Patna High Court
Budhu Majhi And Anr. vs Dukhan Majhi And Ors. on 19 July, 1955
Equivalent citations: AIR1956PAT123, 1955(3)BLJR557, AIR 1956 PATNA 123
JUDGMENT Choudhary, J.
1. This appeal by defendants 1 and 2 arises out of a title suit instituted by the plaintiffs-respondents for declaration of their title to and for confirmation of possession, or in the alternative for recovery of possession of lands appertaining to Khata No. 30 lying in Mauza Juradih in the district of Manbhum.
2. The lands in suit admittedly belonged to Majha Majhi whose widow is Chita Mejhan defendant No. 3. The plaintiffs are the agnatic relations of Majha Majhi, being the descendants of the brothers of Langa Majhi, the father of Majha Majhi. The appellants are the purchasers of the inheritance of Majha Majhi from his widow, Chita Mejhan. The plaintiffs' case, stated briefly, so far as is relevant for the purpose of the present appeal, is that the parties being Santals are governed by tribal laws according to which females are absolutely excluded from inheritance, and as such Chita Mejhan, the widow of Majha Majhi, had no interest in the lands in suit, which were inherited by them as being the agnatic relations of Majhi.
Their case is that, according to the tribal Jaws, inheritance of a sonless Santal passes to the agnates to the exclusion of the female relations. It may be noted that Majha had a son Birbal who also died leaving a widow, Mini. This Mini subsequently remarried, and it is not in dispute before me now the lands in suit would pass to Chita if a female is not excluded from inheritance. Since however, Chita sold the lands to the appellants, the plaintiffs considered that a cloud had been thrown on their title and they, therefore, brought the present suit for the" reliefs as stated above.
3. The suit was contested by the appellants who denied that they were governed by the tribal laws of the Santals. Their case was that they had sufficiently been Hinduised and had adopted the Hindu Law in matters of inheritance and succession. They averred that after the death of Birbal, Mini performed her remarriage and consequently the lands in suit were inherited by his mother, Chita Mejhan, who transferred the same to them and that she had full power to make the transfer.
4. The trial court accepted the plea of the appellants and held that the parties had become Hinduised and had adopted the Hindu Law for the purpose of succession. It also gave its finding in favour of the appellants on other points raised in the case with which I am not concerned in the present appeal. The findings on those points have not been challenged before me. The suit was accordingly dismissed.
On appeal by the plaintiffs, the learned Subordinate Judge of Purulia reversed the finding of the trial court on this point and held that the parties were governed by the tribal laws of the Santals according to which the females were excluded from inheritance and that Chita Mejhan, therefore, had no right to make the transfer of the suit lands in favour of the appellants and they did not acquire any right over them by such transfer. He, therefore, decreed the suit of the plaintiffs, and defendants 1 and 2 have come up in second appeal to this Court.
5. There is no dispute that if the parties are governed by the Hindu Law in matters of inheritance and succession, Chita Mejhan inherited the suit lands and she had a right to transfer the same. There is also no dispute that if they are governed by the tribal laws, the inheritance of Majha or Birbal would pass to the plaintiffs and the appellants acquired no title by taking the transfer from Chita. Hence, the question that falls to be decided is as to by which laws the parties are governed in matters of inheritance and succession. Both the parties have adduced evidence to substantiate their respective version of the case.
The question whether the parties, who are of non-Hindu origin, have been sufficiently Hinduised so as to attract, the provisions of the Hindu Law in matters of inheritance and succession is a mixed question of law and fact (Vide, -- 'Chunka Manjhi v. Bhabani Manjhi', AIR 1946 Pat 218 (A) ). I will, therefore, examine the evidence in this case in order to find out whether they have been sufficiently Hinduised so as to be governed by the Hindu Law of inheritance and succession.
6. The tests to be applied for the determination of the question wnether a non-Hindu-tribe has been so Hinduised have been pointed out in the case of -- 'Narendra Narain v. Nagendra Narain', AIR 1929 Cal 577 (B), and they have been quoted with approval by a Bench of this Court in the aforesaid case in AIR 1946 Pat 218 (A). It has been held that adoption of Hindu names, employment of priests, performance of pujas, such as Durga Puja, Mama Puja, Kali Puja, etc. offering of pindas, observing of mourning, performance of funeral ceremonies were sufficient proof of a family, aboriginal in origin, having adopted Hinduism in its entirety.
It has also been held in the aforesaid Bench decision of this Court that the test as to whether people of non-Hindu origin have become Hindus out and out consists not in their following the religious rules of Srutis and Smritis for their completely giving themselves up to Banmanical rules and rituals but in their acknowledging themselves, to be Hindus and in adopting social usages, the retention of a few relics of their ante-Hinduism period notwithstanding.
His Lordship, Ray J. who delivered the judgment of that case, Sir Fazl Ali, C. J., (as he then was having concurred with him. quoted with approval the obsrevation, made in a Bench decision of the Mad as High Court in the case of -- 'Ramayya v. Mrs. Josephine Elizabeth', AIR 1937 Mad 172 (C), that a formal conversion is not a pre-requisite to a person becoming a Hindu, The evidence adduced by the parties has to be examined in the light of the above law as laid down by the judicial pronouncements.
7. The witnesses including the parties have described themselves in their evidence to be Santals by caste. The learned Subordinate Judge has, therefore, held that the parties have not acknowledged themselves to be Hindus. In my view, he was absolutely in error in coming to that conclusion. The statement of the witne seal that they are Santals is not, in my opinion, I inconsistent with their having b en Hindus. I Even in the Bench decision of this Court referred to above, the parties had admitted to be Santals by caste. Even, then, it was held in that case that they had been Hinduised and were governed by the Hindu Law of inheritance and succession.
Ray, J. in that case, also quoted with approval the observation made by the learned Judge who decided the case in AIR 1929 Cal 577 (B), that it is only the Hindus who speak of caste. In this view of the matter, the finding of the learned Subordinate Judge that as the parties and witnesses have regarded themselves as being Santals by caste, they could not be said to have acknowledged themselves to bs Hindus, cannot be supported.
8. One of the tests, as laid down above, is the adoption of Hindu names. I find in this case that the parties, the witnesses and their relations have mostly got Hindu names. According to the evidence adduced on behalf of the appellants, one Chandi is alleged to have performed 'Haritaoje'. This Chandi according to P. W. 1, belongs to his caste. He was cited as a witness by him, but he was not examined, Chandi is a Hindu name. P. W. 2 has stated that the sons of Chandi are named Shivasankar and Balaram, and the son of Turku, P. W. 4, is Ganesh. This Turku is the husband of the sister of plaintiff No. 1, P. W. 3's name is Mansa.
From the evidence of P. W. 3 it appears that there is one Gopi. The name of defendant No. 1, who is the brother of Chita, defendant No. 3, is Budhu and he is son of Bharat. The name of D. W. 3 is Sarban. All these are Hindu names. The learned Subordinate Judge has attached no importance to the Santals having adopted Hindu names, because there are other persons who have got pure Santal names. It appears to me as if the view of the learned Subordinate Judge is that if the Hindu names have to be adopted, each and every Santal must be so named.
I do not think it to be the correct position. The Santais must have Santal names as a matter of course. But when it is found that they are subsequently attempting to adopt Hindu names, the intention on their part may be safely inferred that they want to acknowledge themselves to be Hindus, or, at least, they are attempting to do so. Another test is the performance of Hindu Pujas and observance of Hindu ceremonies. D W. 2 (defendant No. 1) has stated in his evidence that they were governed by the Hindu Law of succession and not by the tribal laws.
His evidence is that if a man died leaving a widow, mother, daughter and agnates, the widow would succeed and then the mother and then the daughter and then the agnates. He has also stated that they had adopted Hindu customs and they worship Shiva, Kali, Mansa and other Hindu deities. They also, according to him, worship cow. He denies that they sacrifice cow or boar on the occasion of Gorai Puja. His further statement is that they perform Sarul Puja and it is Chandi, about whom a reference has already been made, who performs 'Haribole'.
No doubt, in cross-examination he had made certain statements which show that they still retain some of their old relics, such as, Sarul Puja, Jahira Puja, worship of ghosts and use of Handia at the Sradh ceremony. He has also stated when asked in cross-examination that the bride climbs on the shoulder of her Bahnoi at the time of marriage and thus the marriage ceremony is performed. The fact that they still retain some of the relics of their anti-Hinduism period, does not, as laid down in the Bench decision of this Court referred to above, militate against their adoption of Hinduism.
Performance of 'Haribole' is very significant on the question under consideration. According to this witness, Chandi performs 'Haribole'. This Chandi was a witness for the plaintiffs, but for reasons best known to them he was not examined. An adverse inference, therefore, can be drawn against the plaintiffs that he would have supported the version of the appellants if he had been examined. With respect to his evidence regarding Kali Puja, Shiva Puja, Durga Puja and Mansa Puja, he has stated in cross-examination as follows:
"We attend the Moharram ceremony as sight-seers. As we see Moharram as sight-seers, so we see Kali Puja, Shiva Puja, Durga Puja and Mansa Puja."
The learned Subordinate Judge has relied on this passage to hold that the Santals do not actually perform the Pujas of these deities, but they only attend as sight-seers. I think that there has been some confusion in the mind of the witness while making this statement in cross-examination. Reading his evidence as a whole, the position seems to be perfectly clear that they perform the Pujas of these deities. His statement about the performance of these Pujas has also been supported by other witnesses.
D. W. 3 is another Santal who has stated that when a man dies in their community leaving a mother and agnate, the mother inherits her son's property and on the death of the mother, the agnate inherits. He has also stated that they worship Shiva, Kali and Durga, and they perform 'Haribole'. His further evidence is that they, do not sacrifice cows on any occasion, nor do they sacrifice boar on the occasion of Gorai Puja and that they sacrifice goats to Kali. In cross-examination he has stated that on the Kali Puja day they perform Bandna Puja and they go to see the fair held on the occasion of Shiva Puja, Durga Puja and Kali Puja.
Of course, he has also stated that they worship Gorai and Sarul and that there is a Jahira asthan in his village. But, that, as already stated, is not indicative of the fact that they have not become Hinduised. D. W. 4 is Chita Mejhan, defendant No. 3. She has also stated that if a man in their community dies leaving a mother and a brother, in that case the mother inherits his son in preference to his brother even if he was joint.
Her further statement is that they worship Shiva, Kali, Durga and Mansa deities and they perform 'Haribole'. She said that she worships all the Hindu deities. It has been taken in her cross-examination that she did not know how Shiva is worshipped or how Kali Puja is performed, but she said that she did not know about them as she was not a male. What she means is that the manner in which these deities are worshipped is known to the males and not to the females.
There is nothing strange if a Santal lady does not know the form in which these deities are worshipped. D. W. 5 is Muchiram Tanti who is not a Santal. He is a resident of the place where the parties live and he has stated that the Santals of the locality worship Kali and Mansa and perform 'Haribole'. He has also stated that Chandi who performs 'Haribole' has worn Tulsi Mala. His further statement is that Mansa Puja is performed by Pallar Majhi. and Badal Majhi by installing earthen images in their houses and this Pallar Majhi had performed Dharna in village Darda where Shiva Puja is performed.
He has also stated that during the Shiva Puja the Santals become Bhaktas and perform hook swing. In cross-examination it has been, taken from him that though he is not a Santal, he performs Sarul Puja end worship Jahira, and his evidence is that the Hindus also perform Sarul Puja. This shows that the Pujas of Sarul, Jahira and Gorai have so much been acknowledged even by the Hindus that their retention by the Santala cannot be said to be inconsistent with their having adopted Hindu faith.
9. On behalf of the plaintiffs five witnesses have been examined to support their contention that they have not been Hinduised and that in matters of inheritance and succession they are governed by the tribal laws. But the answers that they have given in cross-examination indicate that they are not giving out the truth and they are concealing it for the purpose of supporting their case.
P. W. 1 is plaintiff No. 1 himself. He was examined on 27-1-1949. He stated that they were not Hindus and were not governed by the Hindu Law. He has also stated that they worship spirit and their God is known as Maranghuru. He did not make any statement regarding cow sacrifice. In cross-examination, however, he has stated that he did not know it Chandi Majhi performed 'Haribole', though Me was a witness for him, the bones of dead persons are thrown in rivers Ganges and Damodar, the Brahmins of village Bungiarda act as priests and when a man died in the community, sometimes those Brahmin come and they are given food and money according to capacity. He has also stated that they go to Darda When a festival takes place for worship of Shiva, and, though they do not worship Shiva, they perform dance there.
These statements in cross-examination do clearly show that the Santals of the locality were observing Hindu rites and ceremonies. I have already stated that this witness did not speak about cow sacrifice. Other witnesses on behalf of the plaintiffs were examined on the nest day, and on chat day they come out with a story that they sacrifice cows. P. W. 2 has stated that they sacrifice cow on Sarul Puja occasion, but in cross-examination he has stated that cows are garlanded after two days of Gorai Puja.
This statement belies his previous statement that cows are sacrificed by them. When asked about the performance of 'Haribole' he stated that he could not say whether 'Haribole' was performed in the house of Chandi. He was asked if Turku, P. W. 4, and his wife and Palar and his wife had gone to Ganga Sagar and Gaya, but he denied to have any knowledge of it. It will be presently seen that these people had really gone to Gaya. P. W. 3 has also spoken about sacrifice of cows. He has denied to have ever given charity to Brahmins and has stated that they worship cattle on the occasion of Gorai Puja but the previous witness, P. W. 2, has contradicted him by saying that they do not worship cattle. He has also stated that the villagers including the Brahmins also perform Gorai Puja.
Therefore, according to his evidence also, performance of Gorai or Sarul Puja by the Santals does not militate against their conversion to Hinduism, P. W. 4 has stated that they sacrifice cows while worshipping Maranghuru. But the previous two witnesses, namely, P. Ws. 2 and 3, had said that cows were sacrificed on the occasion of Sarul Puja. This witness, namely, P. W. 4. has admitted that he with his wife and Palar with his wife had gone to Gaya, but he has explained that they had gone to Gaya not for offering Puja, but for treatment.
I think that the explanation is not acceptable. He had gone to Gaya for treatment as he had pain in stomach, but he had not to pay any price for the medicine. I do not think that these persons would go from Purulia to Gaya for treatment of such an ordinary pain. In my opinion, their visit to Gaya must have been in connection with the performance of obsequies according to Hindu rites.
10. From the evidence of the plaintiffs' own witnesses it appears that females are not excluded from inheritance and their version that they are governed by the tribal laws which exclude females from inheritance is belied by their own evidence. Sewana Majhani is the mother of plaintiff No. 4 and lives jointly with him. She has taken a sale deed from Mini Mejhan, the widow of Birbal. The certified copy of this sale deed has been marked as exhibit B2 and it is dated 21-7-1945.
P. W. 1, when asked about it, said that, he heard about the sale deed before the institution of the suit. This witness who is nobody else than plaintiff no. 1 himself has purchased land from Bhagebnudhi, the widow of Bhage and his case is that after the death of Bhage his widow inherited his property and he took a sale deed from her. He has further, stated that Bhage has got his own brother's son. If the females were excluded from inheritance, how could plaintiff No. 1 himself purchase the inheritance of Bhage from his widow, especially in presence of Bhage's own brother's son?
P. W. 2 has also purchased land about four years before he deposed in the case from Medgi Mejhani, the widow of Debi Majhi. This shows that the widow inherited her husband's property after his death. P. W. 4 has admitted that after the death of Birbal defendant No. 3 (the mother of Birbal) was in cultivating possession o his land.
According to this witness, Khudi Mejhani, daughter of Kandru Mejhi, who died sonless, is in cultivating possession of his land though he has got a brother's son. P. W. 5 has stated that if a man dies, his widow will come in possession of the land and after her death agnate will possess it in their caste. The facts stated above leave no room for doubt that females amongst the Santals inherit as heirs and are not excluded from inheritance by any tribal laws.
11. On behalf of the plaintiffs, certified copies of certain judgments were filed to show that the plea that the Santals were Hinduised so as to be governed by the Hindu Law had not been accepted. They are marked as exhibits 2 to 2 (c). Exhibit 2 is the judgment of the trial court in title suit No. 298 of 1916 and is dated 19-2-1917. In that case both the parties had set up different customs of inhertance, and the question whether thev were to be governed by the Hindu Law in matters of succession was not in issue, and, therefore, there is no decision on that point.
Exhibit 2 (a) is the judgment of the trial court in title suit No. 1326 of 1928 which was decided on 20-5-1930 In that case the trial court relied on the retention of Sarul and Jahira Pujas bv the Santals for holding that they had not been Hinduised. The court had also held that it had not been established that the Santals had been converted to Hinduism. But neither of these two facts as already held by the authorities discussed above, militates against their having adopted Hinduism. Exhibit 2(b) is a judgment in title suit No. 567/104 of 1929/30 decided on the 21st of July, 1930.
The court there decided against the adoption of Hinduism because it found that the Santals had still retained some of their old relics and that they had not become completely Hinduised. Exhibit 2(c) is the judgment in title appeal No. 31/49/39 of 1936 dated 16-1-1937, in which the contention of the parties being governed by the Hindu Law was over-ruled on the ground that they had still retained some of their old relics.
All these grounds are no longer good for holding against the parties being governed by the Hindu Law in matters of inheritance and succession. It is not necessary that they must be completely Hinduised. Even if they had been sufficiently Hinduised so as to be groverned by the Hindu Law of succession, it is enough.
12. Thus on a consideration of the evidence adduced by the parties as discussed above, I hold that the Santals of the locality, in question have been sufficiently Hinduised and are governed by the Hindu Law in matters of inheritance and succession. The judgment and the decree of the court of appeal below, therefore, cannot stand.
13. The result, therefore, is that the appeal is allowed, the judgment and the decree of the court of appeal below are set aside and those of the trial court restored. The suit of the plaintiffs is dismissed with costs through out.