LALSAI Vs. BODHAN RAM

JUDGEMENT

(1.) This Second Appeal under S. 100 C.P.C. has been preferred against the judgment and decree dated 16-12-1991 passed by the learned IInd Additional District Judge, Ambikapur district Sarguja (M.P.) in Civil Appeal No.133-A/87 affirming the judgment and decree dated 25-7-1987 passed by the learned Ist Civil Judge, Class-II, Ambikapur in Civil Suit No. 82-A/84.

(2.) The facts necessary for decision in this appeal in brief are as below :- One Gendu was the original owner of the disputed property as enumerated in the Schedule-A annexed to the plaint which shall hereinafter be referred to as disputed property. Gendu admittedly belonged to 'Uraon' community which was a Scheduled Tribe as declared by constitution (Scheduled Tribe) Order, 1950. The said Gendu died in 1966-67 leaving behind his widow Smt. Deeno, the original defendant No. 2 who died during the pendency of the suit and two sons Bodhan Ram, the plaintiff/respondent No. 1 and Jethu, the defendant/respondent No. 2. Lalsai the appellant/defendant No. 1 is the son of Jethu. Previously Smt. Deeno instituted a Civil suit No. 40-A/75 for partition claiming 1/3rd share against her two sons Bodhan Ram and Jethu. On 6-5-1977 a compromise decree was passed on the basis of a compromise entered into by both the parties. In the comporomise decree the disputed property fell into the share of Smt. Deeno.It was also decreed that Smt. Deeno shall hold the property during her lifetime and shall not be able to alienate the same. On 2-6-1981 Smt. Deena executed a registered gift deed in relation to the disputed property in favour of Lalsai, the appellant. Bodhan Ram, the plaintiff/respondent No. 1 instituted a Civil Suit alleging that he and the other members of the branch of Gendu are members of scheduled tribe and are governed by their customary law in the matter of inheritance. During the pendency of the suit Smt. Deena died and thereafter the plaint was amended and it was pleaded that Bodhan Ram and Jethu are entitled to 1/2 share each in the disputed property. Accordingly a relief of partition was also claimed. Both the Courts below inter alia held that the parties being members of scheduled tribe are governed by their customary law though they have adopted Hindu law since times immemorial as it stood prior to Hindu Succession Act, 1956 (for short 'the Act' 1956). It has, further, been held that Smt. Deeno had merely life interest in the disputed property. It has also been held that in the absence of notification as envisaged in S.2(2) of the Act of 1956, the Act of 1956 shall not apply to the parties of the suit. It has also been held that compromise decree in civil suit No. 40-A/75 was binding upon parties and operates as res judicata wherein the disputed property was allotted to Smt. Deeno for her life with restriction to alienate the same. It is also held that Bodhan Ram and Jethu are the owners of the disputed property to the extent of 1/2 share each and the gift-deed dated 2-6-1981 is not binding upon them as Smt. Deeno was not legally competent to gift the disputed property to Lalsai, the appellant.

(3.) Against the said judgment and decree, this appeal under S. 100 C.P.C. has been admitted on the following substantial question of law :-