GOVINDA NAIKA Vs. RAMA NAIK

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for partition decreed by the Civil Judge, Puttur with a declaration that the plaintiff and his three brothers arrayed as defendants in the suit are entitled to partition and separate possession of l/4th share each in the suit property.

(2.) ONE of the questions that fell for consideration before the Trial court and which by far is the only issue that arises for consideration before us, was whether the daughters of Mahalinga Naik, father of the parties to the suit were also entitled to claim a share in the property sought to be partitioned. The said question arose on account of an assertion made in the additional written statement filed by defendant 2 to the effect that the daughters of Sri Mahalinga Naik were necessary parties to the suit as they were also entitled to a share in the property in question as per the custom prevalent among Marathi Naika community to which the parties belong. Appreciation of the evidence adduced by the parties in regard to the said plea led the Trial Court to the conclusion that the custom set up by the defendant was not proved and that since the provisions of the Hindu Succession Act, 1956 were not applicable to the parties, who belong to a Scheduled Tribe community, the question of conceding a share to the daughters of Mahalinga Naik through whom the parties claim did not arise. The Court was also of the opinion that occupancy rights in respect of the land which formed the subject-matter of the suit having been granted to the sons of late Sri Mahalinga Naik, it was only the sons, who could in the event of a partition claim a share in the same. The Court accordingly proceeded to decree the suit conceding l/4th share to the plaintiff and each one of the defendants. Aggrieved, the appellant-defendant 2 in the suit has assailed the judgment and decree in the present appeal as noticed earlier.

(3.) APPEARING for the appellant, Mr. P. Ganapathy Bhat argued that the provisions of Section 2 (2) of the Hindu Succession Act, which made the provisions of the said Act inapplicable to those belonging to Scheduled Tribe communities was unconstitutional, inasmuch as it brought about an invidious discrimination between women belonging to Scheduled Tribe on the one hand and those, who did not fall in the said category on the other. He urged that those belonging to Scheduled Tribe communities did not cease to be Hindus by faith, nor could the declaration of people belonging to any particular Hindu caste as a Scheduled tribe possibly justify the hostile treatment to which they were being subjected by reason of the provision mentioned above. We find it difficult to subscribe to that view. We say so for more than one reasons. Firstly because, the contention urged at the Bar was not raised at any previous stage of the proceedings nor has any challenge to the constitutional validity of Section 2 (2) of the Act been thrown in the appeal before us. While it is true that the Trial Court could not have on its own determined the vires of the provision now being challenged, it was open to the appellant to have raised the contention and asked for a reference to this court as envisaged by Section 113 of the Code of Civil Procedure. Even before the learned Single Judge, who has referred this appeal to a Division Bench having regard to the importance of the questions that fall for consideration, no such plea was at any stage raised. The submission thus is not only without any foundation in the pleadings but highly belated also. Secondly because the challenge to the constitutional validity of the provision ought to come from those adversely affected by the said provision and not from the appellant, who has in no way suffered any prejudice or injury. If the classification of women entitled to claim a share in terms of the provisions of the Hindu Succession Act on the one hand and those belonging to Scheduled Tribes on the other was offensive to the equality clause contained in Article 14 of the Constitution, a grievance to that effect could and ought to have been made by the women affected by the provision. Thirdly because even if the issue was allowed to be raised and critically examined the same is no longer res integra in the light of the decision of the Supreme Court in Madhu kishwar and Others v State of Bihar and Others. That was also a case, in which the question of granting parity to female tribals with their male counterparts in the matter of intestate succession had fallen for consideration. Constitutional validity of the customary law of tribals governing succession was apart from the provisions of Sections 7 and 8 of Chota Nagpur Tenancy Act challenged on the ground of its being violative of Articles 14 and 15 of the Constitution. Repelling the challenge to the validity of the customary law, the Supreme Court by a majority observed: