CHUIYYA S/O JHADI Vs. MANGARI BAI

JUDGEMENT

(1.) THIS is defendant's second appeal under section 100, Civil Procedure Code. The following substantial question of law was formulated at the time of the admission of this appeal by order dated 21 -1 - 1999: - - "Whether the finding of the learned lower Appellate Court that the respondent No. 1 Mangaribai as per caste custom applicable to the parties was entitled to inherit the suit property is legally sustainable"? Plaintiff Mangaribai is daughter of Marchai. He had no male issue. He was son of Budhawa. Jhadi was brother of Marchai. The defendants are sons of Jhadi. The parties belong to Oraon tribe which is a "scheduled tribe". Budhawa has left behind 11.46 acres of land as per schedule -A annexed to the plaint in village Basantala Tahsil Kunkuri district Raigarh. The plaintiff, daughter of Marchai is claiming half share in these lands. The case of the defendants is that in Oraon tribe the daughter is not entitled to inherit the property of her father. The inheritance amongst Oraon community is governed by their customary law.

(2.) THE trial Court held that the plaintiff is not entitled to inherit the share of her father as per caste custom. Reliance has been placed on a book written by S.C. Rai "The Oraon of Chhota Nagpur". It has been held that a daughter is not entitled to inherit the property of her father. The First Appellate Court has reversed this finding and has held that the plaintiffs husband Phoolchand was kept as "Ghar Jamai" after her marriage with him by Budhawa and, therefore, she is entitled to inherit the share of her father in the lands in dispute. That has been held to be a recognized caste custom. It is true that the provisions of Hindu Succession Act, 1956 do not apply to the members of the Scheduled Tribe as per section 2(2) of this Act. It is also true that the parties to this suit belong to Oraon tribe which is a scheduled tribe. The real question is whether according to the caste custom the plaintiff is entitled to inherit the share of her father in the lands in dispute. She has no brother. It was a peculiar feature of old Hindu Law based on the interpretation of the Vedas and Smritis that a daughter is not entitled to inherit the property of her father if he has left behind a son. In the absence of son the daughter was entitled to inheritance and she used to get "limited Estate" and on her death it used to pass on to the reversioners of her father. That rule of Hindu Law has been abrogated by section 14 of the Hindu Succession Act, 1956 which confers full heritable capacity on a female heir. In the present case there is no definite evidence that amongst the Oraons a daughter is excluded from inheriting the property of her father in all the circumstances. The evidence adduced by the defendants has been perused by this Court. The witnesses have stated that the daughters have no right of inheritance in their community but they have not cited a single instance in which a daughter has been excluded from inheriting the property of her father even in the absence of his male issue. Plaintiff Mangari Bai (PW -1) has deposed that in village Basantala Nishia has inherited the property of her father and similarly another lady has inherited the property of her father in village Jiling. Defendant Chuiyya Ram (DW -1) has deposed that a daughter is not entitled to inherit the property of her father even in the absence of her brother. In cross -examination he has stated that he is "Hindu Oraon" and he is observing the customs of Hindu Oraon and there is a custom of bringing Ghar Jamai in his caste. Biroram (DW -2), Atawaram (DW -3) and Subedarram (DW -4) have deposed in examination -in -chief that a daughter has no right of inheritance in their community but they have also admitted that there is system of bringing Ghar Jamai if the father has no son. In the present case the plaintiffs husband was brought as Ghar Jamai. Therefore, the First Appellate Court has rightly held that the plaintiff is entitled to inherit the share of her father in the lands in dispute. The burden was on the defendants to establish that there is a custom which excludes a daughter from inheritance even in the absence of her brother and even if her husband is brought as Ghar Jamai. A daughter is also entitled to be treated with equality. There should be no disparity in the rights of man and woman in matters of succession and inheritance. That is now recognized in all the systems. The customary law of scheduled tribe has been preserved under section 2(2) of the Hindu Succession Act, 1956 but in a given case it is for the person setting up the plea of exclusion of daughter from inheritance to prove and establish that there is such a caste custom. A custom is a rule which has by long usage obtained the force of law. It must be ancient, certain and reasonable. It should be established by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of its existence and of the fact that it possesses the conditions of antiquity and certainty on which alone legal title to recognition depends. It is incumbent on a party setting up a custom of allege and prove the custom on which he relies. In the present case the evidence adduced by the defendants is so sketchy and scanty that it cannot be held that there is a custom in Oraon community by which a daughter is excluded from inheriting the property of her father in all the circumstances. The First Appellate Court has rightly held that there is a recognized exception in which the daughter is entitled to inherit where her husband has been brought as Ghar Jamai and in the present case the plaintiff s husband Phoolchand was brought as Ghar Jamai by Budhwa. The First Appellate Court has rightly concluded that the plaintiff is entitled to inherit the share of her father in the lands in dispute. Her claim must be upheld on the principle of equality. As already discussed the defendants have not established any custom by which the plaintiff could be excluded from inheriting the property of her father.

(3.) THE plaintiff, a tribal woman, has no means of livelihood except from the lands left by her father. Her husband is not possessed of any land. It has also been found that the plaintiff has been to a large extent deserted by her husband Phoolchand. Therefore, it is necessary to provide some succour to her. In this connection the judgment of the Supreme Court in Madhu Kishwar vs. State of Bihar, : AIR 1996 SC 1864, is very important. In the case the majority decision has laid down as under: - - "Traditionally and historically, the agricultural family is identified by the male head and this is what sections 7 and 8 of the Chhota Nagpur Tenancy Act, 1908 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 a male relative 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 of the Chhota Nagpur Tenancy Act, 1908 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 dependents/descendents under sections 7 and 8 of the Chota Nagpur Tenancy Act, 1908. In this manner alone, and upto this extent can female dependents/descendents be given some succour so that they do not become vagrant and destitutes. To this extent, it must be so held." In view of the law laid down by the Supreme Court in the case referred above, the plaintiff in the present case is entitled to the share of her father in the lands in dispute at least till the time she is alive. The question whether after her death the land would go to the reversioners of her husband, can be examined later on.