Haradhan Murmu And Others v. State Of Jharkhand And Others

Anubha Rawat Choudhary, J.:— Heard Mr. Rajeeva Sharma, Senior counsel assisted by Mrs. Rita Kumari, counsel appearing on behalf of the petitioners.

2. Heard Mr. Mayank Mohit Sinha, counsel appearing on behalf of respondent nos. 6, 8, 9, 10, 13 and 14.

3. Heard Mr. Kaustav Panda, counsel appearing on behalf of respondent-State.

4. This writ petition has been filed for the following reliefs:—

A. “The order dated 24.7.2006 (Annexure-5) passed by the learned Commissioner, Santhal Parganas Division, Dumka in RMR No. 87/91-92 upholding the order dated 04.09.1991 (Annexure-4) passed by the Charge Officer No. 1, Dumka in RER No. 9/1988, whereby the order dated 1.11.1985 (Annexure-3) passed by the Assistant Settlement Officer (Respondent no. 4) in RE Case No. 4/884 and 5/885 of 1985 of Mouza-Bichkore was confirmed.

B. This Hon'ble Court may be pleased to hold and declare that the lands in question inherited by Devla Soren daughter of Mangal Soren (RT) by virtue of her marriage in ‘Gharjamai’ developed on her two sisters (mothers of the petitioners) as Devla Soren died issueless, and further that the lands were gifted to them by their father;”

5. Counsel for the petitioner submits as under:—

i. The property involved in this case is lands of JB No. 41 of Mouza-Bichkore in the District of Dumka which was originally recorded in the name of Mangal Soren and Padum Soren. Mangal Soren had no male issue and had three daughters namely Dewla, Jowa and Singo. Mangal Soren had married his three daughters in ‘Ghar-jamai’ form and all his three daughters have been given equal share in the property of Mangal Soren and they were cultivating the land separately.

ii. During his life time, Mangal Soren applied for granting permission for making gift of his share of property to all the three daughters. Initially petition dated 19.11.1960 was filed wherein in was clearly mentioned that Mangal Soren had married all his three daughters in Ghar-Jamai form, but in the prayer, there was certain error and accordingly another petition dated 5.5.1961 was filed rectifying the error and prayer was made seeking permission to gift the property to all the three daughters who were married in ghar jamai form. This case was registered as Revenue Misc. Case No. 83/1960-61 and vide order dated 29.06.1961, the Sub Divisional Officer granted permission for gifting his property to his three daughters. Prior to passing the order, Jamabandi raiyats i.e 16 anna raiyats were heard in the matter and there was no objection on their part. However, inspite of permission, Mangal Soren could not execute gift deed in favour of his three daughters and expired, but his three daughters continued to separately possess and cultivate the property. The counsel submits that even rent receipts were separately issued by the state with respective shares to all the three daughters.

iii. Thereafter Devla Soren, the eldest daughter died issueless and specific case of the petitioners is that upon death of Devla Soren, the land of Mangal Soren devolved on two remaining daughters of Mangal Soren i.e. Jowa Soren and Singo Soren who are the mothers of two writ petitioners. He submits that at “Khanpuri” stage of survey, name of all the three daughters of Mangal Soren were entered in the corresponding new Jamabandi no. 21, but the respondents objected against the entry which led to initiation of R.E. Case Nos. 4/884 and 5/885 of the year 1985 in the court of Assistant Settlement Officer who passed the order dated 01.11.1985 against the petitioners. The petitioners filed an application for reversion before the settlement officer and the matter was transferred to the charge officer-I. When the matter came up before the Charge Officer, registered as R.E.R. Case No. 9/1988, the said authority rejected the application vide order dated 04.09.1991. Against this order, the petitioners filed revision being R.M.R. Case No. 87/91-92 before the Commissioner, Santhal Pargana Division, Dumka who vide impugned order dated 24.07.2006 dismissed the revision.

iv. Counsel for the petitioners submits that from perusal of the application which was filed by the recorded tenant namely Mangal Soren as contained in Annexure-1 and Annexure 1/1 of the writ petition, he had clearly indicated that he had given his three daughters in marriage in Ghar jamai form and he had made a request seeking permission to gift his property equally to his three daughters. He submits that pursuant to the said petitions, notices were issued to the 16 Anna Raiyats who represent the entire village community. They did not raise any objection to the petition and prayer made by the Mangal Soren and they submitted that there is custom of gifting the property to the daughters. He submits that this stand of the Jamabandi raiyats’ has been mentioned in the order of permission granted by the Deputy Commissioner which is contained in Annexure-2 to this writ petition. He submits that there was no problem during the life time of eldest daughter and all the three daughters have continued in possession to the extent of their respective share, but after the death of eldest daughter proceeding bearing R.E. Case No. 4/484 of 1985 and 5/885 of 1985 was initiated and agnates of the mother of the petitioners claimed that only the eldest daughter was married in ‘Ghar Jamai’ form of marriage and as per the customs of Santhal Pargana only she was entitled to inherit the entire property. She having died issueless and upon her death, entire property will devolve upon her agnates and not to the other two daughters of the recorded tenant.

v. He submits that while passing the final order passed in the said case being R.E. Case No. 4/484 and 5/885 of 1985 it has been recorded that 16Anna Raiyat had taken a stand that only Devla Soren was accepted in marriage through ‘Ghar Jamai’ form. Although the said authority has taken notice of the fact that rent receipts were being issued separately to all the three daughters of Mangal Soren from 1955-56 up to date, but he observed that issuance of rent receipts cannot be a basis of title and a direction was issued to evict the remaining two sisters i.e the mothers of the writ petitioners from the property. Thereafter R.E.R. Case No. 9/1988 before charge officer-I was initiated and in the said proceeding, while considering the fact as to whether three daughters were taken in marriage in Ghar-Jamai form or not, charge officer based his finding by drawing adverse inference by the fact that Mangal Soren had applied for permission to gift the property to the daughters and if all the three daughters were married through Ghar Jamai form, there was no occasion for him to seek permission to gift the property to his daughters. According to the authority the very act of Mangal Soren to apply for permission gift the property equally to all the three daughters indicates that only Devla Soren was married in ‘Ghar Jamai’ form and therefore she was the only successor of the property and her two sisters (who are mothers of the petitioners) did not inherit any property. The Charge Officer also observed that in view of the aforesaid fact, agnates of Devla Soren became entitled to the property after the death of Devla Soren.

vi. Thereafter revision was filed before the revisional authority and revision was dismissed vide order dated 24.07.2006.

vii. Counsel for the petitioners while assailing the impugned order passed in the revision, submits that Commissioner has given two reasons for rejecting the revision. Firstly, he has held that there is no such Santhal custom of giving all daughters in Ghar Jamai form of marriage; and that there may be more than one Ghar Di Jamai, but Ghar Jamai will not be more than one and also observed that there is wide difference between Ghar Jamai and Ghar Di Jamai. Secondly, the Commissioner observed that recorded tenant had also filed application before the Sub Divisional Officer for permission to gift the half of the land to two of the daughters inter-alia implies that recorded tenant intended to compensate his two daughters who would not have inherited any share in the property because only the eldest daughter was married in Ghar Jamai form of marriage.

viii. Counsel for the petitioners submits that the order passed by the Commissioner is perverse on two grounds.

Firstly, there is no such custom or material on record and there is no such custom, that there can be only one Ghar Jamai. He submits that impugned order has been passed on the assumption that there can be only one ghar jamai.

Secondly, although the gift deed, for which permission was granted, was not executed, but the recorded tenant had himself indicated in his petition that all the three daughters were married in the form of Ghar Jamai and order permitting transfer by gift to the daughters was passed after hearing the parties including 16 Anna Raiyat. The fact about marriage of three daughters in ghar-jamai form as mentioned in the petition itself was never disputed by 16 Anna Raiyat at the time of grant of permission for gift to the three daughters. The counsel submits that subsequently it is not permissible for them to take different stand by merely making a statement that Ghar Jamai form of marriage was only for the eldest daughter. He also submits that authorities have also ignored the fact that property was in the possession of the three daughters of the recorded tenant and rent receipts were also issued since 1955-56 and were paying rent separately to the State.

ix. Counsel for the petitioner has referred to the extract from Gantzer's settlement report which deals with customs of Santhal Tribal law of inheritance. He submits that it has been recorded as back as during the period from 1922-1935 in the said survey report that rules against female succession among Santhals whether Christians or non-Christians are changing owing to the force of public opinion and the rules which have been previously accepted cannot be treated as hard and fast and binding for all time. The change which is occurring is in the direction of ameliorating the condition of women and giving them a more assured footing in the family.

x. He submits that it was also recorded in the said settlement report that it was noticed during the course of revision of settlement operations that the daughters of a deceased Santhal have sometimes been recorded as his heirs not only without opposition from the agnates, but at their request. In such other cases, it appears from the title suit decisions that arbitrators in Santhal cases have found in favour of daughters. It was observed that in dealing with the case of this nature the custom adopted for the particular locality must be carefully considered and after change of custom, if a change in custom has been well established and generally accepted, it will, of course, be treated as the customary law of the locality in mitigation of the harshness of the ancient tribal law. He submits that follow up action to this sequel in the Legislature in the year 1949 clearly included enabling the raiyat to gift the property to his daughter by way of gift.

xi. He submits that the law of inheritance in connection with daughters and even to ghar-Jamai should be treated as part of the customary law of the area. He further submits that changes from the old customary law in connection with inheritance of property by women in Santhal Community has also been taken judicial note by this Hon'ble Court in judgment dated 12th December 2008 passed in Second Appeal No. 292 of 1987(P). He further submits that in the situation of the nature involved in this case, this court should acknowledge the right of inheritance of the property of the three daughters after the death of the recorded tenant and this is not only in furtherance to what has been observed by the Gantzer's Survey Settlement Report, but would be in furtherance of various provisions of the Constitution of India including Articles 13, 14, 15, 21, 38, 39 and 46 and also in furtherance of Viena Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

xii. Counsel for the petitioners refers to the judgment passed the Hon'ble Supreme Court reported in (1996) 5 SCC 125 (Madhu Kishwar v. State of Bihar), and submits that discrimination against women in the matter of inheritance amongst tribes of santhal pargana has been noticed.

6. Counsel appearing on behalf of the private respondents submits that petitioners have lost in all the forums and it has been held that it was only the eldest daughter who was married in ‘Ghar Jamai’ form. The petitioners having lost before the authorities below, there being no perversity or illegality in the impugned orders, the same do not call for any interference. He further submits that the very fact that the recorded tenant had applied for gifting the property itself indicates that he was conscious of the fact that his two younger daughters would not inherit the property after his death as their husbands were not “ghar jamai” but were “ghardi jamai”. He submits that the permission to gift was granted, but such gift was not executed. Accordingly upon death of the eldest daughter married in Ghar Jamai form, the property has to revert back to the agnates as she died issueless and other two daughters cannot inherit the property of the eldest daughter.

7. Counsel appearing on behalf of respondent State submits that the respondent in the counter affidavit has annexed the enquiry report of the Revisional Survey and Settlement Operation of Santhal Pargana, 1922-35 issued by Gantzer's and he submits that there is specific mention in the report that under the Santhal Tribal Law of Inheritance only male can inherit the land. He submits that in order to inherit the property the daughter may be given to marriage in the form of Ghar Jamai and in such circumstances she would be entitled to inherit the property. In the instant case only the eldest daughter has given marriage in Ghar Jamai form and only she had inherit the property and after her death her agnates would be entitled to the entire property as she died issueless.

8. After hearing counsel for the parties and after considering the materials available on record this court finds that admittedly the parties are governed by the law of inheritance relating to Santhals. All the parties have relied upon the Gantzer's Settlement report which relates for the period 1927-35.

9. The relevant extract of the aforesaid Gantzer's Settlement report is as under:—

“Santhal Tribal Law of Inheritance.- “According to Santhal tribal law only males can inherit land. Sons jointly succeed their father. If brothers are co-sharer in a holding and one brother dies without issue, the surviving brothers and the sons of predeceased brothers inherit his share per stirpes. The Hindu and Muhammadan laws of succession do not apply to Santhals. Santhal tribal law is quite definite in not allowing females to inheritance but this law is gradually undergoing a change and the situation created by this change is discussed in a separate paragraph below. According to tribal custom it is permissible for a man with daughters and no sons to take a son-in-law into his house as a ghar-jamai is a formal proceeding leaving no room for doubt as to the father-inlaw's intention and resulting in the ghar-jamai cutting off all connections with his own family as far as his rights to property are concerned and becoming to all intents and purposes the son of his father-in-law. When such adoption has been formally made, the ghar-jamai can succeed as a son and oust other male relatives. It is of importance to note that a ghar-jamai can be adopted only by a deliberate public act in the presence of the village community at the time of the marriage, and that according to tribal law a father-in-law cannot at a later stage convert an ordinary son-in-law into a ghar-jamai. In both cases the bridal party goes from the bride's house to fetch the prospective husband and no dowry (pon) is given, but whereas the ghar-jamai is adopted permanently as a son, a ghardi jamai merely lives and labours in his wife's home for a previously stipulated period which may extend up to five years. He thereby works off the debt due on account of the non-payment of pon. A ghardijamai is not entitled to get anything from his wife's family, but the woman herself is usually given a small present (arpa) annually at the harvest season and this is utilized for setting up her ne home. At the expiry of the stipulated period, the ghardi-jamai is free and may return to his own home with his wife.

When a ghar-jamai has succeeded to his father-in-law's estate the holding has usually been recorded in his sole name. In some cases, at the request of the parties, the wife has been jointly recorded with her husband.

The rules against female succession among Santhals whether Christian or non-Christian are changing owing to the force of public opinion, and the rules which have been previously accepted, cannot be treated as hard and fast and binding for all time. The change which is occurring is in the direction of ameliorating the condition of women and giving them a more assured footing in the family. During the course of the revision of settlement operations the daughters of a deceased Santhal have sometimes been recorded as his heirs not only without opposition from the agnates but at their request. In other cases it appears from title suit decisions, that arbitrators in Santhal cases have found in favour of daughters. This is particularly so in the case of girls who suffer from any physical defects. In dealing with cases of this nature the custom adopted in a particular locality must be carefully considered. It would be unwise to force upon an unwilling litigant a decision in advance of custom. If a change in custom has been well established and generally accepted it will, of course, be treated as the customary law of the locality in mitigation of the harshness of the ancient tribal law.

As a rule we have tried as far as we could legally do so, to record daughters in all cases where not to do so would have involved real hardship, e.g. where the male relations not only want to claim the land but refuse to maintain the girl. Where close male relations, who obviously have a clear right under the law, have been suspected to be likely to desert the girl, we have recorded them, but have also endeavoured to record the girl in the remarks column of the khatian as khorposhdar until death or marriage.

As regards, widows, the entries have had perforce to be even less uniform. There have been not a few cases in which no objection has been raised to be recording of the widow in her own right, and in such cases she has been described as wife of so and so. As in the case of Hindu widows, this entry is intended to indicate that she has inherited the property from her late husband, and that when she dies it will revert to those male relations who would ordinarily have inherited it at once under Santhal law. In other cases the widow has like the daughter been recorded only in the remarks column as a khorposhdar for certain plots sufficient to maintain her, until her death.

To sum up it may be said that where a Santhal woman has been recorded as wife of so and so, she holds a widow's right as if she were a Hindu widow. Where a Santhal woman has been recorded as daughter of so and so, she may be taken to have full rights of inheritance somewhat in the manner of a woman inheriting stridhan property under the Hindu law. The question of succession in such cases is still somewhat in doubt as the system is so new, but there seems little doubt that if she dies issuless, Santhal sentiment would prefer that the property should revert to her nearest male relatives.”

10. From perusal of said report it appears that there is distinction between the ‘Ghar Jamai’ and ‘Ghar Di Jamai’ and the marriage in the form of ‘Ghar Jamai’ amounts to adoption of son in law as son but this is not so in the case of marriage in the form of ‘Ghar di Jamai’. The ‘Ghar Jamai’ is adopted permanently as a son, and ‘Ghar di Jamai’ merely lives and labours in his wife's home for a previously stipulated period which may extend to five years.

11. This court also finds that the Gantzer's report had duly acknowledged the change in the customary law in connection with the inheritance of property by females and the change in the direction to ameliorating the condition of the women and giving them a more assured footing in the family and this was indicated by the fact that during the Revisional Survey and Settlement Operation of Santhal Pargana, it was found that daughters in the Santhal community have sometimes being recorded as heirs not only without opposition from agnates but at the request of the agnates. This shift in the custom regarding matter of inheritance of property by females, particularly daughters when there are no sons of the recorded tenant, was duly acknowledged and it was indicated that in dealing with the cases of this nature, the custom adopted in the particular locality must be carefully considered.

12. This court finds that an application was made by the recorded tenant namely Mangal Soren wherein he had applied for seeking permission to gift his property to his three daughters and clearly stated in his application that he had married his daughters in the form of ‘Ghar Jamai’, meaning thereby that he had adopted all the three son-in-laws as his sons. However in the initial application seeking permission to gift his property, he had stated about marriage of all his three daughters by ghar jamai form but a prayer was made to gift his property to only second and third daughter half share each. This was rectified vide another petition dated 05.05.1961 whereby the mistake in the initial petition was indicated and permission was sought to gift to all the three daughters. Photocopy of certified copy of these two petitions are contained in annexure 1 and 1/1 respectively.

13. The said petitions were taken up and notices were issued to 16 Anna Raiyat representing the village community who appeared and did not object to the prayer made by the said recorded tenant and also submitted that there is custom amongst them to gift properties to daughters.

14. On the one hand 16 Anna Raiyat representing the village community did not object to the statement made by recorded tenant that his three daughters were married in ‘ghar Jamai’ form and on the other hand no objection was ever raised in connection with gift and gift was sought to be supported by referring to customs.

15. Admittedly the permission to gift the properties to the three daughters under section 20 of the aforesaid Act of 1949 was granted by the competent authority vide order dated 29.06.1961 in revenue miscellaneous case no 83 of 1960-61. However the recorded tenant could not execute the gift in favour of his three daughters and expired.

16. This court is of the considered view that the gift in favour of the three daughters having not been executed by the recorded tenant inspite of permission granted under section 20 of the aforesaid Act of 1949, the rights of the three daughters will be governed by status of their respective husbands and/or their status as per the customary law amongst Santhals as has been noticed in aforesaid Gantzer's Settlement report.

17. This court finds that the recorded tenant in his application seeking permission to gift the properties to his three daughters clearly mentioned that his three daughters were married in ghar jamai form of marriage and this stand of the recorded tenant was never objected to by the village community, rather the permission to gift the properties to the three daughters was supported by them by citing custom to gift property to daughters.

18. This court finds that there is no dispute that husband of the daughter married in ghar jamai form of marriage in entitled to inherit property of father in law as a son. The specific case of the respondents is that only eldest daughter was married in ghar jamai form of marriage and accordingly only the eldest son in law was entitled to inherit the properties of the recorded tenant and the eldest daughter and son in law having died issueless, the properties will be inherited by her agnates and not by the second and third daughters/son in laws of the recorded tenant.

19. The respondents herein have not been able to show any law amongst santhal tribe before the authorities below as well as before this court indicating that there can be only one ‘Ghar Jamai’.

20. This court finds that at the time of application by the recorded tenant seeking permission to gift the property to his three daughters, the recorded tenant had clearly indicated that he has married all his daughters in ghar jamai form of marriage and this stand of the recorded tenant was never controverted by the 16 anna raiyat representing the village community in aforesaid revenue miscellaneous case no 83 of 1960-61. This court is of the considered view that 16 Anna Raiyat representing the village community cannot be permitted to take a different stand in subsequent proceedings after death of the recorded tenant as well as after death of the eldest daughter of the recorded raiyat who admittedly died issueless.

21. However at the stage of khanapuri the name of the three daughters was entered in jamabandi number 21 but at the stage of attestation the respondents (representing the agnates of the daughters of the recorded tenant) objected against the entry resulted in the proceedings being RE Case No. 4/884 and 5/885 of 1985. An objection was raised by the agnates of the daughters of the recorded tenants that after death of the eldest daughter and her husband who died issueless, the property should be recorded in the name of the agnates and not in the name of the other two daughters/son in law on the ground that the other two daughters were never given in ghar jamai form of marriage. The authority vide order dated 1.11.1985, on the basis of the stand taken by 16 Anna Raiyat representing the village community, held that only the eldest daughter was given in ghar jamai form of marriage and not the other two daughters of the recorded tenant. Accordingly the entry made in favour of other two daughters in the record of rights should be deleted and the name of only the eldest daughter (deceased) should be entered. From the perusal of the order passed it appears that the two remaining daughters had also produced the revenue receipts of the year 1956-57 and indicated their possession and right over the property but the same was rejected on the ground that issuance of rent receipts do not confer any right over the property. This order does not refer to the proceedings and order passed in aforesaid revenue miscellaneous case no 83 of 1960-61.

22. Thereafter application for reversion was filed before the settlement officer who transferred the matter to the charge officer-I who registered the case as RER NO. 9 of 1988. The charge officer-I vide impugned order dated 04.09.1991 confirmed the order dated 1.11.1985 passed in RE Case No. 4/884 and 5/885 of 1985 on the ground that if the recorded tenant had married all his three daughters in ghar jamai form of marriage, there was no occasion for him to file application being revenue miscellaneous case no 83 of 1960-61 for the purposes of seeking permission to gift the property to his two daughters. On the basis of this finding the authority held that this by itself proves that only the eldest daughter was married in ghar jamai form of marriage who according to customary law inherits the entire property and not the other two daughters and upon the death of the eldest daughter the property will devolve upon the agnates of the daughters and not upon the other two daughters. The authority further rejected the claim of the other two daughters based on the revenue receipts/rent receipts issued in their favour.

23. This court finds that impugned order dated 04.09.1991 passed in RER No. 9 of 1988 by the charge officer-I is perverse on two points. Firstly, the authority has overlooked the fact that the recorded tenant has applied for permission in case numbered as revenue miscellaneous case no 83 of 1960-61 to gift the property to all his three daughters and had made categorical statement that all of them were married in ghar-jamai form in which 16 Anna Raiyat representing the village community had admittedly appeared and not raised any objection and indicated that there is custom of gifting property to the daughters. The authority has considered only the application contained in annexure 1 to this writ petition where prayer was made only to gift property to two of his daughters although it was specifically stated that all the three daughters were married in ghar jamai form and has over looked the subsequent application contained in annexure 1/1 to this writ petition where prayer was rectified to gift property to all his three daughters.

24. Further the authority concluded that if all the three daughters were married in ghar jamai form there was no requirement to file application seeking permission to gift the property to his daughters as they would have inherited by virtue of such marriage. This finding is also perverse in view of the fact that as per customary law amongst santhals, in case there is no son to inherit the property, the property is inherited by the son in law who is married to the daughter in ghar jamai form and is not inherited by the daughter. Therefore even in case of marriage by ghar jamai form, the recorded tenant, in order to ensure that the property goes to his daughter, will have to execute a gift in her name which can be done only after due permission under section 20. In absence of such gift the property would go to the son in law married in ghar-jamai form and not to the daughter. Accordingly, this court find that merely because an application was filed seeking permission to gift the property to the daughters, no adverse inference could have been drawn against the petitioners.

25. Secondly, this court also finds that the authority has also failed to give due importance to the fact that the revenue receipts and rent receipts were also issued since 1955-56 and the daughters were also in possession of the property.

26. This is due to the reason that as per Gantzer's Settlement report, the rules against female succession among Santhals whether Christian or non-Christian are changing owing to the force of public opinion, and the rules which have been previously accepted, cannot be treated as hard and fast and binding for all time. The change which is occurring is in the direction of ameliorating the condition of women and giving them a more assured footing in the family. During the course of the revision of settlement operations the daughters of a deceased Santhal have sometimes been recorded as his heirs not only without opposition from the agnates but at their request. In other cases it appears from title suit decisions, that arbitrators in Santhal cases have found in favour of daughters. This is particularly so in the case of girls who suffer from any physical defects. In dealing with cases of this nature the custom adopted in a particular locality must be carefully considered. It would be unwise to force upon an unwilling litigant a decision in advance of custom. If a change in custom has been well established and generally accepted it will, of course, be treated as the customary law of the locality in mitigation of the harshness of the ancient tribal law.

27. It has been further summed up in the said report that it may be said that where a Santhal woman has been recorded as wife of so and so, she holds a widow's right as if she were a Hindu widow. Where a Santhal woman has been recorded as daughter of so and so, she may be taken to have full rights of inheritance somewhat in the manner of a woman inheriting stridhan property under the Hindu law. It has been further observed that the question of succession in such cases is still somewhat in doubt as the system is so new, but there seems little doubt that if she dies issueless, Santhal sentiment would prefer that the property should revert to her nearest male relatives.

28. The aforesaid order dated 04.09.1991 passed in RER NO. 9 of 1988 was challenged before the commissioner in revision case no R.M.R. 87 of 91-92 and the said authority rejected the revision vide impugned order dated 24.07.2006 and rejected the claim of the petitioners regarding marriage of all the three daughters in ghar jamai form of marriage by stating that there cannot be more than one ghar jamai and that application for permission to gift was made by the recorded tenant only for two of the three daughters because the eldest one was already married in ghar jamai form of marriage.

29. This court find that both the reason which has been assigned by the Commissioner in the impugned order dated 24.07.2006 to reject the revision petition are perverse. Firstly, there is no such material on record to demonstrate that as per customary law of santhals only one daughter can be married in ghar jamai form of marriage. It has been held in the judgement reported in (2008) 13 SCC 119 (Surajmani Stella Kujur v. Durga Charan Hansdah) followed in Laxmibai v. Bhagwantbuva reported in (2013) 4 SCC 97 that custom being in derogation of general rule, is required to be construed strictly. A party relying upon a custom, is obliged to establish it by way of clear and unambiguous evidence. This court finds that during the course of arguments and inspite of repeated queries from the court, the respondents have not been able to show any material to establish that as per customary law of santhals, where a recorded tenant has more than one daughter, only one daughter can be married in ghar jamai form of marriage so as to inherit the properties of father in law.

30. Secondly, the other reason which has been mentioned by the Commissioner that the very fact that the recorded tenant had earlier filed application before the Sub Divisional Officer seeking permission to gift half of the land to two out of the three daughters, implies that the recorded tenant was intending to compensate his two daughters who would not have got any share because the fact that one daughter was married in ghar jamai form, is also perverse. This finding is apparently in conflict with the contents of the petitions filed before the authority seeking permission which are contained in annexure-1 and 1/1 to this writ petition and order granting permission is contained in annexure 2 to this writ petition which has been passed in revenue miscellaneous case no 83 of 1960-61. On the face of the petitions it is apparent that the petition which was initially filed (annexure-1) clearly indicated that all the three daughters were married in the form of ghar-jamai, however prayer was made seeking permission to gift property only to two of the younger daughters. Subsequent petition (annexure-1/1) indicated that there was an error in earlier petition and that error was rectified by praying that the permission to gift the property should be given in connection with all the three daughters. This court finds that merely because a petition was filed seeking permission to gift the property to the daughters, that does not mean that form of marriage in connection with three daughters was not ghar-jamai form of marriage. Further in the said proceedings being revenue miscellaneous case no 83 of 1960-61, the 16 Anna Raiyat representing the village community had appeared and did not dispute the statement made by the recorded tenant regarding marriage of three daughters in ghar-jamai form of marriage way back in the year 1960-61 and after the death of the recorded tenant the three daughters throughout remained in possession of their respective shares. In this background the revisional authority could not have rejected the claim of the petitioners that the three daughters of the recorded tenant were married in ghar-jamai form by making an observation, without any basis, that such phenomenon is unheard of amongst Santhals and there cannot be more than one ghar jamai.

31. As a cumulative effect of the aforesaid findings, this court is of the considered view, in the facts and circumstances of this case, (particularly in view of the stand was taken by the recorded tenant as back as in the year 1960-61 during the proceeding being revenue miscellaneous case no 83 of 1960-61 that all the three daughters were married in ‘gharjamai’ form, and there being no bar under the santhal customs in having more than one daughter married in ghar-jamai form) that the three daughters were married in ghar jamai form of marriage and the authorities below have committed serious error of record as well as of law while appreciating the materials on record. Accordingly, the three married daughters of the recorded tenant through their husbands, all having been married in ghar jamai form of marriage, had right to inherit the property through their husbands having the status of adopted sons under the customary law of Santhal Pargana. In such circumstances all the three sons in law will have equal status in the matter of inheritance as ghar jamai under the customary law of santhals who are treated as sons. Therefore upon death of the eldest “son in law” and eldest daughter dying issueless, their respective share will devolve upon the other two “sons in law” in the capacity of sons of the recorded tenant.

32. Accordingly the impugned order dated 24.7.2006 (Annexure-5) passed by the learned Commissioner, Santhal Parganas Division, Dumka in RMR No. 87/91-92 is hereby set-aside.

33. Before concluding this judgement, it would be further useful to note that in the case of Madhu Kishwar v. State of Bihar (1996) 5 SCC 125, provisions of Chotanagpur Tenancy Act, 1908 which provide succession to property in the male line was challenged on the ground being discriminatory and unfair against women and, therefore, ultra vires to equality clause in the Constitution. In the said case, the Hon'ble Supreme Court in the majority view held as under in para 13 and gave directions in para 14 to the then state of Bihar as under:—

13. “Agriculture is not a singular vocation. It is, more often than not, a joint venture, mainly of the tiller's family members. Some of them have to work hard and the others harder still. Everybody, young or old, male or female, has chores allotted to perform; a share in the burden of toil. Traditionally and historically, the agricultural family is identified by the male head and this is what Sections 7 and 8 recognise. But on his death, his dependent family females, such as his mother, widow, daughter, daughter-in-law, granddaughter, and others joint with him have, under Sections 7 and 8, to make way to male relatives within and outside the family of the deceased entitled thereunder, disconnecting them from the land and their means of livelihood. Their right to livelihood in that instance gets affected, a right constitutionally recognised, a right which the female enjoyed in common with the last male holder of the tenancy. It is in protection of that right to livelihood, that the immediate female relatives of the last male tenant have the constitutional remedy to stay on holding the land so long as they remain dependent on it for earning their livelihood, for otherwise it would render them destitute. It is on the exhaustion of, or abandonment of land by, such female descendants can the males in the line of descent take over the holding exclusively. In other words, the exclusive right of male succession conceived of in Sections 7 and 8 has to remain in suspended animation so long as the right of livelihood of the female descendant's of the last male holder remains valid and in vogue. It is in this way only that the constitutional right to livelihood of a female can interject in the provisions, to be read as a burden to the statutory right of male succession, entitling her to the status of an intervening limited dependants/descendants under Sections 7 and 8. In this manner alone, and up to this extent can female dependants/descendants be given some succour so that they do not become vagrant and destitutes. To this extent, it must be so held. We would rather, on the other hand, refrain from striking down the provisions as such on the touchstone of Article 14 as this would bring about a chaos in the existing state of law. The intervening right of female dependants/descendants under Sections 7 and 8 of the Act is carved out to this extent, by suspending the exclusive right of the male succession till the female dependants/descendants choose other means of livelihood manifested by abandonment or release of the holding kept for the purpose.

14. For the afore-going reasons, disposal of these writ petitions is ordered with the above relief to the female dependants/descendants. At the same time direction is issued to the State of Bihar to comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law. It is also directed to examine the question of recommending to the Central Government whether the latter would consider it just and necessary to withdraw the exemptions given under the Hindu Succession Act and the Indian Succession Act at this point of time insofar as the applicability of these provisions to the Scheduled Tribes in the State of Bihar is concerned. These writ petitions would on these directions stand disposed of making absolute the interim directions in favour of the writ petitioners for their protection. No costs.”

34. In the dissenting view in the said judgement, the following observations were made in para 28, 37 and 38 and directions were issued in para 56 which reads as follows:—

“28. As per the U.N. Report 1980

“women constitute half the world population, perform nearly two-thirds of work hours, receive one-tenth of the world's income and own less than one-hundredth per cent of world's property”.

Half of the Indian population too are women. Women have always been discriminated against and have suffered and are suffering discrimination in silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination. Articles 13, 14, 15 and 16 of the Constitution of India and other related articles prohibit discrimination on the ground of sex. Social and economic democracy is the cornerstone for success of political democracy. The Scheduled Castes, Scheduled Tribes and women, from time immemorial, suffered discrimination and social inequalities and made them accept their ascribed social status. Among women, the tribal women are the lowest of the low. It is mandatory, therefore, to render them socio-economic justice so as to ensure their dignity of person, so that they be brought into the mainstream of the national life. We are conscious that in Article 25 which defines Hindus, Scheduled Tribes were not brought within its fold to protect their customs and identity. We keep it at the back of out mind.”

“37. The public policy and constitutional philosophy envisaged under Articles 38, 39, 46 and 15(1) and (3) and 14 is to accord social and economic democracy to women as assured in the Preamble of the Constitution. They constitute the core foundation for economic empowerment and social justice to women for stability of political democracy. In other words, they frown upon gender discrimination and aim at elimination of obstacles to enjoy social, economic, political and cultural rights on equal footing. Law is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as civilization and culture advances. The customs and mores must undergo change with the march of time. Justice to the individual is one of the highest interests of the democratic States. Judiciary cannot protect the interests of the common man unless it would redefine the protections of the Constitution and the common law. If law is to adapt itself to the needs of the changing society, it must be flexible and adaptable.

38. Law is the manifestation of principles of justice, equity and good conscience. Rule of law should establish a uniform pattern for harmonious existence in a society where every individual would exercise his rights to his best advantage to achieve excellence, subject to protective discrimination. The best advantage of one person could be the worst disadvantage to another. Law steps in to iron out such creases and ensures equality of protection to individuals as well as group liberties. Man's status is a creature of substantive as well as procedural law to which legal incidents would attach. Justice, equality and fraternity are trinity for social and economic equality. Therefore, law is the foundation on which the potential of the society stands.”

“56. I would hold that the provisions of the Hindu Succession Act, 1956 and the Indian Succession Act, 1925 though in terms, would not apply to the Scheduled Tribes, the general principles contained therein being consistent with justice, equity, fairness, justness and good conscience would apply to them. Accordingly I hold that the Scheduled Tribe women would succeed to the estate of their parent, brother, husband, as heirs by intestate succession and inherit the property with equal share with the male heir with absolute rights as per the general principles of the Hindu Succession Act, 1956, as amended and interpreted by this Court and equally of the Indian Succession Act to tribal Christians. However, the right of alienation will be subject to the relevant provisions like the Act, the Bihar Scheduled Areas Regulation, 1969, Santhals (Amendment) Act, 1958, Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 as amended from time to time etc. They would be applicable to them and subject to the conditions mentioned therein. In case the tribal woman intends to alienate the land, subject to obtaining appropriate permission from the competent authority under the appropriate Act, she should first offer the land for sale to the brother or in his absence to any male lineal descendant of the family and the sale will be in terms of mutually agreed consideration and other terms etc. In case of any disagreement on consideration, the consideration shall be determined on an application filed by either party before the competent civil court of original jurisdiction over the area in which the land is situated and the decision of the civil court after adduction of evidence and consideration thereof, shall be final and binding on the parties. In case the brother or lineal descendant is not willing to purchase either by mutual agreement or as per the price settled by the civil court, the female tribal woman shall be entitled to alienate the land to the non-tribal but subject to the provisions of the appropriate Act.

35. This court has also taken judicial notice of the aforesaid change in the matter of inheritance amongst santhal women in judgment relied upon by the counsel for the petitioners dated 12 December 2008 arising out of judgment and decree dated 21.07.1987 in Title Appeal No. 4/1983. While deciding the said case this court has observed as follows:—

“16. From the aforesaid discussions, it is evidently clear that custom prevailing in the Santhal community has undergone a great change. The rules against female succession among santhals whether christen or non-christens are changing owing to the force of public opinion. The change which is occurring is in the direction of uplifting the condition of women and giving them right in the family as also in the property. From the books of the great scholars who are the authors of many books including the books in Survey and Settlement quoted herein before, it is manifestly clear that there are instances where a sonless male or female have taken in adoption a grandson or any of the agnates of the family.”

36. The counsels appearing in this case have not been able to point out as to what steps were taken by the state government after the directions issued by the Hon'ble Supreme court in para 14 of the said judgement.

37. Considering the fact that the issue of inheritance of property amongst tribal women in the state of Jharkhand, particularly with respect to santhal women, with respect to whom the trend in their favour was observed as back as in the year 1927-35 in aforesaid Ganzter's settlement report, some steps are required to be taken by conducting some study about the recent trends and make appropriate recommendations.

38. The trends of change in customary law of Santhal regarding inheritance of property by women, particularly daughters where there are no sons of recorded tenant, has been duly acknowledged and considered in Gantzer's settlement report as quoted above and it was observed in the report itself that in the customary law dealing with the cases of this nature, the custom adopted in particular locality must be carefully considered. The trend of shift of customs in santhals in the matter of women's right to property was noted in the said report as back as in the year 1927-35. This court is of the considered view that the present status about such customary law, which deprives santhal women from inheriting property, is required to be examined by conducting a study to find out what further changes have taken place in the trend observed as back as in the year 1027-1935, which can be undertaken even by the law commission.