1. The substantial questions of law formulated and to be answered by this Court in defendants’ second appeal are as under:--
"(i) Whether in view of the bar contained in
sub-section (2) of Section 2 of Hindu Succession Act, the lower appellate Court was justified in applying the
provisions of Hindu Succession Act in the present case?"
"(ii) Whether in view of the admissions made by the plaintiff in paragraph 7 of her testimony, the lower appellate Court was wrong in holding that no custom relating to disentitlement of a female to inheritance of the property existed?"
[For sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court.]
2. The imperative facts required for determination of this second appeal are as under:--
2.1 The following is the genealogy, demonstrating relationship of the parties:--
Laxman (Died) Son of Nakul Halba
Basanti Bai W/o Manbodh (Daughter, died 8-2-1989) Balram Singh (Son) (Died on 26-3-1993 = Butaki Bai (wife)/Def.-1
Sukhbati (Daughter) Plaintiff Daymati
Def. No. 6 Sonmati (Daughter) Def. No. 7 Ashok (Son) Def. 8 Bujlata (Daughter) Def. No. 9
Lata (Daughter) Def. No. 4 Lalita (Daughter) Def. No. 5 Ani
(Son)
Def. 2 Sunil (Son) Def. 3 Geeta (Daughter) Def. No. 10 Sita (Daughter) Def. No. 11
2.2 The suit land mentioned in Schedule-A, 8.37 acres of agriculture land situated at Gram Jojal, Tahsil Jagdalpur, District Bastar, attached with the plaint and suit house situated at Hikmipara, Tahsil Jagdalpur District Bastar, Sheet No. 47, Plot No. 38/1, area 1722 were originally held by late Shri Laxman. Laxman had one son Balram Singh and daughter Basanti Bai.
2.3 After death of Balram Singh and Basanti Bai, the Basanti Bai’s daughter Smt. Sukhbati filed a suit for declaration of title, partition and possession stating inter alia that they are Halba Scheduled Tribes of Bastar and they are governed by their own custom in the matter of succession, which is similar to Mitakshara School of Hindu Law.
2.4 It is further case of plaintiff that after the death of Laxman, Balram Singh got his name recorded in the revenue record, but according to law of succession, prevalent her mother Smt. Basanti Bai also had half share in the suit land and suit house and as such, she and her sisters/brothers along with sons and daughters of Balram Singh are entitled for equal share in the suit property and prayed for decree of declaration of title, partition and possession in her favour.
2.5 The appellants/defendants filed their written statement stating inter alia that parties are Halba Scheduled Tribes of Bastar and as such, the provisions of the Hindu Law, are not applicable to them and as per their custom, applicable daughters are not entitled to get any share in the ancestral property of their father, as such, suit deserves to be dismissed.
2.6 On the pleadings of the parties, the Trial Court framed as many as six issues and answered the said issues as under:--
(Vernacular matter is omitted -- Ed.)
2.7 The Trial Court by its judgment and decree dated 3-2-1997 dismissed the suit of the plaintiff holding that the parties being Halba Scheduled Tribes, are governed by their own custom in matter of inheritance and succession and as per their custom, daughters are not entitled for share in the property of their father.
2.8 The First Appeal preferred by the plaintiff was allowed by the First Appellate Court holding that the daughters are entitled for share in the property of their father, as the defendants have failed to plead and establish any custom, in which, the daughters of Halba Tribes are not entitled for any share in the property of their father.
3. Questioning the legal acceptability and sustainability of the impugned judgment and decree dated 28-4-2000 passed by First Additional District Judge, Bastar at Jagdalpur in Civil Appeal No. 14-A/1997, the defendants No. 1 to 7 filed this second appeal under Section 100 of the C.P.C., in which, substantial questions of law has been formulated as mentioned in opening paragraph of this judgment.
4. Mr. Prafull N. Bharat, learned counsel appearing for the appellants/defendants would submit that First Appellate Court is absolutely unjustified in applying the provision of Hindu Succession Act, 1956 (hereinafter called as ‘Act of 1956’) ignoring the legislative bar engrafted in sub-section (2) of Section 2 of Act of 1956 and would further submit that the First Appellate Court has ignored the admission made by the plaintiff with regard to the custom prevalent among Halba Scheduled Tribes, by which, daughters are not entitled to have any share in their father’s property, therefore, the impugned judgment and decree deserves to be set aside and that of trial Court be restored.
5. Per contra Mr. Ashish Surana, learned counsel appearing for the respondent No. 1/plaintiff would support the impugned judgment and decree and submit that the defendants have failed to plead and establish the customary law prevailing in the Halba Scheduled Tribes and have not placed any material on record to establish that custom, as such, appeal deserves to be dismissed and judgment and decree of the trial Court be affirmed.
6. I have heard learned counsel appearing for the parties and considered their rival sub-missions made therein and perused the records of both the Courts below with utmost circumspection.
Re-substantial question of law No. 1
7. This question of law relates to Section 2 of the Hindu Succession Act, 1956. Section 2 of the Act of 1956 relates to applicability of that Act to certain class of person and runs as under:--
“2. Application of Act.-- (1) This Act applies --
(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashiva, 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 would not have been governed by the 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.
Explanation.-- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:--
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion?
(b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhists, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
"(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 (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs."
8. A careful reading of sub-section (2) of section 2 leaves no manner of doubt that the Act of 1956 would not be applicable to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution of India, unless Central Government by notification in the Official Gazette otherwise directs. It would be appropriate to look into Article 366(25) and Article 342 of the Constitution of India, it states as under:--
“Clause (25) of Article 366.-- “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 Castes for the purposes of this Constitution.
Article 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 of or 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.
9. A list of Scheduled Tribes is contained in Constitution of India Scheduled Tribe Order 1950 as amended w.e.f. 1-11-2000 by virtue of Section 20 of M.P. Reorganization Act, 2000 which provides that on and from the appointed day, the Constitution Scheduled Tribe Order 1950 shall stand amended as directed in 4th Schedule. The Tribe-Halba is mentioned in entry seventeen in relation to Chhattisgarh in above order. It is also not in dispute that the Halba Tribe is a Scheduled Tribe within the meaning of Constitution of India notified by President of India and it is a Scheduled Tribe within the definition of Article 366(25) of the Constitution. Thus, the provisions of Hindu Succession Act, 1956 do not pro-tanto apply to the members of Scheduled Tribe as per Section 2(2) of the Act of 1956, because of non-obstante clause in Section 2(2) of Act of 1956, as the customary law of the Scheduled Tribe has been preserved by the legislature.
10. The Supreme Court in case of Madhu Kishwar and others v. State of Bihar and others, (1996) 5 SCC 125 : (AIR 1996 SC 1864), after noticing sub-section (2) of Section 2 of Act of 1956, held as under:--
“4. ............... “Thus neither the Hindu Succession Act, nor the Indian Succession Act, nor even the Shariat law is applicable to the custom-governed tribals. And custom, as is well recognized, varies from people to people and region to region.”
11. Thus it is held that provisions of Hindu Succession Act, 1956 will not apply to the parties, as they are Halba scheduled tribes, which is scheduled tribe within the meaning of Article 366(25) of the Constitution of India and Central Government has not issued any notification directing otherwise and applying the provisions of Hindu Succession Act to them. This substantial question of law is answered accordingly.
Re-substantial question of law No. 2
12. The determination of the first substantial question of law that provisions of Hindu Succession Act, 1956 shall not apply to the parties to the suit being Halba scheduled tribes. The further question to be considered is whether 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 principles of Hindu Law or still they are governed by their tribal customary law?
13. Undoubtedly, it is possible that aboriginal tribes of non Hindu origin may have become sufficiently Hinduised so that in the matter of succession and inheritance, they are governed by the Hindu law except so far as any custom at variance with Hindu law is proved.
14. It is well settled that no ceremony of purification is pre-requisite of Hinduisation. In the case of Chunku Manjhi and others v. Bhabani Majhan and others, AIR 1946 Pat 218, it has been observed by the Division Bench of the Patna High Court, which runs thus :
"To sum up, the position is that it is possible in law that aborigines of non-Hindu origin can become sufficiently Hinduised so that in matters of inheritance and succession they are prima facie governed by the Hindu law except so far as any custom at variance with such law is proved, that for the purpose of Hinduisation any formal ceremony of conversion is not necessary, that the test as to whether people of non-Hindu origin have become Hindus out and out consists not in their, following the religious rules of the Srutis and Smritis or their completely giving themselves up to Brahmanical rules and rituals but in their acknowledging themselves to be Hindus and, in adopting Hindu social usages, the retention of a few relics of their ante-Hinduism period notwithstanding. In cases where complete Hinduisation is proved, the parties are to be prima facie governed by the rules of the Hindu law, and the burden of proving that any special custom obtained in the community either as a relic of their non-Hindu period or otherwise is upon the party who sets it up."
It has also been observed therein that:
"the question whether a family or a tribe of non-Hindu origin has been so far Hinduised as to attract the provisions of the Hindu law in matters of inheritance and succession, is a mixed question of law and fact."
It has also further been observed that:
"the Hindu Law of Inheritance (Amendment) Act, 1929, applies also to those persons who but for the passing of the Act, would have been subject to the law of Mitakshara. Thus, it applies to Santhals of Chota Nagpur who are Hindus and are governed by the Mitakshara School of Hindu Law in matter of inheritance of succession."
15. In the case of Budhu Majhi and another v. Dukhan Majhi and others, AIR 1956 Pat 123, it has been observed that it is not necessary that the parties must be completely Hinduised, even if, they had been sufficiently Hinduised so as to be governed by Hindu Law of succession, it is enough. It has also been observed that:
"Adoption of Hindu names, employment of priests, performance of pujas, such as Durga Puja, Mansa Puja, Kali Puja etc. offering of pindas, observing of mourning, performance of funeral ceremonies are sufficient proof of a family, aboriginal in origin, having adopted Hinduism in its entirety. The test as to whether people of Hindu origin have become Hindus out and out consists not in their following the religious rules of Srutis and Smritis or their completely giving themselves up to Brahmanical rules and rituals but in their acknowledging themselves to be Hindus and in adopting social usages, the retention of a few relics of their ante Hinduism period notwithstanding. A formal conversion is not a pre-requisite to a person becoming a Hindu."
16. In case of Langa Manjhi and others v. Jaba Manjhain and others, AIR 1971 Pat 185, it has been observed that :
"The term Hindu is not an anthropological one but is used in a theological sense as distinguished from national or racial sense, and, therefore, many persons of aboriginal tribes and origins have been absorbed in the Hindu faith and have come under the sway of Hindu Law."
It has further been observed that:
"Now, the well established position of law is that it is possible that aboriginals of non-Hindu origin can become sufficiently Hinduised so that in matter of inheritance and succession they are prima facie governed by Hindu Law, except so far any custom at variance with such law is proved.........In cases it is established that the parties of non-Hindu origin have been Hinduised, prima facie, they are governed by the rules of Hindu law and the burden of proving that the old custom of that community still exists is upon the party who sets it up....... whether a person is Hinduised completely or otherwise is a question of fact and cannot be gone into in Second Appeal."
17. In this connection the ratio of the case of Dhani Majhi and another v. Ranga Majhi and others, 1999 AIHC 2156, is also referred hereto in which it has been observed that :
"the parties have become Hinduised by efflux of time and they are governed by Hindu law and as such when they become Hindus long before 1926 then they can be said to be governed by the Hindu Succession Act, 1956 also."
18. The Supreme Court in case of Labishwar Manjhi v. Pran Manjhi, (2000) 8 SCC 587, has observed that when evidence disclosed that parties belonging to Santhal Tribe were following customs of Hindus and not of Santhals, provision of Hindu Succession Act would apply to inheritance of property. It has also been observed therein that :
"The finding is that they are following the customs of the Hindus and not of the Santhals. In view of such a clear finding, it is not possible to hold that
sub-section (2) of Section 2 of Hindu Succession Act excludes the present parties from the application of the said Act. Sub-section (2) only excludes members of any Scheduled Tribes, admittedly as per finding recorded in the present case though the parties originally belong to the Santhal Scheduled Tribe they are Hindus and they are following the Hindu traditions. Hence, we have no hesitation to hold that sub-section (2) will not apply to exclude the parties from application of Hindu Succession Act."
19. It, therefore, appears from the ratio of the case referred to above that it is the well recognized principle of law that if a Halba tribe though a Scheduled Tribe if sufficiently Hinduised shall be governed by Hindu Succession Act, 1956 in the matter of succession and inheritance.
20. The burden of proof is initially upon the plaintiff to show that parties have become “sufficiently Hinduised” or “Hindus out and out” so as to be governed in matter of succession and inheritance by any school of Hindu Law and once it is proved, then burden will be shifted to defendants to prove that the parties are still governed by the tribal customary law.
21. The question of law applicable to Hindus being primarily one of personal as distinguished from geographical custom, strong proof is required for establishing that rule of origin has been given in favour of different system of law.
22. The Nagpur High Court in case of Sonabai v. Lakhmibai, AIR 1957 Nagpur 76, noticing and following, the decision of Privy Council reported in (1902) ILR 29 Cal 433 (PC), has held as under :
"10. Strong proof is required for establishing that the law of origin has been given up in favour of a different system of law :
Parbati Kumari Debi v. Jagadis Chunder Dhabal(A)."
23. The Patna High Court in case of Krittibash Mahton and others v. Budhan Mahtani and others, AIR 1925 Pat 733, has held as under :
"In cases relating to inheritance among aboroginals in Manbhum it is always necessary to enquire whether even if Hinduised (slightly, partially, or completely) they have abandoned the tribal custom as to inheritance (usually they have not, even where, as is unusual, Hinduization is complete) and then if they have abandoned the tribal custom what particular school of Hindu Law they have adhered to."
24. The following extracts from “The Tribes and Castes of the Central Province of India”, by R.V. Russell” at page No. 182 would throw light on the origin of Halbas:--
"Halba, Halbi.-- A caste of cultivators and farm servants whose home is the south of the Raipur District and the Kanker and Bastar States; from here small numbers of them have spread to Bhandara and parts of Berar."
(p. 182).
"In view of the information available the most probable theory of the origin of the Halbas is that they were a mixed caste, born of irregular alliances between the Uriya Raj as and their retainers with the women of their household servants and between the different servants themselves."
(p. 187).
"The caste have a particular dialect of then-own, which Dr. Grierson describes as follows:"
"Linguistic evidence also points to the fact that the Halbas are an aboriginal tribe, who have adopted Hinduism and an Aryan language. Their dialect is a curious mixture of Uriya, Chhattisgarhi and Marathi, the propertions varying according to the locality. In Bhandara it is nearly all Marathi but in Bastar it is much more mixed and has some forms which look like Telugu,"
If the home of the Halbas was in the debatable land between Chhattisgarh and the Uriya country to the east and south of the Mahanadi, their dialect might, as Mr. Hira Lal points out, have originated here. They themselves give the ruined but once important city of Sihawa on the banks of the Mahanadi in this tract as that of their first settlement; and Uriya is spoken to the east of Sihawa and Marathi to west, while Chhattisgarhi is the language of the locality itself and of the country extending north and south.
"Subsequently the Halbas served as soldiers in the armies of the Ratanpur kings and their position no doubt considerably improved, so that in Bastar they became an important land-holding caste. Some of these soldiers may have migrated west and taken service under the Gond kings of Chanda, and their descendants may now be represented by the Bhandara, Zamindars, who, however, if this theory be correct, have entirely forgotten their origin. Others took up weaving and have become amalgamated with the Koshti caste in Bhandara and Berar."
(pages 187-188).
25. On the basis of foregoing analysis, the following proposition would emerge:--
(i) that the plaintiffs pleading they have abandoned their law of origin (customary law) has to plead and establish by leading appropriate legal evidence that they have given up their customary succession, and
(ii) to establish further that they have become “Hindus out and out” or “sufficiently Hindus” so as to be governed by in matter of succession and inheritance by any school of Hindu law, and thereafter to prove.
(iii) that they have adhered to any particular school of Hindu law.
26. Having ascertained the legal position, turning back to the facts of the instant case, it would appear that according to the plaintiffs, they belong to Halba tribes of Bastar and in matter of succession, they are governed by their own tribal customs prevalent, among them, which is similar to Mitakshara School of Hindu Law and custom as prevalent is very old, continuous and has a force of law in Halba tribes. The plaintiff in the plaint did not particularize the prevalent tribal custom except stating that those customs are similar to that of Mitakshara school of Hindu law and thereafter, proceeded to claim that she is entitled for 1/10th share in the suit land and suit house.
27. PW-1 Sukhbati Bai/plaintiff has deposed that parties are “Halba-tribes” governed by Hindu Law, as they perform marriage according to Hindu law by taking seven steps before the sacred fire and they worship Hindu Idol. She further deposed that in matter of succession, they are governed by the Hindu law. In cross-examination she deposed that the daughters had no right to get share in property of their father, but by the law made by Government, females/daughter had equal right in the property. She concluded that most of their festivals like Deepawali, Holi and Pola are identical to Hindus, but their some festivals like Nawa Khai, Aayus, Dayari are different from that of Hindus. In the matter of succession, the plaintiff (PW 1) has clearly stated in his deposition as under:--
(Vernacular matter is omitted -- Ed.)
28. PW-2 Bodka is the plaintiff’s star witness, and member of Halba-tribes, he stated that members of Halba tribes -- worship -- Jaharidevi or Tandawardevi and he admitted that he has not given any share to his sister Shambati.
29. Mere fact that they are observing some Hindu festivals and performing marriages as per Hindu Rituals/Rights, not to establish that they have become “Hindus out and out” as strong proof is required for proving that they have given up their customary laws and have become “Hinduised” out and out or “Hinduised sufficiently”.
30. Apart from this, pleading of the plaintiff in this regard is vague as it could be. Plaintiff simply pleaded that she is still governed by her customary law, which are similar to Mitakshara School of Hindu Law. The plaintiff has not pleaded and established her customary law, which are similar to Mitakshara School of Hindu Law.
31. It is well settled law that the customary succession prevalent among the scheduled tribes, are being followed among the tribes in matter of succession and inheritance and they have nearly acquired the status of law. The Supreme Court in case of Madhu Kishwar (supra) minority opinion in paragraph-46 thereof as agreed by their Lordships in majority opinion (kindly see paragraph-5 of report) held as under:--
"46. It would thus be seen that the customs among the Scheduled Tribes, vary from tribe to tribe and region to region, based upon the established practice prevailing in the respective regions and among particular tribes. Therefore, it would be difficult to decide, without acceptable material among each tribe, whether customary succession is valid, certain, ancient and consistent and whether it has acquired the status of law. However, as noticed above, customs are prevalent and are being followed among the tribes in matters of succession and inheritance apart from other customs like marriage, divorce etc. Customs became part of the tribal laws as a guide to their attitude and practice in their social life and not a final definition of law. They are accepted as a set of principles and are being applied when succession is open. They have accordingly nearly acquired the status of law. Except in Meghalaya, through out the country patrilineal succession is being followed according to the unwritten code of customs. Like in Hindu Law, they prefer son to the daughter and in his absence daughter succeeds to the estate as a limited owner. Widows also get only limited estate. More than 80 per cent, of the population is still below poverty line and they did not come on a par with civilized sections of the non-tribals. Under these circumstances, it is not desirable to grant general declaration that the custom of inheritance offends
Articles 14, 15 and 21 of the Constitution. Each case must be examined and decided as and when full facts are placed before the court."
32. Thus, in view of the foregoing discussion, this Court is of the considered opinion that the plaintiff has failed to establish that members of the Halba scheduled tribe, have given up her customary succession and have become “Hindus out and out” or “sufficiently Hinduised” and in the matter of succession, they are governed by any particular school of Hindu law, consequently, the legislative bar enacted under sub-section (2) of Section 2 of Act of 1956 will apply in full force and provision of the Hindu Succession Act, 1956 will not apply to parties to suit i.e. Halba Scheduled Tribes in absence of notification by Central Government applying the provision of Act of 1956 to them.
33. Thus, the First Appellate Court has committed illegality in reversing the finding of the Trial Court by holding that the appellant/defendant No. 1 has failed to establish custom, in which, daughters are not entitled for share in the property of their father. The findings so arrived cannot be sustained.
"34. Resultantly, the impugned judgment and decree is set aside and that of Trial Court is restored and plaintiff’s suit stands dismissed with no order as to costs. A decree be drawn up accordingly."
Appeal allowed.
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