Patna High Court
Gopal Singh Bhumij vs Giribala Bhumij And Ors. on 28 February, 1990
Equivalent citations: AIR1991PAT138, 1990(38)BLJR640, AIR 1991 PATNA 138, 1990 BLJR 1 640
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This first appeal arises out of ajudgment and decree dated 18-2-1984 passed by Shri Ibrar Hassan Subordinate Judge, Chaibasa in Title Suit No. 32 of 1982 whereby and whereunder the said learned Court decreed the suit for partition filed by the plaintiff-respondent.
2. The facts of the case lie in a very narrow campass.
3. The plaintiff filed the aforementioned suit claiming a decree for partition in respect of her half share in the suit property.
The relationship of the parties as alleged in the plaint will appear from the following genealogical table:
Broja Mohan Singh Ghuhiram Singh __________________________________________________________________ | | Umacharan Keshab | | W. Mandodri | | ___________________________________ | | | | (daughter) Ginibala Gopal Bhapen Lera alias Mongli Bhumijani D.1 D.2 D.3 (Plaintiff)
4. According to the plaintiff, she being the daughter of Umacharan Singh has half share in the suit property whereas the defendants together have got half share therein.
5. The plaintiff has asserted that the parties are Hindus and are governed by the Dayabhag School of Hindu Law.
6. The defendants appeared in the aforementioned suit and filed written statement contending inter alia therein that the plaintiff is not the daughter of Umacharan Singh but is daughter of Keshav Singh. It was further alleged that Umacharan died in the month of Paush31, 1341 B. S. Whereas Keshav, father of the parties died in the year 1352 B.S.
7. The defendants have further contended that the parties being members of Scheduled Tribes, they are not governed by Dayabhag School of Hindu Law but are governed by their customary laws in the matter of inheritance and successions. The defendants have further contended that they are not Hindus and according to their family custom, daughters and/or cognates are completely excluded from inheriting the properties either of a male or a female. The defendants have also contended that Mandodri, after the death of her husband married Keshav in Sanghai form and thereafter she began to live with her husband Keshav. Mandodri died in the year 1382 B.S. The defendants further contended that Mandodri had also no interest in the property but during the recent Survey settlement operations, the holding in suit had wrongly been recorded in the names of Mandodri and the defendants.
8. Upon the aforementioned pleadings of the parties, the learned Court below framed the following issues:
1. Has the plaintiff any cause of action or right to sue?
2. Is the suit maintainable in its present form and for the reliefs claimed?
3. Is the suit barred by limitation and adverse possession?
4. Is there unity of title and possession of the parties over the suit properties?
5. Are the parties Hindus and governed by Dayabhag School of Hindu Law or by their Tribal and Custom?
6. Is the plaintiff daughter of Umacharan Singh?
7. Had Ghuiram, grandfather of the defendants excavated a tank and reclaimed a khet in C.S. Plot No. 744 of Makula and had Umacharan ever possessed the said properties?
8. To what relief or reliefs, is the plaintiff entitled?
9. The learned Court below while deciding issue No. 5 held that the parties had become sufficiently Hinduised and were governed by Dayabhag School of Hindu Law.
10. The learned trial Court answered issue No. 6 also in favour of the plaintiff and against the defendants.
11. Mrs. Jaya Roy, the learned counsel appearing on behalf of the appellants submit ted that admittedly the parties are Bhunujs which tribe has been declared to be a Scheduled Tribe under the Scheduled Tribes Order, 1950 and as such, the question of the parties being Hindus or being governed by the Dayabhag School of Hindu Law does not arise.
It has further been submitted by the learned counsel that in view of Section 2(2) of the Hindu Succession Act, 1956, the said Act having no application in relation to the member's of the Scheduled Tribes, the parties must be held to be governed by their customary laws in the matter of inheritance and successions. The learned counsel further submitted that in any event the plaintiff has not been able to show that the parties have become sufficiently Hinduised or the family is governed by Dayabhag School of Hindu Law.
12. The learned counsel further submitted that in any event, as the plaintiff is not the daughter of Umacharan, the question of her suing for partition of the suit properties claiming half share therein, does not arise.
13. Mr. Naresh Prasad, the learned counsel appearing on behalf of the plaintiff respondent, on the,other hand, submitted that the plaintiff has been able to prove that the parties were sufficiently Hinduised and are governed by the Dayabhag School of Hindu Law in the matter of inheritance and succession. The learned counsel further submitted that from various documents brought on record, it has been proved that Mandodri was not married to Keshav in Sanghai form and as such she must be held to be the daughter of Umacharan Singh.
14. In view of the rival contentions of the parties, as mentioned hereinbefore, the principal questions which arise for consideration are as follows:
(1) Whether the parties becomes Hinduised and are governed by the Dayabhag School of Hindu Law in the matter of inheritance and successions?
(2) Whether the plaintiff has been able to prove that she is the daughter of Umacharan Singh?
Re-Question No.(1)
15. The learned trial court while deciding issue .No. 5 appears to have mainly relied upon the evidence of P. Ws. 1, 2, 4 and 5 that they are Hindus., He has further relied upon a decision of this Court in Langa Manjhi v. Jaba Majhian reported in 1970 PLJR 573 : (AIR 1971 Pat 185) and on the basis thereof held that as in this case D.W. 1 admitted that the parties speak in Bengali language and the children attend Sarswati Puja in School the plaintiff has been able to prove that the parties have become sufficiently Hinduised and are governed by Dayabhag School of Hindu Law in the matter of inheritance and succession.
16. There cannot be any doubt that it is possible that aboriginals of non-Hindu origin can become sufficiently Hinduised so that in the matter of inheritance and succession they arc prima facie governed by the Hindu Law, except so far as any custom at variance with such law is proved.
Reference in this connection may be made to Chunkku Manjhi v. Bhabani Manjhian reported in AIR 1946 Pat 218.
17. However, the question as to whether the parties are "Hinduised out and out or have 'became' sufficiently Hinduised" are questions of fact. The burden of proof is initially upon the plaintiff to show that the parties have become "Hindus out and out" or "have become sufficiently Hinduised" so as to be governed in the matter of succession and inheritance by any School of Hindu Law.
18. The plaintiff, as noticed hereinbefore, in support of her case, examined four witnesses.
P.W 1 is Koiri Singh who is also Bhumij by caste. He, in para 3 alleged that they follow Dayabhag School of Hindu Law. He further denied that they are Adibasis. However, in para 13 of his cross-examination, he admitted that he is Bhumij by caste and he is Adibasi of that village. He further stated that he did not know as to how many Schools are there under the Hindu Law. He, further admitted that except one judgment, he does not have any other document to show that the parties are governed by the Dayabhag School of Hindu Law. The said judgment was .also not produced.
19. P.W. 2 is Diwakar Singh, who is husband of the plaintiff. He admitted that she was married with the plaintiff in 1951 B.S.
20. In para 3 of his cross-examination, he admitted that Kanyadan ceremony was per-formed by Mandodri and under the Adibasi religion, a widow can perform Kanyadan ceremony. He further admitted that Bhumij's have separate priests commonly known as 'Thakurs'.
He, in para 8 of his cross-examination, further admitted that when he and his brothers partitioned the properties, no share was given to his sisters, as according to him, after a girl is married, she derives an interest only in her husband property.
21. P.W. 14 is the plaintiff herself. In her examination in chief, she alleged that the parties follow Hindu religion. In para 6 of her cross-examination, she admitted that she is Bhumij by caste and Pujas in the village are performed by Laya. She further could not say as to whether there is document showing her father or mother to be belonging to Hindu religion.
22. She admitted that in her community, marriage in Sanghai form is often performed. She further admitted that her husband and his brothers did not give any share to their sisters. She stated that one Sulga Bhumijani got interest in her father's property but she stated that there is no person in the village who can come to court for deposing as to whether any married daughter has inherited her father's property or not.
23. P.W. 5 is one Sadhu Charan Singh. He alleged that he follows Hindu religion. In cross-examination, he admitted that he does not have any document to show that he follows Hindu religion. He, however, admitted that in the record of rights his caste has been mentioned as 'Adibasi Bhumij'. He further admitted that he is resident of Bihar like (sic) Ginibal and Umacharan and in para 5 he further admitted that in his community, even the females plough the fields, He admitted that he came to depose at the instance of the plaintiff.
24. From the statements of the witnesses examined on behalf of the plaintiff, it is, therefore, clear that no evidence worth the name has been brought on record to show that the parties have become "Hinduised out and out" or even were "sufficiently Hinduised".
25. The husband of the plaintiff categorically admitted that in his community the widows perform the Kanyadan. He further admitted that in his community, the married daughters do not get any share.
26. As noticed hereinbefore, P.W. 4 has also admitted that he is Bhumij and he is an aboriginal of the village. P.W. 4 who is plaintiff herself has further admitted that the priests in their community are known as 'Laya (Thalur). She further admitted that in her community, marriage in Sanghai form is a common feature which is not prevalent amongst Hindus.
27. Similarly, P.W. 5 has also admitted that in the Survey Settlement Record of Rights, his caste has been mentioned as Adibasi Bhumij and in his community even the female members of the family plough the field which is evidently not a common feature amongst the Hindus.
28. On the other hand, the defendants examined various witnesses to show that the parties are still governed by their customary laws.
29. D.W. 1 Binod Singh stated that he is Adibasi by religion. In para 3 of his evidence, he stated that marriage in his community are performed in Sanghai form. He also stated that he is an Adibasi Bhumij and the members of the tribe are governed by their customary law. He further stated that according to Adibasi religion, the parties perform Puja of village God, Sarhool Puja etc. He further stated that after marriage, the daughters do not inherit her father's property.
30. It is true, as has been noticed by the learned trial court that he stated that in the School of the village Saraswati Puja is performed and the children go to School on those occasions. However, he stated that in his village or in the neighbouring village, Durga Puja and Kali Pujas are not performed. He further stated that he does not go to school at the time of Saraswati Puja.
31. In para 11, he stated that in his community marriages are not performed by the Brahmin nor at the time of marriage 'Mantras' are recited. He further stated that no Bhumij of his village or the neighbouring villages put on sacred thread.
32. In para 12 of his cross-examination, he stated that amongst the Bhumij, dead body are not cremated but they perform Saradh. He further stated that in his community the dead bodies are buried and if the village is near the river Ganga, the dead bodies are thrown in the river. He further stated that Saradh ceremonies are not performed by Brahmins but only relatives are invited in the Saradh ceremony. In para 13 he stated that no idol is worshipped as village God, From the evidence of the aforementioned witness, it is absolutely clear that the parties have not become "Hinduised out and out" or even have "become sufficiently Hinduised".
33. Similarly, D.W.2 Bahadur Singh stated that amongst the Bhumijs, marriages are performed in Sanghai form. He in para 3 of his evidence stated that he and the parties of the suit are Bhumijs and they are members of the Scheduled Tribes. He denied the assertion of the plaintiff that Bhumijs of the village are governed by the Dayabhag School of Hindu Law. The aforementioned witness also stated that they worship village God and also perform Sarhul Puja, Buruhil Puja etc. He further stated that amongst the Bhumijs, there is no custom of the married daughters getting share in her father's properties. In para 9 of his cross-examination, he stated that in his village Durga Puja and Kali Puja are not performed.
34. D.W.4 is Mohindi Singh. He also stated that Ginibala, Gopal Singh and the witnesses all being Bhumijs are governed by their own customary law. He, in his cross-examination stated that in his village no Durga Puja is performed. He further stated that there is no Shiv temple near his village.
Nothing has been brought out in his cross-examination to discredit this witness.
35. Apart from the aforementioned witness, Gopal Singh one of the defendants appellants examined himself as D.W. 6. He fully supported the case that the parties are governed by their own customary law and they do not follow Hindu religion.
36. In order to prove that the parties have become 'sufficiently Hinduised' and/or 'out and out Hinduised' it was necessary for the plaintiff to show that the family and/ or other Bhumijs of the village and/or neighbouring villages have adopted Hindu religion and have been following all the rites and customs normally followed by Hindus.
37. From the analysis of the aforementioned evidences on record it is evident that there is nothing to show that the parties have 'become sufficiently Hinduised' and/or are governed by Dayabhag School of Hindu Law in the matter of inheritance and succession.
38. P.W. 2 have admitted that his sisters did not get any share in his father's properly which clearly go to show that Dayabhag. School of Hindu Law is not followed by the parties.
39. Had the parties been Hindus or had become sufficiently Hinduised, the dead body would have been cremated and would not have been buried. No Hindu will bury the dead bodies. Further it is evident from the evidence of D. Ws. that marriages in Sanghai form is a common feature amongst the parties and their families which is not followed by the Hindus.
40. Further, the P. Ws. have categorically stated that they wordship village God and perform Sarhul Puja and other Puja of the village which are normally performed by the aboriginals.
41. The learned court below appears to have been swayed away by the facts that the parties speak Bangali and have put their signatures in their depositions in Bengali language.
42. The said fact was hardly relevant for deciding the issue as to whether the parties have 'become sufficiently Hinduised' and are governed by Dayabhag School of Hindu Law in the matter of inheritance and succession.
43. It is admitted by P.Ws. that the parties had all along been residents of Bihar.
Applying the doctrine of T.ex-Loci' it must be held that normally the Hindus of Bihar arc governed by the Mitakshara School of Hindu Law, except in some part of the erstwhile Manbhum district as has been observed in Krittibash Mahton v. Budhan Mahton reported in AIR 1925 Pat 733.
Even in Bengal, a section of the people are governed by Mitakshara School of Hindu Law. Thus the language spoken by the parties, in my opinion, is hardly relevant for, coming to the conclusion as to whether the parties who are aboriginals have become.
Hindus and/or are governed by Dayabhag School of Hindu Law.
44. Taking thus, all the facts and circumstances into consideration, I am of the view that the plaintiff has not been able to prove that the parties are Hindus and are governed in the matter of inheritance and succession by Dayabhag School of Hindu Law.
Re-Question No. (2)
45. Mrs. Jaya Roy, the learned counsel appearing on behalf of the appellant drew my attention to para 10 of the written statements wherein it had been stated that Umacharan died in the year Paush 1341 B.S. i.e. January, 1946.
46. The learned counsel further drew my attention to the fact that P.W. 4, the plaintiff herself stated that she was married 30 years ago and at that time she was aged about 13-14 years. The learned counsel, therefore, submitted that the plaintiff was born in the year 1938 i.e. after the death of Umacharan and in this view of the matter she could not be his daughter. The learned counsel in this connection also drew my attention to the statements of P.W. 2, the plaintiff's husband who also stated that the plaintiff at the time of their marriage, was 15-16 years old.
In my opinion, the discrepancy in the evidence of Ginibani relating to her age at the time of her marriage and the time when marriage was performed, cannot be said to be conclusive.
47. However, the main question which arises for consideration is as to whether Mandodri, after the death of Umacharan married, father of the defendants Keshav or not.
48. The defendant No. I who examined himself as D.W. 6 as also D.Ws. 1, 2 and 4 stated in their evidence that after the death of Umacharan, his widow married Keshav in Sanghai form and Ginibala was born out of the said wedlock.
49. The learned trial Court considered the evidences on record and came to the conclusion that Mandodri did not marry Keshav after the death of her husband.
50. Admittedly, Mandodri died in the year, 1976.
51. On behalf of the plaintiff, voters' list for the year 1975-76 had been produced which were marked as Exts. 4 and 4a, wherein Mandodri had been shown to be the wife of Umacharan Singh. Another voters list Ext. 4/b was brought on record wherein also the name of husband of Mandodri was recorded as Umacharan Singh.
Even in the Revisional Survey Settlement Record of Rights, Mandodri has been described as wife of Umacharan Singh.
52. The plaintiff and her witnesses categorically stated that Mandodri did not marry Kashav in Sanghai form. D.W. 8 stated that Keshav married Mandodri in Sanghai form in 1341 B.S., about one and half month after the death of Umacharan, when his father was about 24 years old and he was about 14-15 years. The difference in age being himself and his father being only 10-12 years, the same cannot be relieved.
53. D.W. 2 alleged that the said marriage took place in the year 1342 B.S. and at that time one of the brothers of Mandodri namely Haldhar was alive but he did not attend the marriage ceremony. D.W. 6, However, contradicted D.W. 2 who stated that at that time, no brother of Mandodri was alive.
D.W. 4 is hearsay witness and as such no reliance can be placed on his evidence.
54. Taking thus, these aspects of the matter into consideration, I am of the view that the learned Court below has rightly come to the conclusion that the defendants having not been able to prove that after her death Mandodri married Keshav in Sanghai form, it must be held that she was the dauthter of Umacharan Singh.
55. In view of my findings aforementioned on point No. 1; it must be held that the plaintiff was not entitled to any decree for partition as she, being not a Hindu governed by Dayabhag School of Hindu Law but being governed by their customary laws, did not inherit the properties of her father or mother.
56. In the result, this appeal is allowed and the judgment and decree passed by the learned court below is set-aside and the plaintiffs suit for partition is dismissed.
However, taking into consideration the facts and circumstances of the case, the parties are directed to bear their own costs throughout.