Himachal Pradesh High Court
Bahadur vs Bratiya And Others on 23 June, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 8 of 2003 .
Reserved on: 7.4.2015 Decided on: 23.6.2015 ______________________________________________________ Bahadur. ...Appellant.
Versus
Bratiya and others. ...Respondents.
______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. Anand Sharma, Advocate.
For the Respondents : Mr. C.P. Sood, Advocate.
____________________________________________________________ Justice Rajiv Sharma, Judge.
This Regular Second Appeal is directed against the judgment and decree dated 5.10.2002 rendered by the District Judge, Chamba Division, Chamba in Civil Appeal No. 29 of 2002.
2. "Key facts" necessary for the adjudication of this appeal are that the appellant-plaintiff (herein after referred to as 'plaintiff' for convenience sake) instituted a suit for declaration against the respondents-defendants 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:26:10 :::HCHP 2 (hereinafter referred to as the "defendants" for convenience sake) to the effect that father of plaintiff Rasalu was Gaddi, .
therefore, belonged to Scheduled Tribe community. The parties were governed by custom, according to which, the daughters do not inherit the property of their father and the attestation of mutation No.288 dated 19.2.1987 by the Assistant Collector 2nd Grade, Chamba in favour of the plaintiff and defendants in respect of the land comprising Kitas 16, Khata Khatauni No. 96/124 measuring 39 bighas and 17 biswas to the extent of 1/6th share and the land comprising Khasra Kitas 3, Khata Khatauni No. 97/125 measuring 10 bighas 18 biswas to the extent of 7/98th share and the land comprising Khasra Kitas-10 Khata Khatauni No. 98/126 measuring 12 bighas and 19 biswas to the extent of 14/378th share situated in Mohal Aghar, Pargana Panjla, Tehsil and District Chamba is illegal, null and void and subsequent attestation of mutation No. 371 dated 23.8.1994 in favour of defendant No.1 by defendants No.2 to 5 in the suit land is also illegal, null and void. The suit land was previously owned and possessed by Rasalu, who was Gaddi and father of the plaintiff and defendant No.1. Rasalu being Gaddi belonged to Scheduled Tribe ::: Downloaded on - 15/04/2017 18:26:10 :::HCHP 3 category and after his death, his estate including the suit land was to be inherited by the plaintiff and defendant .
No.1 being sons of Rasalu. There was a custom amongst the Gaddies that the daughters do not inherit the property of their father after his death.
3. The suit was contested by the defendants.
Defendants have admitted that Rasalu was previously owner in possession of the suit land, but it is specifically denied that Rasalu was Gaddi by caste. It is denied that Rasalu was Scheduled Tribe. It is further averred that estate of Rasalu was rightly inherited by the plaintiff and defendants. The mutation has also rightly been attested.
4. Replication was filed by the plaintiffs. Issues were framed by the Senior Sub Judge Chamba on 31.7.1996. He decreed the suit on 20.2.2002 to the extent that defendants No.1 to 5 and their deceased father Rasalu were declared to be belonging to Gaddi community, which was a scheduled Tribe, to which provisions of Hindu Succession Act, in the matter of succession were not applicable and mutation No. 288 dated 19.2.1987 qua the share of deceased Rasalu in the suit land, attested in favour of defendants No. 2 to 5 and mutation No. 371 ::: Downloaded on - 15/04/2017 18:26:10 :::HCHP 4 dated 27.8.1994 attested in favour of defendant No. 1 qua the relinquishment of their shares in the suit land by .
defendants No.2 to 5, was declared to be illegal, null and void. Defendants preferred an appeal before the District Judge. He allowed the same on 5.10.2002. Hence, the present appeal. It was admitted on 1.6.2004 on the following substantial questions of law:
"1. Whether the Learned lower Appellate Court had jurisdiction to hold the custom to be illegal being opposed to public policy, when the same had not been challenged as such by the respondents?
2. Whether the learned Lower Appellate court has erred in placing reliance on Section 3 of the Limitation Act to come to the conclusion that the suit was barred by time?
3. Whether the learned Lower Appellate Court has erred in invoking the provisions of Section 114 (g) of the Indian Evidence Act when the said provision was not at all attracted to the facts of the present case?"
5. Mr. Anand Sharma, learned counsel for the appellants, has supported the judgment dated 20.2.2002 rendered by learned Senior Sub Judge Chamba.
6. Mr. C.P. Sood, learned counsel for defendant No.1 has supported the judgment and decree dated 5.10.2002 rendered by the learned District Judge, Chamba.
::: Downloaded on - 15/04/2017 18:26:10 :::HCHP 57. I have heard the learned counsel for the parties and have gone through the records carefully.
.
8. Since all the substantial questions of law are interlinked, they are being discussed together to avoid repetition of discussion of evidence.
9. PW-1 Bhadur has testified that Rasalu was owner of the suit land. Rasalu had two sons and four daughters. Rasalu was Gaddi by caste. Gaddies are governed by customary law and as per customary law, property devolves upon sons and daughters are not legally entitled to inherit the property as per custom. Plaintiff and defendant No.1 were in possession of the suit land and daughters of Rasalu were residing in village Bharmour.
They were married and they did not remain in possession of the suit land. He did not know whose names the mutation was sanctioned after the death of Rasalu. He has testified that plaintiff and defendant No.1 were the legal heirs of deceased Rasalu. He has come to know about the mutation one year ago.
10. PW-2 Karmo has testified that the parties were known to him. Plaintiff and defendants are Gaddi by caste.
::: Downloaded on - 15/04/2017 18:26:10 :::HCHP 6According to him, the daughters were not entitled for the property of their father.
.
11. DW-1 Bratia has testified that name of his father was Rasalu and father of Rasalu was Bhangasi.
Bhangasi had three sons namely Rasalu, Hushnak and Chand. Defendants were Rajputs by caste. They used to reside in Tehsil Chamba. Rajput daughters legally inherit the property alongwith brothers. The property of Chand devolved upon his daughters and sons, who was his uncle.
He has proved copies of Jamabandis Ext. D1, Ex.D-2, copy of Pariwar Register Ext. D-3, Ext. D-4, copy of Jamabandi Ext. D5, copy of pedigree table Ext. D-6, Ext. D-7, copy of Jamabandi Ext. D8 and copies of mutations Ext. D-9, D-
10, D-11, D-12, D-13, D-14, D-15 and Ext. D-16, and the copies of decisions Ext. D-17 and D-18.
12. DW-2 Hoshiara Ram has testified that the parties were known to him. He was related to them. The parties are Rajputs. According to custom, the daughters are legally entitled to inherit the property amongst Gaddi Rajputs.
13. DW-3 Machlu has deposed that parties are known to him. He is a Gaddi Rajput. According to customs amongst Gaddi Rajputs, daughters are legally entitled to ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 7 inherit the property of their father. Name of his father was Jawahar and after his death, the property devolved upon .
sons and daughters equally. Their custom is old and continuous. He used to reside in Tehsil Chamba.
14. Sub-section (2) of section 2 of the Hindu Succession Act reads is as under:-
" (2) 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 (255) of Article 366 of the Constitution unless the Central government, by notification in the official Gazette, otherwise directs."
15. Clause (1) of Article 342 of the Constitution of India provides that the President may with respect to any State or Union Territory and where it is a State, after consultation with the Governor, by public notification, specify the Tribes or Tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of the Constitution deemed to be Scheduled Tribes in relation to that State or Union Territory as the case may be. According to clause (2), Parliament may, by law, include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any tribe or any tribal community or part of or a group, within any tribe or tribal community but save as a notification issued ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 8 under the said clause shall not be valid by issuing subsequent notifications.
.
16. Clause (25) of Article 366 of the Constitution of India reads as under:
"Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution."
17. Ext. P-8 is the certificate of scheduled tribes issued in favour of the plaintiff. Learned Sub-Judge 1st Class, Chamba vide Ext. PC had framed, inter alia, the following issue:
"Whether the parties to the suit are Gaddies (Scheduled Tribes) and governed by custom in the matter of succession as alleged?
OPP"
18. It was held by the trial Court that the parties were Gaddies and they were governed by custom in the matter of inheritance and in the absence of "will" Smt. Rukko was not entitled to the property of her father.
Defendant Rukko filed an appeal against the judgment and decree dated 25.6.1994 before the District Judge bearing Civil Appeal No. 34 of 1994. The appeal was dismissed by the District Judge on 28.7.1997. The District Judge also held that a married daughter does not inherit the property ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 9 of her father and in the absence of sons; the property goes to the reversioners. Ex.PD is the copy of judgment dated .
28.6.1982 rendered by the Senior Sub Judge, Chamba where issue No.1 was framed to the following effect:
"Whether the parties are Gaddies and there is a custom in them under which widow and daughter do not inherit the property of the deceased husband as also of father? OPP
19. According to the findings of the learned Senior Sub Judge, Chamba, the parties were not governed under Succession Act, but under custom in which daughters do not inherit and widow has only life interest. Similarly, the Senior Sub Judge in Civil Civil No.72/87 decided on 28.4.1989 had framed the following issue:
"Whether Sh. Thelu was Gaddi and governed by custom in the matter of succession as alleged?" OPD
20. Learned Senior Sub Judge gave the findings that in accordance with custom governing the Gaddies, married daughter in the presence of male co-lateral had no right in the estate of her deceased father. According to pedigree table Ex.PF, the parties have been shown as Gaddi Rajput. In Ex.P-2, i.e. copy of Pariwar register, Gaddi Rajput is mentioned. In Ex.P-4 also expression, "Gaddi" has been mentioned. Ex. P-6 is the statement of ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 10 one of the defendant whereby he has admitted that he was Gaddi Rajput. In Ex.PG, a note has been appended qua .
mutation No. 365 [(Drusati Jati) correction of caste]. There is a reference to order dated 18.3.1993 on the basis of which correction of caste has been carried out. Order dated 18.3.1993 is not on record. Similarly, the caste has been changed on the basis of order dated 18.3.1993 in Ex.PK and Ex.PM as well. It is, thus, evident that before 1993, the parties were Rajput and not Gaddi as per Ex.PG, PK and PM. According to Jamabandi for the year 1990-91 Ex.D-1, defendants No.2 to 5 have relinquished their share in favour of defendant No.1. In Pariwar Register Ex.D-3, the caste Rajput has only been mentioned. There is no reference of parties being Gaddi. In pedigree table Ex.D-6 and D-7, expression "Rajput" has been mentioned.
Learned Sub Judge 1st Class in Civil Suit No.40 of 1981, i.e. Ex.D-17, has held that parties were governed by custom in matters of succession and according to their custom prevalent in the area; daughters also succeed to the property of their father. Learned District Judge in Civil Appeal No.10 of 1987/1983 dated 11.11.1987 Ex.D-18 has returned the findings that there was no custom amongst ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 11 the Gaddies which prevented the widow and daughters to succeed to the property of their husband or father as the .
case may be and even if there was any custom, it has not been uniformly followed and there had been serious departure from it.
21. It is not in dispute that the parties are Hindus and they follow Hindu customs and practices.
22. In Mahomed Ibrahim Rowther vs. Shaik Ibrahim Rowther and others, AIR 1922 Privy Council 59, their Lordships have held that customs should be ancient, invariable and established by clear evidence. The Privy Council has held as under:
"In their essential characteristics custom and an election to abide by the law of the old status differ fundamentally as sources of law, still there is no mode of proving this alleged election except by way of inference from actings and conduct that would establish a custom so that, along whatever line this case may be approached, the custom must be established and the burden of proof of this is on the defendants. In India, however, custom plays a large part in modifying the ordinary law and it is now established that there may be a custom at variance even with the rules of Mahomedan Law governing the succession in a particular community of Mahomedans. But the custom must be proved. The essentials of a custom or usage have been repeatedly defined. (45 Cal. 45: 45 I.A.10(P.C.).) followed. It is of special usages modifying the ordinary law of succession that they should be ancient and invariable, and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 12 can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends."
.
23. The Division Bench of Lahore High Court in Ram Narain and another vs. Mst. Har Narinjan Kaur and another, 1924 Lahore 116 has held that where the custom set up by the plaintiffs is most unusual as being opposed both to the Hindu Law and general agricultural custom the burden of proving the alleged special family custom, lies very heavily upon the plaintiffs. The Division Bench has further held that it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable, it is further essential that they should be established so by clear and unambiguous evidence.
24. The Division Bench of Bombay High Court in Sundrabai Hanmantrao Kulkarni and others vs. Hanmant Gurunath Kulkarni and others, AIR 1932 Bombay 398 has held that when a party relies on a custom as establishing an exception to the general law, the burden is upon him to establish the custom.
25. In Effuah Amissah vs. Effauh Krabah and others, AIR 1936 Privy Council 147, their Lordships have ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 13 held that material customs must be proved in the first instance by calling witnesses acquainted with them until .
the particular customs have, by frequent proof in the courts, become so notorious that the courts take judicial notice of them.
26. In the present case, material placed on record does not prove the custom in the Gaddies where the daughters can be deprived of their right in the property.
27. Their Lordships of the Hon'ble Supreme Court in Gokal Chand vs. Parvin Kumari, AIR 1952 SC 231 have laid down the following principles to be kept in view in dealing with questions of customary law:
"1. It should be recognized that many of the agricultural tribes in the Punjab are governed by a variety of customs, which depart from the ordinary rules of Hindu and Muhammadan law, in regard to inheritance and other matters mentioned in S. 5 of the Punjab Laws Act, 1872.
2. In spite of the above, fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must also prove the existence of the custom set up by him, See 'DAYA RAM v. SOHEL SINGH', 110 P. R. 1906 P. 390 at 410: 'ABDUL HUSSEIN KHAN v. BIBI SONA DERO', 45 Ind App 10 (PC).
3. A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 14 to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invaribaility as to show that it has, by common .
consent, been submitted to as the established governing rule of a particular locality. See MT. SUBHANI v. NAWAB', AIR 1941 PC 21 at 32.
4. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Biwaj-i-am or Manual of Customary Law. See 'AHMED KHAN v. MT. CHANNI BIBI', AIR 1925 PC 267 at 271.
5. No statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may, however, be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i- am may be rebutted, if it is shown that if affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. See 'BEG v. ALLAH DITTA', AIR 1916 PC 129 AT 131, 'SALEH MOHAMMAD v. ZAWAR HUSSAIN', AIR 1944 PC 18; 'MT. SUBHANI v. NAWAB', AIR 1941 P C 21 at 25.
6. When the question of custom applicable to an agriculturist is raised, it is open to a party who denies the application of custom the show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists. See' MUHAMMAD HAYAT KHAN v. SANDHE KHAN', 55 P R. 1908 ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 15 P.270 at 274: 'MUZAFFAR' MUHAMMAD v. IMAM DIN', 9 Lah 120 at p. 125.
7. The opinions expressed by the Compiler of a Riwaj-i-am .
or Settlement Officer as a result of his intimate knowledge and investigation of the subject, are entitled to weight which will vary with the circumstances of each case. The only safe rule to be laid down with regard to the weight to be attached to the Complier's remarks is that if they represent his personal opinion or bias and detract from the record of long standing custom, they will not be sufficient to displace the custom, but if they are the result of his inquiry and investigation as to the scope of the applicability of the custom and any special sense in which the exponents of the custom expressed themselves in regard to it, such remarks should be given due weight. See 'NARAIN SINGH v. MT. BASANT KAUR', AIR 1935 Lah 419 at 421, 422; 'MT. CHINTO v.
THEBU', AIR 1935 Lah 985 : 'KHEDAM HUSSAIN v.
MOHAMMED HUSSAIN', AIR 1941 Lah 73 at 79."
28. Their Lordships of the Hon'ble Supreme Court in T. Saraswathi Ammal v. Jagadambal and another, AIR 1953 SC 201 have held that oral evidence as to instances which can be proved by documentary evidence cannot safely be relied upon to establish custom. Their Lordships have held as under:
"............5. Oral evidence as to instances which can be proved by documentary evidence cannot safely be relied upon to establish custom, when no satisfactory explanation for withholding the best kind of evidence is given..............."
29. Their Lordships of the Hon'ble Supreme Court in Ujagar Singh vs. Mst. Jeo, AIR 1959 SC 1041 have held that many customs have been passed into law of land ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 16 and proof of it becomes unnecessary under section 57 (1) of the Evidence Act.
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30. However, in the present case, custom, as noticed hereinabove, has not been recognized consistently by the courts and thus has not passed into law of land.
The plaintiff in this case has failed to prove that the custom prevailing in the area where the parties resided was ancient, invariable and unbroken custom and the same has not been judicially noticed by the court consistently.
31. Learned Single Judge in Indramani Devi and others vs. Raghunath Bhanja Birbar Jagadeb and another, AIR 1961 Orissa 9 has held that burden of proving alleged custom by clear and unambiguous evidence lies on the plaintiff. Learned Single Judge has held as under:
"[5] There is no documentary evidence to prove the terms of the grant made by the plaintiff's father Pitabash, in favour of his younger brother Ramchan-dra. The contesting defendants are admittedly the heirs of Ramchandra and they would, under the ordinary rule of Hindu Law, be entitled to the property unless the special custom (Kulachara) of excluding female heirs in respect of maintenance grants, as alleged by the plaintiff, be held to have been clearly established. Though custom may supersede a rule of Hindu Law, as pointed out by the Privy Council in Ramalakshmi Ammal v. Sivananatha Perumal, 14 Moo Ind. App 570 (586) (PC) :
"It is of the essence of special usages, modifying the ordinary law of succession, that they should be ancient and ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 17 invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of .
their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.
"This principle was reiterated by the Privy Council in Abdul Hussain v. Mst. Bibi Sona Dero, AIR 1917 PC 181 and was again cited with approval in Saraswathi Ammal v. Jagadamba, AIR 1953 SC 201 at p. 205. Thus, the burden had become doubly heavy on the respondent to prove the alleged custom by clear and unambiguous evidence because not only is he the plaintiff in the suit but he also claimed title to the property on the basis of a special custom (Kulachar) against the ordinary rule of Hindu Law."
32. Their Lordships of the Hon'ble Supreme Court in Labishwar Manjhi vs. Pran Manjhi and others, (2000) 8 SCC 587 have held that though the parties belonged to Santhal scheduled tribes but they were Hinduised and they were following the Hindu traditions. Thus, sub-section (2) would not apply to exclude the parties from application of the Hindu Succession Act. The High Court fell into error in recording a finding to the contrary. Their Lordships have held as under:
"[5] The respondent filed second appeal before the High Court challenging the said finding contending that courts below had committed error in recording the finding that Hindu Succession Act will apply. However, the High Court allowed the appeal of the respondent by holding that Hindu Law as it stood prior to enactment of Hindu Succession Act, 1956 would apply, hence the appellant no. 1 inherited the property during her lifetime and ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 18 on her death it would devolve to the agnates of her husband viz. contesting respondent no1. Challenging the said finding, the submission on behalf of the appellant is that the High Court .
committed error in concluding that the parties would be governed by the law as prevailed prior to coming into force of Hindu Succession Act, 1956. The submission is, once finding is recorded by the first Appellant Court and confirmed by the High Court that the parties are Hinduised then they would be governed by the law as is applicable on any Hindu and if that be so the Hindu Succession Act, 1956 would be applicable to the parties. Challenging this submission, learned Counsel for the respondent submits that the parties being tribals by virtue of Sub-section 2 of Section 2, the Hindu Succession Act, 1956 would not be applicable. It excludes the members of any Scheduled Tribes from their application to the said Act. Based on this submission is, even if the parties have Hinduised, the parties being of Santhal tribe, they are following their customary law of Santhal, hence Hindu Succession Act would not be applied. Reliance being placed to the decision of Patna High Court, reported in 1967 (15) Bihar Law Journal 323 (Satish Chandra Brahama v. Bagram Brahma and Anr. ) This decision deals with the case of Scheduled Tribes, namely, Uraon. The court held that Uraon Tribe is a member of Scheduled Tribe within the meaning of Clause 25 of Article 366 of the Constitution of India and by virtue of Sub-section 2 of Section 2 of the Hindu Succession Act, the provision of that Act will not apply to this tribe, consequently Section 14 would also not apply. The said decision further records, the Uraon can change their religion but by changing of the religion alone they do not cease to be Uraon for other purposes. The Court's findings based on various other factors, such as religious functions, marriages, disposal of the dead bodies by cremation or by burying the dead body etc. , has to be tested before such changes.
[6] The question which arises in the present case is, whether the parties who admittedly belong to Santhal tribe are still continuing with their customary tradition or have they after being Hinduised changed their customs to that what is followed by the Hindus. It is in this context when the matter came first ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 19 before the High Court, the High Court remanded the case for decision in this regard. After remand, the first appellate court recorded the findings, that most of the names of their families of .
the parties are Hindu names. Even Public Witness-1 admits in the cross examination that they perform the pindas at the time of death of anybody. Females do not use vermillion on the forehead after the death of their husbands, widows do not wear ornaments. Even Public Witness-2 admits that they perform Shradh ceremonies for 10 days after the death and after marriage, females use vermilion on their foreheads. The finding is that they are following the customs of the Hindus and not of the Santhal's. 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 Scheduled Tribe admittedly as per finding recorded in the present case though the parties originally belong to the Santhal Scheduled Tribe they are Hinduised 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. The High Court fell into error in recording a finding to the contrary. In view of this, the widow of Lakhiram would become the absolute owner by virtue of Section 14 of the said Act, consequently the gift given by her to appellant nos. 2 and 3 were valid gift, hence the suit of respondent no. 1 for setting aside the gift deed and inheritance stand dismissed."
33. Their Lordships of the Hon'ble Supreme Court in Smt. Manshan and others vs. Tej Ram and others, AIR 1980 SC 558 while consideration section 8 read with section 4 of the Hindu Succession Act, 1956 have held that the custom which prevented the daughters from inheriting the property got superseded by the provisions of the Act and hence the heirs of the collateral were no longer entitled ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 20 to succeed to his property. Their Lordships have held as under:
.
"[3] The argument put forward on behalf of the respondents in the High Court with reference to Section 14 of the Hindu Succession Act was wholly misplaced. There was no question of applying either sub-section (1) or sub-sec. (2) of Section 14 of the said Act. Here the simple question which had to be answered was as to who was the heir of Chaudhary under the Hindu Succession Act on the date of his death. The property will revert to him or her. Reading Sections 4 and 8 of the Act together it is clear to us that on the date of death of Chaudhary, in supersession of the prevalent custom, his daughters became the preferential heirs and were entitled to inherit his property. Chaudhary might have remained a life owner according to the custom. But the portion of the custom which prevented the daughters from inheriting got superseded by the provisions of the Act and hence Bhagat Ram's heirs were no longer entitled to succeed to the property of Chaudhary in the year 1957. The effect of the declaratory decree passed in the year 1950, it is plain, was merely to declare that whosoever would be the next reversioner to the estate of Chaudhary at the time of his death would get the property in respect of which the declaratory decree was made and not necessarily the person in whose favour the declaratory decree was passed.
[4] The High Court also seems to have been influenced by the expression 'dying intestate' occurring in Section 8 of the Act, and appears to have taken the view that since Chaudhary had no power to bequeath his ancestral property by a will, Section 8 would not apply and the daughters would not be entitled to claim the property as his reversioners under Section 8. In our opinion this is an entirely erroneous view of the law. Section 8 would apply where a male Hindu dies intestate either not having made any will or having made any invalid will. It squarely covered the case of the respondents."::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 21
34. Their Lordships of the Hon'ble Supreme Court in Velamuri Venkata Sivaprasad (dead) by LRs vs. .
Kothuri Venkateswarlu (Dead) by LRs and others, (2000) 2 SCC 139 have held that in the matter of interpretation of statutes specially relating to womenfolk, due weightage should be given to the constitutional requirement of equality of status, therefore, Hindu Succession Act, 1956 should be interpreted accordingly.
Their Lordships have held as under:
"[12] Undisputably, the Hindu Succession Act, 1956 in particular Section 14 has introduced far reaching changes having due regard to the role and place of womanhood in the country on the basis of the prevailing socio-economic perspective. It is now a well-settled principle of law that legislations having socio-
economic perspective ought to be interpreted with widest possible connotation as otherwise, the intent of the legislature would stand frustrated. Recognition of Rights and protection thereof thus ought to be given its full play for which the particular legislation has been introduced in the Statute Book.
Gender bias is being debated throughout the globe and the basic structure of the Constitution permeates quality of status and thus negates gender bias. Gender equality is one of the basic principles of our Constitution. The endeavour of the law court should thus be to give due weightage to the requirement of the Constitution in the matter of interpretation of statutes wherein specially the women folk would otherwise be involved. The legislation of 1956 therefore, ought to receive an interpretation which would be in consonance with the wishes and desires of framers of our Constitution. We ourselves have given this Constitution to us and as such it is a bounden duty and an obligation to honour the mandate of the Constitution in every sphere and interpretation which would go in consonance ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 22 therewith ought to be had without any departure therefrom. Tulasamma's case, obviously having this in mind decided the issue and attributed the widest possible connotation to the words .
used in Section 14(1) of the Act of 1956. The decision in Tulasamma's case (AIR 1977 SC 1944) from time to time came up for consideration before this Court and the same stands accepted without any variation as noted herein before. One of the latest decisions where Tulasamma's case has been considered, is the decision of this Court in the case of Raghubir Singh v. Gulab Singh (1998) 6 SCC 314 (324) : (1998 AIR SCW 2393 : AIR 1998 SC 2401) wherein the Dr. Justice A. S. Anand, Chief Justice speaking for the Bench in paragraphs 24 and 26 of the Report observed :-
"24. Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of a widow is "a pre-existing right", which existed under the Shastric Hindu Law long before the passing of the 1937 or the 1946 Acts. Those Acts merely recognised the position as was existing under the Shastric Hindu Law and gave it a "statutory" backing. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance.
26. It is by force of Section 14(1) of the Act, that the widow's limited interest gets automatically enlarged into an absolute right notwithstanding any restriction placed under the document or the instrument. So far as sub-section (2) of Section 14 is concerned, it applies to instruments, decrees, awards, gifts etc., which create an independent or a new title in favour of the female for the first time. It has no application to cases where the instrument/document either declares or recognises or confirms her share in the property or her "pre-existing right to maintenance" out of that property. As held in Tulasamma case sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own, without interfering with the operation of Section 14(1) of the Act."::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 23
35. Learned Single Judge of Madhya Pradesh High Court in Lalsai vs. Bodhan Ram and others, AIR 2001 .
Madhya Pradesh 159 has held that the Hindu law as amended from time to time is applicable to member of scheduled tribe of Madhya Pradesh, therefore, even though no notification has been issued by Central Government, yet Hindu Succession Act is applicable to members of uraon community. Learned Single Judge has held as under:
"[4] Having heard the learned counsel for both the sides and having scrutinised the entire records of the Courts below, it is apparent that the said findings of the Courts below are not based on the correct proposition of law. Admittedly, the parties are 'uraon'. The learned counsel for the respondents has drawn my attention on the provisions of S. 2 (2) of the Act, 1956 wherein it has been mentioned that the provisions of the said Act of 1956 shall not apply to the members of any scheduled tribe unless the Central Government by notification in the official gazette, otherwise directs. The contention of the learned counsel for the respondents is that since no notification has yet been issued by the Central Government, the provisions of the Act of 1956 shall not be applicable to the members of the 'Uraon' community. It has been held by this Court in Lachan Kunwar v. Budhwar in second Appeal No. 40 of 1982 (date of judgment 27-8-1987) that the Hindu Law as amended from time to time is applicable on the members of scheduled tribes of M.P. As such the provisions of the Act of 1956 are applicable to the members of scheduled tribe of Madhya Pradesh, though no notification as envisaged in S. 2 (2) of the said Act of 1956 has been issued by the Central Government. Therefore, in my view, the provisions of the Act, 1956 shall be applicable to 'Uraon' community even though no notification as above has so far been issued by the Central Government."::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 24
36. Learned Single Judge of Punjab and Haryana High Court in Smt. Bhago vs. Satbir, AIR 2007 Punjab .
and Haryana 161 has held that when custom is not proved by leading cogent and convincing evidence, opinion expressed by complier of Riwaj-i-am or Settlement Officer in his book on customary law would carry no value.
Learned Single Judge has held as under:
"[23] As far as Riwaj-i-am is concerned, no precedent has been cited by the plaintiff. No instance of unchaste Brahman widow having forfeited her rights in the property of her late husband has been brought on the record by way of evidence. Therefore, Riwaj-i-am described by E. Joseph ICS, Settlement Officer pertaining to question No. 55 stand exactly on the same footing as in hardayal v. Mst. Dakhan, AIR 1953 Punjab 209 and Arma Ram v. Mst. Chameli, AIR 1953 Punjab 211. Riwaj-i-am cannot be said to carry any evidentiary value all by itself, unless it is proved by leading cogent and convincing evidence that the said custom is being followed uninterruptedly by the Brahmans of District Rohtak. The existence of such custom if not sought to be established from any other evidence must be negatived. The report submitted by the Additional Civil judge, Sr. Division, Bahadurgarh carries nowhere as the same is not based on documentary proof so as to establish that a Brahman widow in Rohtak District leading an unchaste life loses her right of inheritance in the estate of her deceased husband. Therefore, no value can be attached to the report as well as to the question and answer No. 5 of the book written by E. Joseph, settlement Officer.
[25] In the absence of any evidence brought on the file it cannot be said that the opinion expressed by the Compiler of riwaj-i-am or Settlement Officer is of any help to the present ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 25 appellant. Therefore, the substantial question of law raised in this appeal remains unproved by the plaintiff/appellant.
[32] I do not find any force in the contention of the .
learned counsel for the appellant for the reasons that the plaintiff/appellant has failed to prove with any instance or precedent on the record the custom that a Brahman widow leading an unchaste life cannot inherit the estate of her deceased husband. Ram Dai had become the full owner of the property after coming into force of the Hindu succession Act, 1956 thus she had a right to will away her property in favour of the defendants."
37. According to PW-1 Bhadur, property devolves upon sons and not on daughters. To the similar effect is the statement of PW-2 Karmo. However, DW-1 Bratia has categorically stated that in Chamba district, the property devolves upon the boys and girls equally. His statement is corroborated by DW-2 Hoshiara Ram and DW-3 Machlu.
The Court has gone through the judgments exhibited by the plaintiff and defendants. In few of the judgments of the Senior Sub Judge and District Judge, it is held that in the community of Gaddi, property devolves only upon the sons and it does not devolve upon the daughters, but in few of the judgments, it is held that property amongst Gaddi community would devolve upon sons and daughters equally. There is no consistency in the judgments cited hereinabove to prove the customs amongst the Gaddies ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 26 that sons alone would inherit the property. The plaintiff has not even placed on record copy of Riwaj-i-aam to .
prove that there is custom prevalent in the Gaddi community that after the death of male collateral, the property devolves upon sons only and not upon daughters.
In the copy of Pariwar register produced by the plaintiff, expression "Rajput Gaddi" has been mentioned. The cast "Rajput Gaddi" has only been changed on the basis of order dated 18.3.1993, as discussed hereinabove. The copy of order dated 18.3.1993 has not been placed on record. It further strengthens the case of the defendants that parties were Rajput and not Gaddi. Thus, there is no illegality in the mutation whereby the property was mutated in favour of daughters of Rasalu vide mutation No. 288 dated 19.2.1987 and thereafter the relinquishment of the proprietary rights in favour of defendant No.1 Bratia by the daughters of Rasalu vide mutation No. 371 dated 23.8.1994. Even if it is hypothetically held that the parties were Gaddi still the plaintiff has failed to prove that there was any custom whereby the girls were excluded from succeeding to the property of their father. Moreover, the ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 27 mutations were attested on 19.2.1987 and 23.8.1994, but the suit has been filed beyond the period of limitation.
.
38. Section 4 of the Hindu Succession Act, 1956 reads as under:
"4. Overriding effect of Act :- (1) Save as otherwise expressly provided in this Act,-(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act."
39. According to the plain language of section 4 of the Hindu Succession Act, 1956, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act. In view of this though there is no conclusive evidence that the custom is prevailing in the Gaddi community that the daughters would have no rights in the property but even if it is hypothetically assumed that this custom does exist, the same would be in derogation of section 4 of the Hindu Succession Act, 1956.
::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 2840. Learned Single Judge of Punjab High Court in Mast. Taro vs. Darshan Singh and others, AIR 1960 .
Punjab 145 has held that by virtue of sections 2 and 4 of the Hindu Succession Act, Punjab Agricultural custom, so far as it was applicable to Hindus, is no longer in force so far as the matters of succession etc. are concerned, which are now governed by the provisions of the Hindu Succession Act. Learned Single Judge has held as under:
"[2] In view of the provisions of the Hindu Succession Act and the further fact that both Mst. Achhari and Mst. Taro are alive, the reversioners have no locus standi to bring the present suit because, whether there be a will or not Mst. Taro is the next heir after the demise of Mst. Achhari and the reversioners do not come in till the entire line of Mst. Taro become extinct. On behalf of the plaintiffs-respondents it was urged in the first instance that the Hindu Succession Act (hereinafter referred to as the Act) does not apply to the Jats who are primarily governed by the Punjab Agricultural custom in mattes of succession.
Section 2 of the Act makes the Act applicable to all persons who are not Muslims, Christians, Parsis or Jews by religion, and, in particular, sub-clause (b) of sub-s. (1) of S. 2 specifically provides that the Act is applicable to Sikhs and it was not denied that the parties either belong to this religion or are otherwise Hindus and "are not Muslims, Christians, Parsis or Jews." Section 4 of the Act makes the provisions of this Act applicable to all persons governed by the Act to the exclusion of "any other law in force immediately before the commencement of this Act." According to sub-clause (a) of sub-s (1) of S. 4, inter alia, "any custom or usage as part of Hindu law in force immediately before the commencement of this Act" ceases to have effect with respect to any matter for which provision is made in this Act.::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 29
Prior to the coming into force of the Act, every person was governed by his personal law, which, in the case of Hindus and Sikhs, was the Hindu law as modified by custom. Thus, custom .
including agricultural custom modified the Hindu law so far as the Hindu Jats were concerned to the extent to which it went counter to the provisions of strict Hindu law. Thus, Punjab agricultural custom must be treated to be part of Hindu law as it was in force in this State. From the date of the enforcement of the Hindu Succession Act, Hindu law, as modified by custom, is no longer applicable, qua matters relating to succession. Sub- clause (b) of sub-s. (1) of S. 4 further makes it clear by providing that "any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."
Agricultural custom is certainly "a law" governing succession amongst Jats. Thus, we have no doubt that by virtue of Ss. 2 and 4 of the Hindu Succession Act, Punjab Agricultural custom, so far as it was applicable to Hindus, is no longer in force so far as the matters of succession etc. are concerned which are now governed by the provisions of the Hindu Succession Act."
41. Their Lordships of the Hon'ble Supreme Court in Punithawalli Ammal vs. Minor Ramalingam and another, AIR 1970 SC 1730 have held that rights conferred on a Hindu female under section 14 (1) of the Act are not restricted or limited by any rule of Hindu Law and the provision makes a clear departure from the Hindu law texts or rules. Their Lordships while interpreting section 14 (1) of the Hindu Marriage Act have held that the full ownership conferred on Hindu female ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 30 by section 14 (1) is not defeated by subsequent adoption by her.
Their Lordships have held as under:
.
"[6] The explanation to the section is not necessary for our present purpose. It was conceded at the Bar that Sellathachi was in possession of the property in dispute on the date the Act came into force. By virtue of the aforesaid provision, she became the full owner of the property on that date. From a plain reading of section 14 (1), it is clear that the estate taken by a Hindu female under that provision is an absolute one and is not defeasible under any circumstance. The ambit of that estate cannot be cut by any text, rule or interpretation of Hindu law. The presumption of continuity of law is only a rule of interpretation. That presumption is inoperative if the language of the concerned statutory provision is plain and unambiguous. The fiction mentioned earlier is abrogated to the extent is conflicts with the rights conferred on a Hindu female under section 14 (1) of the Act. In Sukhram v. Gauri Shankar, (1968) 1 SCR 476 = (AIR 1968 SC 365) this Court held that though a male member of a Hindu family governed by the Benaras School of Hindu law is subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of Hindu Succession Act is not subject to any such restrictions. This Court held in Munna Lal v. Rajkumar, 1962 Supp (3) SCR 418 = (AIR 1962 SC 1493) that by virtue of section 4 of the Act the legislature abrogated the rules of Hindu law on all matters in respect of which there is an express provision in the Act. In our opinion the rights conferred on a Hindu female under section 14 (1) of the Act are not restricted or limited by any rule of Hindu law. The section plainly says that the property possessed by a Hindu female on the date the Act came into force whether acquired before or after the commencement of the Act shall be held by her as full owner thereof. That provision makes a clear departure from the Hindu law texts or rules. Those texts or rules cannot be used for circumventing the plain intendment of the provision.
[7] In our judgment the learned judges of the Madas High Court were not right in limiting the scope of section 14 (1) by ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 31 taking the aid of the fiction mentioned earlier. That in our opinion is wholly impermissible. On the point under consideration the decision of the Bombay High Court in .
Yamunabai v. Ram Maharaj Shreedhar Maharaj (AIR 1960 Bom
463), lays down the law correctly."
42. Their Lordships of the Hon'ble Supreme Court in Smt. Manshan and others vs. Tej Ram and others, AIR 1980 SC 558 have held that the custom which prevented the daughters from inheriting the property got superseded by the provisions of the Act and hence the heirs of the collateral were no longer entitled to succeed to his property. Their Lordships have held as under:
"[3] The argument put forward on behalf of the respondents in the High Court with reference to Section 14 of the Hindu Succession Act was wholly misplaced. There was no question of applying either sub-section (1) or sub-sec. (2) of Section 14 of the said Act. Here the simple question which had to be answered was as to who was the heir of Chaudhary under the Hindu Succession Act on the date of his death. The property will revert to him or her. Reading Sections 4 and 8 of the Act together it is clear to us that on the date of death of Chaudhary, in supersession of the prevalent custom, his daughters became the preferential heirs and were entitled to inherit his property. Chaudhary might have remained a life owner according to the custom. But the portion of the custom which prevented the daughters from inheriting got superseded by the provisions of the Act and hence Bhagat Ram's heirs were no longer entitled to succeed to the property of Chaudhary in the year 1957. The effect of the declaratory decree passed in the year 1950, it is plain, was merely to declare that whosoever would be the next reversioner to the estate of Chaudhary at the time of his death would get the property in respect of which the declaratory decree was made and not ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 32 necessarily the person in whose favour the declaratory decree was passed.
[4] The High Court also seems to have been influenced by .
the expression 'dying intestate' occurring in Section 8 of the Act, and appears to have taken the view that since Chaudhary had no power to bequeath his ancestral property by a will, Section 8 would not apply and the daughters would not be entitled to claim the property as his reversioners under Section 8. In our opinion this is an entirely erroneous view of the law. Section 8 would apply where a male Hindu dies intestate either not having made any will or having made any invalid will. It squarely covered the case of the respondents."
43. The Hindu law generally recognizes three types of customs local custom, class custom and family custom.
In the present case, plaintiff has failed to prove the usages of any type of custom out of three customs conclusively either on the basis of oral or documentary evidence.
44. Article 15 of the Constitution of India prohibit discrimination on the ground of sex. Articles 38, 39 and 46 envisage socio-economic justice to the women and also Preamble to the Constitution. Rule of law should establish uniform pattern in the society. The women have to be advanced socially and economically to bestow upon them dignity. The daughters in a society, who are Hindu, cannot be left and segregated from main stream. They are entitled to equal share in the property. Needless to add that gender discrimination violates fundamental rights.
::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 3345. According to the Gazetteer of India Himachal Pradesh Chamba published on 19.3.1963, the Gaddies are .
divided into four classes, i.e. (i) Brahmans, (ii) Khatris and Rajputs, who regularly wear the sacred thread, (iii) Thakurs and Rathis who, as a rule, do not wear it and (iv) the last class, comprising Kolis, Riharas, Lohars, Badhies, Sipis and Halis, to which last class the title of Gaddi is disputedly applied as inhabitants of the Gaderan. Each class is divided into numerous gotras or exogamous sections.
Thus, the jhunun gotra of the Khatris gives daughters to the Brahmans and the Brahmans of Kukti regularly inter-marry with the other groups. Hindu constitutes about 91% of the population. They follow the Hinduism. According to Himachal Pradesh District Gazetters Kinnaur published on 11.8.1971, out of total population of 40,980, 91% were Hindus, 9% Buddhists and only 27 sikhs. According to Gazetteer of India, Himachal Pradesh Lahul and Spiti published in the year 1975, in Lahul Sub Division, Hinduism is the leading religion and in Spiti it is Buddhism. According to District Gazetteer Kangra District published in the month of March, 1925, 95% of the population is Hindu.
::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 3446. Their Lordships of the Hon'ble Supreme Court in Bala Shankar Maha Shankar Bhattjee and others .
vs. Charity Commissioner, Gujarat State, AIR 1995 SC 167 have held that the historical material contained therein relating to dispute whether temple in question is public or private is evidence under section 45 though not conclusive, but court may consider such evidence in conjunction with other evidence. Their Lordships have held as under:
"[22] The contention of Sri Yogeshwar Prasad that the Asstt.
Charity Commissioner has failed to prove that Kalika Mataji temple is a public trust; contrarily the evidence on records, namely the 'Will' of Bai Diwali, widow of N. Girjashankar, establishes that the temple and its properties were always treated as private properties. It would get fortified and gets corroborated by decrees in Civil Suit No. 439 of 1985, one of the legatees sought to annul the Will in Exhibits 10, 59 and the decree in that behalf. The Civil Suit Nos. 353 of 1993, Ex. 24 and the Civil Suit No. 439 of 1885, Ex. 26 and the Civil Suit Nos. 904 of 1903 and 910 of 1903, Ex. 52 and Ex. 54, Civil Suit No. 912 of 1903, Ex. 55 would establish that the appellant's family had always treated the temple and the lands attached to temple as private properties. It has also been further contended that the entry into the temple was subject to permission and the devotees were not allowed to have Pooja, but have Darshan only. These circumstances have duly been taken into consideration by the District Judge while the High Court had not considered them in proper perspective. We find no force in the contention. It is seen that the Gazette of the Bombay Presidency, Vol. III published in 1879 is admissible under Sec. 35 read with Sec. 81 of the Evidence Act, 1872. The Gazette is admissible being official record evidencing public affairs and the Court may presume their ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 35 contents as genuine. The statement contained therein can be taken into account to discover the historical material contained therein and the facts stated therein is evidence under Sec. 45 .
and the Court may in conjunction with other evidence and circumstances take into consideration in adjudging the dispute in question, though may not be treated as conclusive evidence. The recitals in the Gazette do establish that Kalika Mataji is on the top of the hill. Mahakali temple and Bachra Mataji on the right and left to the Kalika Mataji. During Moughal rule another Syed Sadar Peer was also installed there, but Kalika Mataji was the chief temple. Hollies and Bills are the main worshippers. On full Moon of Chaitra (April) and Dussehra (in the month of October), large number of Hindus of all classes gather there and worship Kalika Mataji, Mahakali, etc. After the downfall of Moughal empire, Marathas took over and His Highness Scindia attached great importance to the temple. One of the devotees in 1700 offered silver doors. The British annexed the territory pursuant to the treaty between Her Majesty's Government of India and His Highness Scindia on the 12th December, 1860. A condition was imposed in the treaty for continued payment of fixed cash grants to all the temples from the Treasury and that British emperors accepted the condition. Regular cash grants of fixed sums were given to all the temples by Scindias and British rulers, as evidenced by Exhibits 27, 28, 29 and 30. The historical statement of noted historian, stated by the High Court, by name M. S. Commissionaria in his Vol. 1 of 1938 Edition corroborates the Gazette on the material particulars, which would establish that the temple was constructed on the top of the hill around 14th century and the people congregate in thousands and worship, as of right, to Kalika Mataji and other deities. R. N. Joglekar's Alienation manual brought up in 1921 in the Chapter 5 Devasthana also corroborates the historical evidence. It is true that Bai Diwali in her Will, Ex. 22 treated the temple and the properties to be private property and bequeathed to her brother and the litigation ensued in that behalf. At that time, as rightly pointed out by the High Court, the concept of public trust and public temple was not very much in vogue. Therefore, the treatment meted out to these properties at that time is not ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 36 conclusive. On the other hand, the fixed cash grants given by the Rulers Scindias and the successor British emperors, the large endowment of lands given to Kalika Mataji temple by the .
devotees do indicate that the temple was treated as public temple. The appropriation of the income and the inter se disputes in that behalf are self-serving evidence without any probative value. Admittedly, at no point of time, the character of the temple was an issue in any civil proceedings. All the lands gifted to the deity stand in the name of the deities, in particular large extent of agricultural lands belong to Kalika Mataji. The entries in Revenue records corroborated it. The Gazette and the historical evidence of the temple would show that the village is the pilgrimage centre. Situation of the temples on the top of the hill away from the village and worshipped by the people of Hindus at large congregated in thousands without any let or hindrance and as of right, devotees are giving their offerings in large sums in discharge of their vows, do establish that it is a public temple. It is true that there is no proof of dedication to the public. It is seen that it was lost in antiquity and no documentary evidence in that behalf is available. Therefore, from the treatment meted out to the temple and aforesaid evidence in our considered view an irresistible inference would be drawn that the temple was dedicated to the Hindu public or section thereof and the public treat the temple as public temple and worship thereat as of right. It is true that there is evidence on record to show that there was board with inscription thereon that "No entry without permission" and that only Darshan was being had and inside pooja was not permitted. But that is only internal regulation arranged for the orderly Darshan and that is not a circumstance to go against the conclusion that it is a public temple. Enjoyment of the properties and non-interference by the public in the management are not sufficient to conclude that the temple is a private temple. It is found by the District Court and the High Court that the appellants are heredity priests and when the public found that they are in the management of the properties, they obviously felt it not expedient to interfere with the management of the temples. It is seen that the High Court considered the evidence placed on record and has drawn the ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 37 necessary conclusions and inferences from the proved facts that Kalika Mataji temple is a public temple. It is a finding of fact. As regard the oral evidence the High Court rightly appreciated the .
evidence and it being a question of fact, we find no error in the assessment of the evidence by the High Court."
47. Their Lordships of the Hon'ble Supreme Court in Mahant Shri Srinivas Ramanuj Das vs. Surjanarayan Das and another, AIR 1967 SC 256 have held that Gazetteer can be consulted on matter of public history and the statements in such Gazetteer can be relied on as providing historical material. Their Lordships have held as under:
"[26] It is urged for the appellant that what is stated in the Gazetteer cannot be treated as evidence. These statements in the Gazetteer are not relied on as evidence of title but as providing historical material and the practice followed by the Math and its head. The Gazetteer can be consulted on matters of public history."
48. Learned Single Judge of Jharkhand High Court in Dhabai Marandi vs. Bibhuti Marandi Lodo Marandi and others, 2009 Law Suit (Jhar) 1485 has held as under:
"13. Section 2 of the Act defines Hindu which is as follows:
2(1)(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person, who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 38 would not have been governed by this Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
.
Clause (c) finds a negative definition of Hindu by excluding Muslims, Christian, Parsi or Jews, meaning thereby that if they are not Christian, Muslim, Jews they are Hindu provided they could not have been governed by Hindu Law or its custom. Section 2(1) of the aforesaid clause do not exclude the scheduled tribes from the definition of Hindu. Section 2(2) only postpones the application of Hindu Succession Act till the notification as required under this provision is issued. This by implication means that S.T. are also Hindues only, the application of Hindu Succession Act is simply contingent to certain notification. A scheduled tribe, pure and simple who is adhering to his custom is to be distinguished from that who has been Hinduised prior to commencement of the Hindu Succession Act and in my view such Hinduised tribal do fall within Section 2(1)(c) of the Act and may be treated as Hindu because there is no proving on the record that such tribals could not have been governed by the Hindu Law. Nothing has been shown that the custom bars the Munda from adopting any form of Hindu Religion."
49. In view of the definite law laid down by their Lordships of the Hon'ble Supreme Court and the judgments of various other courts, provisions of sub-
section (2) of section 2 of Hindu Succession Act, 1956 will not come in the way of inheritance of the property by the daughters belonging to tribal area where Hinduism and Buddhism is followed.
::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 3950. The Division Bench of Patna High Court in Kartik Oraon vs. David Munzni and another, AIR 1964 .
Patna 201 has explained the term "tribe" as under:
".............14 "Tribe" has been defined in Encyclopaedia Britannica, Volume 22, 1961 edition, at page 465, by W. H. R. Rivers as "a social group of a simple kind, the members of which speak a common dialect, have a single government, and act together for such common purposes as "warfare". Other typical characteristics include a common name, a contiguous territory, a relatively uniform culture or way of life and a tradition of common descent. Tribes are usually composed of a number of local communities, e.g., bands, villages or neighbourhoods, and are often aggregated in clusters of a higher order called nations.
The term is seldom applied to societies that have achieved a strictly territorial organization in large states but is usually confined to groups whose unity is based primarily upon a sense of extended kinship ties. It is no longer used for kin groups in the strict sense, such as clans............."
51. Dr. Gupta, Jai Prakash in "The customary laws of the Munda and the Oraon" has defined the tribe as under:
"Tribe in the Dictionary of Anthropology is defined as 'a social group, usually with a definite area, dialect, cultural homogeneity, and unifying social organization. It may include several sub- groups, such as sibs or villages. A tribe ordinarily has a leader and may have a common ancestor, as well as patron deity. The families or small communities making up the tribe are linked through economic, social, religious, family, or blood ties'."
52. Their Lordships of the Hon'ble Supreme Court in Sri Manchegowda etc. vs. State of Karnataka and ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 40 others, AIR 1984 SC 1151 have held that the State consistently with the directive principles of the .
Constitution has made it a policy and very rightly to preserve, protect and promote the interests of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country. Their Lordships have held as under:
"[11] It is no doubt true that before the passing of the present Act any transfer of granted land in breach of the condition relating to prohibition on such transfer would not have the effect of rendering the transfer void and would make any such transfer only voidable. The present Act seeks to introduce a change in the legal position. The prohibition on transfer of granted land had been imposed by law, rules or regulations governing such grant or by the terms of the grant. The relevant provisions imposing such prohibition by rules, regulations and laws have been referred to in the judgment of the High Court. It is quite clear that the condition regarding prohibition of transfer of granted land had been introduced in the interest of the grantees for the purposes of up keep of the grants and for preventing the economically dominant sections of the community from depriving the grantees who belong to the weaker sections of the people of their enjoyment and possession of these lands and for safeguarding their interests against any exploitation by the richer sections in regard to the enjoyment and possession of these lands granted essentially for their benefit. As the Statement of Objects and Reasons indicates, this prohibition on transfer of granted land has not proved to be a sufficiently strong safeguard in the matter of preserving grants in the hands of the grantees belonging to the Scheduled Castes and Scheduled Tribes; and, in violation of the prohibition on transfer of the granted land, transfers of such lands on a large scale to the serious detriment of the interests of these poorer sections of the ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 41 people belonging to the Scheduled Castes and Scheduled Tribes had taken place. In view of this unfortunate experience the Legislature in its wisdom and in pursuance of its declared policy .
of safeguarding, protecting and improving the conditions of these weaker sections of the community. thought it fit to bring about this change in the legal position by providing that any such transfer except in terms of the provisions of the Act will be null and void and not merely voidable. The Legislature no doubt is perfectly competent in pursuance of the aforesaid policy to provide that such transactions will be null and void and not merely voidable. Even under the Contract Act any contract which is opposed to public policy is rendered void. The State, consistently with the directive principles of the Constitution, has made it a policy and very rightly, to preserve, protect and promote the interests of the Scheduled Castes and Scheduled Tribes which by and large form the weaker and poorer sections of the people in our country. This may be said to be the declared policy of the State and the provisions seeking to nullify such transfers is quite in keeping with the policy of the State which may properly be regarded as public policy for rendering social and economic justice to these weaker sections of the society.
[12] In pursuance of this policy, the Legislature is undoubtedly competent to pass all enactment providing that transfers of such granted lands will be void and not merely voidable for properly safeguarding and protecting the interests of the Scheduled Castes and Scheduled Tribes for whose benefit only these lands had been granted. Even in the absence of any such statutory provisions, the transfer of granted lands in contravention of the terms of the grant or in breach of any law, rule or regulation covering such grant will clearly be voidable and the resumption of such granted lands after avoiding the voidable transfers in accordance with law will be permitted. Avoidance of such voidable transfers and resumption of' the granted lands through process of law is bound to take time. Any negligence and delay on the part of the authorities entitled to take action to avoid such transfers through appropriate legal process for resumption of such grant may be further impediments in the matter of avoiding such transfers and resumption of possession ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 42 of the granted lands. Prolonged legal proceedings will undoubtedly be prejudicial to the interests of the members of the Scheduled Castes anti Scheduled Tribes for whose benefit the .
granted lands are intended to be resumed. As transfers of granted lands in contravention of the terms of the grant or any law, regulation or rule governing such grants can be legally avoided and possession of such lands can be recovered through process of law, it must be held that the Legislature for the purpose of avoiding delay and harassthent of protracted litigation and in its object of speedy restoration granted lands to the members of the weaker communities is perfectly competent to make suitable provision for resumption of such granted lands by stipulating in the enactment that transfers of such lands in contravention of the terms of the grant or any regulation, rule or law regulating such grant will be void and providing a suitable procedure consistent with the principles of natural justice for achieving this purpose without recourse to prolonged litigation in Court in the larger interests of benefiting the members of the Scheduled, Castes and Scheduled Tribes."
53. Their Lordships of the Hon'ble Supreme Court in Lingappa Pochanna Appelwar vs. State of Maharashtra and another, (1985) 1 SCC 479 while considering Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 have explained the concept of distributive justice. Their Lordships have held as under:
"[14] Under the scheme of the Constitution, the Scheduled Tribes as a class require special protection against exploitation. The very existence of Scheduled Tribes as a distinctive class and the preservation of their culture and way of life based as it is upon agriculture which is inextricably linked with ownership of land, requires preventing an invasion upon their lands. The impugned Act and similar measures undertaken by different States placing restrictions on transfer of lands by members of the Scheduled ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 43 Castes and Tribes are aimed at the State Policy enshrined in Art. 46 of the Constitution which enjoins that "The State shall promote with special care the educational and economic .
interests of the weaker sections of the people and in particular of the Scheduled Castes and Tribes and shall protect them from social injustice and all forms of exploitation." One has only to look at the artlessness, the total lack of guile, the ignorance and the innocence, the helplessness, the economic and the educational backwardness of the tribals pitted against the artful, usurious, greedy land grabber and exploiter invading the tribal area from outside to realize the urgency of the need for special protection for the tribals if they are to survive and to enjoy the benefits of belonging to the 'Sovereign, Socialist, Secular, Democratic Republic' which has vowed to secure to its citizens 'justice, social, economic and political' 'assuring the dignity of the individual'. The great importance which the Founding Fathers of the Constitution attached to the protection, advancement and prevention of exploitation of tribal people may be gathered from the several provisions of the Constitution. Apart from Art. 14 which, interpreted positively, must promote legislation to protect and further the aspirations of the weak and the oppressed, including the tribals, there are Arts. 15(4) and 16(4) which make special provision for reservation in Government posts and admissions to educational institutions.
Even the Fundamental Rights guaranteed by Art. 19(1)(d) and (e), that is, the right to move freely throughout the territory of India and the right to reside and settle in any part of the territory of India are made expressly subject to reasonable restrictions for the protection of the interests of any Scheduled Tribe. The proviso to Art. 275 specially provides for the payment out of the Consolidated Fund of India as grants in aid of the revenues of a State such capital and recurring sums as may be necessary to meet the cost of developmental schemes for the promotion of the welfare of the Scheduled Tribes in the State. Art. 330 provides for reservation in the House of the People for the Scheduled Tribes. Art. 332 provides for the reservation of seats for the Scheduled Tribes in the Legislative Assemblies of the States. Art. 335 specially directs that the claims of the members ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 44 of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to .
services and posts in connection with the affairs of the Union or of the State. Art. 343(2) empowers the President to specify the tribes or tribal communities or parts of them which shall be deemed to be Scheduled Tribes for the purposes of the Constitution. Arts. 244 and 244A of the Constitution make special provision for the administration and control of the scheduled areas and the scheduled tribes in any State by the application of the Fifth and the Sixth Schedules. Paragraph 3 of the Fifth Schedule particularly enjoins the Governor of each State having scheduled areas to report to the President annually or whenever so required, regarding the administration of the scheduled area in that State, and the executive power of the Union is extended by that paragraph to giving directions to the State as to the administration of the said area. Paragraph 5(2) empowers the Governor to make regulations for the peace and good Government of any area in any State which is for the time being a scheduled area and, in particular, and without prejudice to the generality of the foregoing power, such regulations may (a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area; (b) regulate the allotment of land to members of Scheduled Tribes in such areas; and (c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area. Mention has already been made of Art 46 of the Directive Principle which specially enjoins the State to protect the Scheduled Castes and Tribes from all social injustice and from all forms of exploitation. All these provisions emphasize the particular care and duty required of all the organs of the State to take positive and stern measures for the survival, the protection and the preservation of the integrity and the dignity of the tribals.
[15] The problem of how far and to what extent the law of contract should be used as an instrument of distributive justice has been engaging the attention not only of the Legislatures and ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 45 the Courts but also of scholars. Kronman in his recent article 'Contract Law and Distributive Justice' observes:
"If one believes it is morally acceptable for the State to .
forcibly redistribute wealth from one group to another, the only question that remains is how far the redistribution should be accomplished."
According to learned author, this could be achieved not only by taxation but also by regulatory control of private transactions. He accepts that distributive fairness can only be achieved by taxation or contractual regulation, at some sacrifice in individual liberty.
[20] The legislation is based on the principle of distributive justice. The impugned Act is intended and meant as an instrument for alleviating oppression, redressing bargaining imbalance, cancelling unfair advantages, and generally overseeing and ensuring probity and fair dealing. It seeks to reopen transactions between parties having unequal bargaining power resulting in transfer of title from one to another due to force of circumstances and also seeks to restitute the parties to their original position. Quite recently, this Court in Manchegowda v. State of Karnataka. (1984) 3 SCC 301 : (AIR 1984 SC 1151) upheld the constitutional validity of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. It provided for restoration of lands transferred by members of Scheduled Castes and Tribes where the grant of land was attached with a condition regarding prohibition of transfer of the granted lands. It repelled the contention that Ss. 4 and 5 of the Act which provided for avoidance of transfers were violative of Art. 14, Art. 19(1)(f) and Aft. 31 of the Constitution and observed that any transfer of such lands in violation of the prohibition conferred on the transferee only a defeasible title and therefore the provisions could not be held to be arbitrary, illegal and void."
54. Their Lordships of the Hon'ble Supreme Court in C. Masilamani Mudaliar and others vs. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil and ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 46 others, (1996) 8 SCC 525 have held that section 14 of the Hindu Succession Act should be constructed Harmoniously .
consistent with the constitutional goal of removing gender-
based discrimination and effectuating economic empowerment of Hindu females. Their Lordships have further held that women have right to elimination of gender based discrimination particularly in respect of property so as to attain economic empowerment. This forms part of universal human rights and they have right to equality of status and opportunity which also forms part of the basic structure of the Constitution. The Supreme Court is obliged to effectuate these rights of women. The personal laws inconsistent with the constitutional mandates are void under Article 13 of the Constitution of India. Their Lordships have held as under:
"[15] It is seen that if after the Constitution came into force, the right to equality and dignity of person enshrined in the Preamble of the Constitution, Fundamental Rights and Directive Principles which are a trinity intended to remove discrimination or disability on grounds only of social status or gender, removed the pre-existing impediments that stood in the way of female or weaker segments of the society. In S. R. Bommai v. Union of India, [(1995) 1 SCC (sic)] this Court held that the Preamble is part of the basic structure of the Constitution. Handicaps should be removed only under rule of law to enliven the trinity of justice, equality and liberty with dignity of person. The basic structure permeates equality of status and opportunity. The ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 47 personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be .
consistent with the Constitution lest they became void under Article 13 if they violated fundamental rights. Right to equality is a fundamental right. Parliament, therefore, has enacted Section 14 to remove pre-existing disabilities fastened on the Hindu female limiting her right to property without full ownership thereof. The discrimination is sought to be remedied by Section 14 (1) enlarging the scope of acquisition of the property by a Hindu female appending an explanation with it. [18] Human Rights are derived from the dignity and worth inherent in the human person. Human Rights and fundamental freedom have been reiterated by the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedom are inter-dependent and have mutual reinforcement. The human rights for woman, including girl child are, therefore, inalienable, integral and indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth, culturally, socially and economically. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights.
[20] The Parliament made the Protection of Human Rights act, 1993. Section 2(b) defines human rights means "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution, embodied in the international conventions and enforceable by Courts in India." Thereby the principle embodied in CEDAW and the concomitant right to development became integral parts of the Indian Constitution and the Human Rights Act and became enforceable. Section 12 of Protection of Human Rights Act charges the commission with duty for proper implementation as well as prevention of violation of the human rights and fundamental freedoms.
[19] Article 5(a) of CEDAW to which the Government of India expressed reservation does not stand in its way and in fact ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 48 Article 2 (f) denudes its effect and enjoin to implement Article 2(f) read with its obligation undertaken under Articles 3, a 14 and 15 of the Convention vis-a-vis Articles 1, 3, 6 and 8 of the .
Convention of Right to Development. The directive principles and fundamental rights, though provided the matrix for development of human personality and elimination of discrimination, these conventions add urgently and teeth for immediate implementation. It is, therefore, imperative of the State to eliminate obstacles, prohibit all gender based discriminations as mandated by Articles 14 and 15 of the Constitution of India. By operation of Article 2(f) and other related articles of CEDAW, the State should take all appropriate measures including legislation to modify or abolish gender based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.
[23] Bharat Ratna Dr. B. R. Ambedkar stated, on the floor of the Constituent Assembly that in future both the legislature and the executive should not pay mere lip service to the directive principles but they should be made the bastion of all executive and legislative action. Legislative and executive actions must be conformable to and effectuation of the fundamental rights guaranteed in Part III and the directive principles enshrined in Part IV and the Preamble of the Constitution which constitutes conscience of the Constitution.
Covenants of the United Nation add impetus and urgency to eliminate gender based obstacles and discrimination. Legislative action should be devised suitably to constellate economic empowerment of women in socio-economic restructure for establishing egalitarian social order. Law is an instrument of social change as well as the defender for social change. Article 2(e) of CEDAW enjoins that this Court to breath life into the dry bones of the Constitution, international convictions and the Protection of Human Rights Act and the Act to prevent gender based discrimination and to effectuate right to life including empowerment of economic, social and cultural rights to women."::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 49
55. Their Lordships of the Hon'ble Supreme Court in Papaiah vs. State of Karnataka and others, (1996) .
10 SCC 533 have explained the right to economic justice to members of SCs/Sts/OBCs under Articles 14, 15, 21, 46, 39 (b) and Preamble as under:
"[8] It is seen that Art. 46 of the Constitution, in terms of its Preamble, enjoins upon the State to provide economic justice to the Scheduled Castes, Scheduled Tribes and other weaker Sections of the society and to prevent their exploitation. Under Art. 39(b) of the Constitution, the State is enjoined to distribute its largess, land, to subserve the public good. The right to economic justice to the Scheduled Castes, Scheduled Tribes and other weaker sections is a fundamental right to secure equality of status, opportunity and liberty. Economic justice is a facet of liberty without which equality of status and dignity of person are teasing illusions. In rural India, land provides economic status to the owner. The State, therefore, is under constitutional obligation to ensure to them opportunity giving its largess to the poor to augment their economic position. Assignment of land having been made in furtherance, thereof, any alienation, in its contravention, would be not only in violation of the constitutional policy but also opposed to public policy under S. 23 of the Contract Act. Thereby, any alienation made in violation thereof is void and the purchaser does not get any valid right, title or interest thereunder. It is seen that rule 43 (a) specifically prohibits alienation of assigned land. It does not prescribe any limitation of time as such. However, it is contended that the appellant has obtained land by way of sale in 1958 long before the Act came into force and thereby he perfected his title by adverse possession. We find no force in contention. This Court had considered this question in similar circumstances R. Chandevarappa's case (1995 (5) SCALE 620) and had held thus :
"The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 50 having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant .
came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant."
56. Their Lordships of the Hon'ble Supreme Court in Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and others, (1997) 11 SCC 121 have held that Articles 38, 39 and 46 mandate the State as its economic policy to provide socio-economic justice to minimize inequalities in income and in opportunities and status and it positively charges the State to distribute its largess to the weaker sections of the society envisaged in Article 46 to make socio-economic justice a reality, meaningful and fruitful. Their Lordships have held as under:
"13. Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of the society in an integrated Bharat is the arch ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 51 of the Constitution set down in its Preamble. Arts. 39 and 38 enjoin the State to provide facilities and opportunities. Arts. 38 and 46 of the Constitution enjoin the State to promote welfare of .
the people by securing social and economie justice to the weaker sections of the society to minimise inequalities in income and endeavour to eliminate inequalities in status. In that case, it was held that to bring the Dalits and the Tribes into the mainstream of national life, the State was to provide facilities and opportunities as it is duty of the State to fulfil the basic human and Constitutional rights to residents so as to make the right to life meaningful. In Shantistar Builders v. Narayan Khimalal Totame, 1990(1) SCC 520 : AIR 1990 SC 630, another Bench of three Judges had held that basic needs of man have traditionally been accepted to be three - food, clothing and shelter. The right to life is guaranteed in any civilised society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For an animal, it is the bare protection of the body, for a human being, it has to be a suitable accommodation which would allow him to grow in every aspect - physical, mental and intellectual. The surplus urban- vacant land was directed to be used to provide shelter to the poor. In Olga Tellis case, (supra), the Constitution Bench had considered the right to dweil on pavements or in slums by the indigent and the same was accepted as a part of right to life enshrined under Art. 21; their ejection from the place nearer to their work would be deprivation of their right to livelihood. They will be deprived of their livelihood if they are evicted from their slum and pavement dwellings. Their eviction tantamounts to deprivation of their life. The right to livelihood is a traditional right to life, the easiest way of depriving a person of his right to life would be to deprive him of means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. The deprivation of right to life, therefore, must be consistent with the procedure established by law. In P. G. Gupta v. State of Gujarat, 1995 Supp (2) SCC 182, another ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 52 Bench of three Judges had considered the mandate of human right to shelter and read it into Art. 19(l)(e) and Art. 21 of the Constitution and the Universal Declaration of Human Rights and .
the Convention of Civic, Economie and Cultural Rights and had held that it is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor. The aforesaid principles have been expressly embodied and in-built in our Constitution to secure economie democracy so that everyone has a right to life, liberty and security of the person. Art. 22 of the Declaration of Human Rights envisages that everyone has a right to social security and is entitled to its realisation as the economie, social and cultural rights are indispensable for his dignity and free development of his personality. It would, therefore, be clear that though no person nas a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose, the State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful, effective and fruitful. Right to livelihood is meaningful because no one can live without means of his living, that is the means of livelihood. The deprivation of the right to life in that context would not only denude right of the effective content and meaningfulness but it would make life miserable and impossible to live. It would, therefore, be the duty of the State to provide right to shelter to the poor and indigent weaker sections of the society in fulfilment of the Constitutional objective."
57. Their Lordships of the Hon'ble Supreme Court in Charan Singh etc. vs. State of Punjab and others etc., AIR 1997 SC 1052 have held that socio-economic justice is required to be done to the weaker sections under Articles 38, 39 (b) and 46 of the Constitution of India and ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 53 particularly to scheduled castes and scheduled tribes and to prevent them from social injustice and prevention of all .
forms of exploitation. Their Lordships have held as under:
"[10] It is now settled policy of the Government as enjoined under Art. 46 of the Constitution and the Directive Principles, particularly Arts. 38 and 39(b) and the Preamble of the Consitution that economic and social justice requires to be done to the weaker sections of the society, in particular to the Scheduled Castes and Scheduled Tribes and to prevent them from social injustice and prevention of all forms of exploitation. In the light of that constitutional objective of economic empowerment, the Government have rightly taken the policy to assign the lease to the either to a Co-operative Society composed of the Scheduled Castes or individual members of the Scheduled Tribes members, as the case may be, in accordance with their policy then in vogue at the rate of Rs. 20/- per acre or 90 times the land revenue, whichever is less. Under these circumstances, the appellants having been inducted into posession reclaimed the land and remained in possession after the expiry of the lease, the Government is required to regularise their possession and assign the lands in their possession in accordance with its policy. The appellants, therefore, are directed to make necessary application within four weeks from today to the competent authority and the authorities are directed to regularise their possession imposing necessary conditions for their continuance in possession and enjoyment of the same in the light of the constitutional objective of rendering them socio-economic justice, putting restrictions on sub-letting or selling; all the relevant conditions in that behalf may be imposed so that they remain in possession and enjoy the same to improve their social and economic status as enjoined under the Constitution. The authorities also are directed to dispose of the applications, within a period of two months from the date of the receipt of the same. The appellants shall remain in possession until the regularisation is done and shall enjoy the lands without any sub-letting or alienation thereof."::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 54
58. Their Lordships of the Hon'ble Supreme Court .
in Velamuri Venkata Sivaprasad (Dead) by Lrs. Vs. Kothuri Venkateswarlu (Dead) by Lrs. and others, (2000) 2 SCC 139 have held that socio economic legislation should be interpreted with the widest possible connotation and in the matter of interpretation of statutes specially relating to womenfolk, due weightage should be given to the constitutional requirement of equality of status. Thus, the Hindu Succession Act, 1956 should be interpreted accordingly. Their Lordships have further held that equality of status permeates the basic structure of the Constitution and negates gender bias. Their Lordships have held as under:
"[12] Undisputably, the Hindu Succession Act, 1956 in particular Section 14 has introduced far reaching changes having due regard to the role and place of womanhood in the country on the basis of the prevailing socio-economic perspective. It is now a well-settled principle of law that legislations having socio-
economic perspective ought to be interpreted with widest possible connotation as otherwise, the intent of the legislature would stand frustrated. Recognition of Rights and protection thereof thus ought to be given its full play for which the particular legislation has been introduced in the Statute Book. Gender bias is being debated throughout the globe and the basic structure of the Constitution permeates quality of status and thus negates gender bias. Gender equality is one of the basic principles of our Constitution. The endeavour of the law court ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 55 should thus be to give due weightage to the requirement of the Constitution in the matter of interpretation of statutes wherein specially the women folk would otherwise be involved. The .
legislation of 1956 therefore, ought to receive an interpretation which would be in consonance with the wishes and desires of framers of our Constitution. We ourselves have given this Constitution to us and as such it is a bounden duty and an obligation to honour the mandate of the Constitution in every sphere and interpretation which would go in consonance therewith ought to be had without any departure therefrom. Tulasamma's case, obviously having this in mind decided the issue and attributed the widest possible connotation to the words used in Section 14(1) of the Act of 1956. The decision in Tulasamma's case (AIR 1977 SC 1944) from time to time came up for consideration before this Court and the same stands accepted without any variation as noted herein before. One of the latest decisions where Tulasamma's case has been considered, is the decision of this Court in the case of Raghubir Singh v. Gulab Singh (1998) 6 SCC 314 (324) : (1998 AIR SCW 2393 : AIR 1998 SC 2401) wherein the Dr. Justice A. S. Anand, Chief Justice speaking for the Bench in paragraphs 24 and 26 of the Report observed :-
"24. Accordingly, we hold that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of a widow is "a pre-existing right", which existed under the Shastric Hindu Law long before the passing of the 1937 or the 1946 Acts. Those Acts merely recognised the position as was existing under the Shastric Hindu Law and gave it a "statutory" backing. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance.
26. It is by force of Section 14(1) of the Act, that the widow's limited interest gets automatically enlarged into an absolute right notwithstanding any restriction placed under the document or the instrument. So far as sub-section (2) of Section 14 is concerned, it applies to instruments, decrees, awards, gifts ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 56 etc., which create an independent or a new title in favour of the female for the first time. It has no application to cases where the instrument/document either declares or recognises or confirms .
her share in the property or her "pre-existing right to maintenance" out of that property. As held in Tulasamma case sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own, without interfering with the operation of Section 14(1) of the Act."
[34] It is pertinent to note here that the courts ought always to adopt a construction of the statute which will ensure to the benefit of the society and eschew such a construction which may adversely affect the society. Morality and law cannot but be equated with each other; what is legal is moral and as such morality cannot be differentiated from the law. One School of thought recorded that while it is true that what is legal is moral but the converse is not true. We however, do not dilate on this issue excepting reiterating what is stated herein before in this judgment.
59. Article 51-A (e) of the Constitution of India also commands to protect the women in order to renounce practices derogatory to the dignity of women.
60. Their Lordships of the Hon'ble Supreme Court in State of Kerala and another vs. Cahndramohanan, (2004) 3 SCC 429 have held as under:
"[3] The question which has been raised at the Bar is not free from doubt. The Constitution provides for declarations of certain castes and tribes as Scheduled Castes and Scheduled Tribes in terms of Articles 341 and 342 of the Constitution of India. Article 342 reads as under:
"342. Scheduled Tribes:- (1) The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts or ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 57 of groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
[4] The object of the said provision is to provide right for the purpose of grant of protection to the Scheduled Tribes having regard to the economic and educationally backwardness wherefrom they suffer. For the aforementioned purpose only the President of India has been authorised to issue the notification to parts or groups within the Tribes. It is not in dispute that the Constitution (Scheduled Tribes) Order, 1950 made in terms of the aforementioned provisions is exhaustive. The question which is required to be posed at the outset is what is the Tribes.........."
61. The tribal belts have modernized with the passage of time. They profess Hindu rites and customs.
They do not follow different Gods. Their culture may be different but customs must conform to the constitutional philosophy.
62. Their Lordships of the Hon'ble Supreme Court in Dayaram vs. Sudhir Batham and others, (2012) 1 SCC 333 have held that to declare the law carries with it the power and within limits, the duty to make law when none exists. Directions issued in the exercise of judicial power can fashion modalities out of the existing executive ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 58 apparatus, to ensure that eligible citizens entitled to affirmative action alone derive benefits of such affirmative .
action. The judicial power was exercised to interpret the Constitution as a "living document" and enforce fundamental rights in an area where the will of the elected legislatures have not expressed themselves. Their Lordships have held as under:
"17. The directions issued in Madhuri Patil were towards furtherance of the constitutional rights of scheduled castes/scheduled tribes. As the rights in favour of the scheduled castes and scheduled tribes are a part of legitimate and constitutionally accepted affirmative action, the directions given by this Court to ensure that only genuine members of the scheduled castes or scheduled tribes were afforded or extended the benefits, are necessarily inherent to the enforcement of fundamental rights. In giving such directions, this court neither re-wrote the Constitution nor resorted to `judicial legislation'. The Judicial Power was exercised to interpret the Constitution as a `living document' and enforce fundamental rights in an area where the will of the elected legislatures have not expressed themselves.
18. Benjamin Cardozo in his inimitable style said that the power, to declare the law carries with it the power and within limits the duty, to make law when none exists. (Nature of the Judicial Process, page 124). Directions issued in the exercise of Judicial Power can fashion modalities out of existing executive apparatus, to ensure that eligible citizens entitled to affirmative action alone derive benefits of such affirmative action. The directions issued in Madhuri Patil are intrinsic to the fulfillment of fundamental rights of backward classes of citizens and are also intended to preclude denial of fundamental rights to such persons who are truly entitled to affirmative action benefits."::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 59
63. The upshot of the appreciation of the evidence and the law discussed hereinabove is that daughters in the .
tribal areas in the State of Himachal Pradesh shall inherit the property in accordance with the Hindu Succession Act, 1956 and not as per customs and usages in order to prevent the women from social injustice and prevention of all forms of exploitation. The laws must evolve with the times if societies are to progress. It is made clear by way of abundant precaution that the observations made hereinabove only pertain to right to inherit the property by the daughters under the Hindu Succession Act, 1956 and not any other privileges enjoined by the tribal in the tribal areas.
64. All the substantial questions of law are answered accordingly.
65. Learned First Appellate Court has correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgment and decree passed by the first appellate court.
66. In view of the analysis and discussion made hereinabove there is no merit in the present appeal and the ::: Downloaded on - 15/04/2017 18:26:11 :::HCHP 60 same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to .
costs.
(Justice Rajiv Sharma), Judge.
23.6.2015
*awasthi*
r to
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