of the learned counsel for the defendants-appellant.
13. Both the Courts below have rightly decided the matter in controversy between the parties and I see no illegality in the impugned judgments-requiring an interference therein.
14. There is no merit in the appeal and it fails. The impugned judgment of the learned appellate Court below is hereby affirmed. The appeal is dismissed. However, there shall be no order as to costs.