Jharkhand High Court
Philip Marandi vs Satya Hansda on 23 January, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Second Appeal No. 198 of 2008
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1.Philip Marandi, son of late Jaideo Marandi
2.Krishna Marandi, son of late Mansu Marandi, all the residents of village Mejhia, PO and PS Jamtara, District Jamtara -died on 16.3.2009 ...Plaintiffs/Appellans/Appellants
-- Versus --
1.Satya Hansda, son of late Lal Hansda-dead, deleted vide order dt.9.06.2022
2.Deo Sharan Hansda, son of Satya Hansda
3.Devi Lal Hansda, son of Satya Hansda
4.Sukdeo Hansda, son of Satya Hansda All residents of Village Kenduatand, PO and PS Jamtara, District Jamtara and present resident of Village Meghia, P.S. Jamtara, District Jamtara .... Defendants/Respondents/Respondents
5.Paresh Marandi, son of late Mansu Marandi resident of village Mejhia, P.O. and P.S. Jamtara, District Jamtara ... Plaintiff/Appellant/Proforma Respondent
6.Deputy Commissioner, Dumka .... Proforma Defendant 2nd Party/Respondent/Respondent
7.Budhudeo Marandi, son of Late Jaideo Marandi, r/o village Mejhia, P.S. Jamtara, District Jamtara
8.Dilip Marandi, son of late Jaideo Marandi, r/o Village Mejhia, P.S. Jamtara, District Jamtara
9.Malindo Marandi, son of late Ratan Mrandi, r/o Village Mejnia, P.S. Jamtara, Disrtrict- Jamtara ......Plaintiffs/Appellants/Proforma Respondents.
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants :- Mr. K.K.Ambastha, Advocate For the Resp.State :- Mr. Nawal Kishore Pandey, AC to SC (L&C)-I
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28/23.01.2023 Heard Mr. K.K.Ambastha, the learned counsel appearing on behalf of the appellants.
The present Second Appeal has been filed being aggrieved and dissatisfied with the judgment and decree dated 07.08.2008, decree signed on 22.08.2008 passed by the learned Vth Additional District Judge, Fast Track Court, Jamtara, dismissing Title Appeal No.27 of 2005 and affirming the judgment and decree dated 30.9.2005, decree signed on 17.11.2005 passed by the learned Sub-Judge-I, Jamtara, dismissing the Title Suit No.85 of 1986.
Title Suit No.85 of 1986 was instituted for adjudication under the Santhal Pargana Customary Law in the matter of succession as 2 there is no custom of adoption. The further relief was sought that the plaintiffs and proforma defendants are nearest agnates and the proforma defendants succeeds in the estate /suit land left by Babulal Marandi. A decree in favour of plaintiffs and proforma defendants that contesting Satya Hansda and others have got no right and title over the property of Babu Lal Marandi including the suit land, confirmation of possession and delivery of possession over the suit land and permanent injunction like the relief sought in the suit. The suit on contest was dismissed and aggrieved with that the appellant herein filed the Title Appeal No.27 of 2005 which was decided by the judgment dated 07.08.2008 whereby the learned appellate court has been pleased to confirm the judgment of the learned trial court and in that view of the matter, the present second appeal has been filed.
In the plaint, it was contended on behalf of the appellant that the plaintiffs and contesting defendants as well as proforma defendants are scheduled tribes and Santhal by caste and they are governed by their tribal customary law. Jote no. 21 of mouza Mejhia was recorded in the names of Khepa Manjhi, Barka Manjhi, Thakur Manjhi and Ram Manjhi. They were sons of Late Jata Manjhi the common ancestor. After the mutual separation between themselves the said Jote no. 21 fell in the share of Barka Marandi and same has been settled with and possessed by Babulal Marandi S/o Barka Marandi. As per Mr. Mackferson settlement jote no. 21 a pertains AKJ no.91 of mouza Mejhia the said Jote no. 91 consisting of several plots full description has been given in Scheduled A of the plaint is the suit land. The plaintiff's further case is that Babulal Marandi died issue less and therefore the plaintiffs, proforma defendants and their predecessor? in interest succeeded to the landed property left by Babulal Marandi as nearest agnates. When Babulal Marandi died his widow Mahi Majhian was alive and she did not re-marry 3 and she lived in the same house of Babulal Marandi where plaintiffs were living. It is further stated by plaintiffs that Babulal Marandà had a sister namely Sahu Majhian who was married with Lal Hansda of village Kenduatanr. According to plaintiff's case further after the death of Babulal Marandi and plaintiffs and proforma defendants first party came into possession over the suit land and they also looked after Mahi Majhian the widow of Babulal Marandi till her death in 1983. After the death of Mahi Majhian the contesting defendants Satya Hansda, Deo Sharan, Devilal and Sukhdeo in collusion with some villagers started creating trouble in the peaceful possession of the plaintiffs over the suit land. Even a petition was filed by Satya Hansda before S.D.O. Jamtara apprehending breach of peace. In the proceeding drawn by S.D.O Satya Hansda asserted his claim over the suit land as an adopted son of Babulal Marandi and he also claimed that Babulal had executed a register/deed of adoption in his favour in the year 1944. According to plaintiff's case further there is no custom of any adoption in Santhal customary law and therefore adoption deed does not give right, title and interest over the suit land. According to the plaintiff's agnates are entitled for inheriting the property left by Babulal Marandi and claim of Satya Hansda as adopted son of Babulal Marandi was against the customary law. The cause of action of the suit arose when plaintiffs came to know about the existence of alleged adoption of deed in the year January 1984.
The case of the respondent/defendants is that the contesting defendants Satya Hansda put his appearance filing written statement and contested the suit. The case of defendants in brief is that suit was not maintainable same is barred by principles of estopple, acquiescence, bad for miss joinder of party, the suit is barred by limitation and in correctly valuation had been done. The averment of plaintiffs in plaint contesting has been denied by the defendants. 4 According to defendants the Santhali of locality to which parties belonged have accepted the Hindu way of life and in the matter of succession they are governed by Hindu law. Therefore there had been custom of adoption in the community. The defendant's further case is that Babulal Marandi was the owner of khata no.91 and this khata no. 91 has nothing to do with khata no.21 of Matferson settlement. Defendants have also denied the genealogy as furnished in paragraph 4 of the plaint. According to defendants Khepa Thakur and Ram Marandi were not uncles of Babulal Marandi and they have been wrongly shown in the genealogy table. It is further stated in the written statement that defendant no.1 Satya Hansda since his childhood looks after Babulal Marandi and cultivated the land of Babulal Marandi and he was taken in adoption by Babulal Marandi. In proof of such adoption even a deed of adoption, was executed by Babulal Marandi on 3/1/44 and therefore the defendants for the purpose of inheritance and other related matters became son of Babulal Marandi and he is continuing his search. According to defendants' case further plaintiffs or proforma defendants or their predecessor in interest never inherited any property nor they came in possession over the suit land as owned and left by Babulal. It has been denied by defendants that sister of Babulal Marandi (mother of defendant no.1) never lived in village Majhia. According to the defendants even after the marriage sister of Babulal Marandi started living in Majhia with Babulal Marandi and children born to Sahu Majhian and Lal Hansda also lived in the house of Babulal Marandi. According to defendant there is also custome in Santhal community for adopting a son and as per said community custom Babulal Marandi had adopted defendant no.1 and his son. Defendants further case is that is wrong to say that plaintiffs were in possession over the suit property tried to disturb the possession on the contrary plaintiffs are proforma defendants never entered into the possession or exercised any 5 kind of possession over the property left by Babulal Marandi and in order to harass defendants they have filed a suit without having any valid cause of action. The suit is malicious one and therefore same suit should be dismissed.
Mr. Ambastha, the learned counsel appearing on behalf of the appellants submits that the learned trial court as well as the learned appellate court has erred in law and has wrongly come to the conclusion that in the santhals the custom of adoption is there and to buttress his such argument, he relied on subsection (2) of section 2 of the Hindu Succession Act, 1956 and by relying on it, he submits that the Hindu Succession Act is not applicable and in that view of the matter, the judgment of the learned trial court and the learned appellate court are bad in law and this second appeal is fit to be admitted on the question of law.
In view of submission of Mr. Ambastha, the learned counsel, the Court has gone through the judgment of the learned trial court as well as the learned appellate court and finds that the witnesses have deposed before the trial court and they have disclosed that there are custom of adoption of son, even if the provisions are not there and the son and daughter has been adopted by santhals and this has been discussed relying on paragraph no.10 of the appellate court judgment. The learned trial court has also discussed the evidence of the witnesses who have stated that there are provision of adoption in the santhals and looking to the said statement the learned trial court as well as the learned appellate court has indicated the contention of the appellant. The customary law of adoption prevailing in the santhals has been recognized in the Santhal Pargana Tenancy (Supplementary Provision) Act, 1949 and section 20 of the said Act put restriction on transfer of raiyati in the holding and this aspect of the matter has been considered by a 6 coordinate Bench of this Court in the case of Narayan Soren and Others v. Ranjan Murmu and Others, reported in MANU/JH/1134/2008, paragraph nos.18, 19, 20, 21 and 22 of the said judgment are quoted hereinbelow:
"18. The customary law of adoption prevailing in the Santhals has been recognized in the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. Section 20 of the said Act put a restriction in the transfer of raiyati holdings by a raiyat except with the written permission of the Deputy Commissioner. Section 20 of the Act however, provides some relaxation in the transfer of raiyati land by way of usufructuary mortgage to Bank and the Society registered under Bihar and Orissa Co-operative Societies Act, 1935. Section 24 of the Act makes registration of certain transfers of raiyati holdings mandatory. Section 24 reads as under:
"24 Registration of certain transfers of raiyati holdings.-- (1) When a raiyati holding or any portion thereof is transferred by sale, gift, will or exchange in accordance with the provisions of this Act and the record-of-rights, the transferee or his successor in title may cause the transfer to be registered in the office of the landlord of the village.
(2) Notwithstanding anything to the contrary contained in the record-of-rights or any law or anything having the force of law in the Santal Parganas, the landlord shall allow the registration of such transfers, and shall not be entitled, except in the case of a transfer by sale, gift or will, to levy any registration fee. In the case of a transfer by sale, gift or will, the landlord shall be entitled to levy a registration fee of the following amount, namely,--
(a) when rent is payable in respect of the holding or portion, a fee of two per centum on the annual rent thereof:
Provided that such fee shall not be less than eight annas or more than fifty rupees; and
(b) when rent is not payable in respect of the holding or portion, a fee of one rupee:
Provided that a gift to the husband or wife of the donor to a son adopted under the Hindu Law, or the daughter, sister, adopted son or adopted daughter of the donor under the Santal Law, or to a relation by consanguinity within three degrees of such donor shall not require any registration fee to be paid to the landlord.
(3) If any landlord refuses to allow the registration of any such transfer as is mentioned in sub-section (1), the transferee or his successor in the title may apply to the Deputy 7 Commissioner, and the Deputy Commissioner shall thereupon, after causing notice to be served on the landlord, make such enquiry as he considers necessary, and shall, it he is satisfied that the transfer is not contrary to the provisions of this Act or the record-of-rights, pass an order declaring that the transfer shall be deemed to be registered, and may also pass such order as he thinks fit in respect of the costs of any such enquiry."
19. From reading of proviso 2 of subsection (2) of Section 24, it is evidently clear that it gives relaxation by providing that in case of gift of adopted son or adopted daughter of the donor under the Santhal Law, no registration fee is required to be paid. There is sufficient indication about the custom of adoption amongst the Santhals.
20. Be that as it may, the only substantial question of law needs to be answered in this appeal is as to whether the Courts below have erred in law in placing the onus on the plaintiff to prove that there was no custom of adoption by females among the santhals.
21. In any considered opinion where plaintiff asserts that adoption of a child by female is not customary in Santhals and the defendant discharged the onus by adducing evidence to show that adoption of child by female santhal is customary then heavy onus lies on the plaintiff for proving that such custom of adoption of a child is not customary in Santhals.
22. In the case of Mt. Barkar Bibi v. Mohd. Amin, AIR 1934 Lahore 325, a Division Bench of Lahore High Court while dealing with the customary law observed:
"We may say at once that the decision of the case has proceeded on entirely erroneous grounds. Even since their Lordships of the Privy Council have decided AIR 1917 PC 181, the law has been very clear that when a person asserts that he is governed by custom it is incumbent upon him to prove that he is so governed and further to prove what that custom is. There is no uniform custom applicable to the whole of the Punjab nor has it so far been codified. It is well known that custom differs from place to place and from tribe to tribe and it is also recognized by authority that it may differ from family to family. In words of Robertson, J. In 110 PR 1906 which have been quoted with approval by their Lordships of the Privy Council in AIR 1917 PC 181:
"It is not the spirit of Customary law, nor any theory of custom of deductions from other customs which is to be the rule of decision, but only any custom applicable to the parties concerned."
In the case in hand, it was specifically pleaded by the 8 defendant/respondents that according to Santhal customary law there is provision of adoption of child and the defendants asserted that, that has taken place by way of customary provision as well as by way of registration deed. The witnesses of the same community were examined by the defendants who were consistently deposed towards the customary provision that in the santhals community there is provision of adoption of the child.
Both the learned trial court as well as the learned appellate court after recording the concurrent finding about the customary provision of adoption of child in santhals and that finding is based on oral evidence coupled with registered document of adoption. The finding of the facts recorded by the two learned courts cannot and shall not be held to be perverse in law, which cannot be disturbed in second appeal.
For the reasons aforesaid, there is no merit in this second appeal and accordingly, Second Appeal No.198 of 2008 is dismissed.
Pending petition if any also stands dismissed.
( Sanjay Kumar Dwivedi, J.) SI/;