DHANURJAYA Vs. SUKRA

JUDGEMENT

(1.) Defendant No. 2 is the appellant against a conforming judgement. As would appear from the pleadings of the parties the plaintiff claims to be adopted son of one Danga It a impleaded in the suit on the allegation that defendant No. 1 had executed a will in his favour in respect of the suit properties. Defendants 3, 4 and 5 were alleged to be the persons who instigated the defendant No. 1 to execute a will in favour of defendant No. 2 to deprive the plaintiff of the suit properties. The plaintiff filed the suit praying for partition and for separate possession of the suit properties. He also prayed for perpetual injunction against the defendants or anybody claiming through them restraining them not to deal with the suit properties ignoring the claim of the plaintiff. The main contest by defendants 1 and 2 was that the plaintiff was not the adopted son of defendant No. 1 and they further alleged that there could not be any adoption as the parties were not Hindus. In that view of the matter it was contended that the plaintiff is unconnected with the family of the defendant No. 1 and cannot claim any share in the properties of defendant No. 1. The learned trial court after recording the evidence aduced by the parties came to a finding that the parties are Hindus and were governed by the text of Hindu Law. He further found that the plaintiff has been able to prove the adoption alleged by him. Accordingly, he decreed the suit by passing a preliminary decree for partition of the suit properties in two equal shares and further directing one such share to be given to the plaintiff and other to defendant No 1. Defendants 1 and 2 being aggrieved by the aforesaid judgement carried up the matter in appeal and the same was heard by the Addl. Subordinate Judge, Jeypore. By the impugned judgement he confirmed the finding of the learned Munsif and dismissed the appeal on merits. Defendant No. 1 died during the pendency of the appeal in the lower appellate court. Defendant No. 2 has filed this second appeal challenging the correctness of the judgement of the learned courts below.

(2.) Mr. Naidu appearing for the appellant has urged two points, namely (1) that the contenting defendants 1 and 2 having denied in their written statement that the parties are Hindus, the learned Munsif should have framed an issue in that behalf and non-framing of issues has prejudiced the parties inasmuch as they could not lead evidence in support of their claim; (2) that assuming for the sake of argument that the parties were governed by the Hindu Law, there is no pleading by the plaintiff that they were governed by the Mitakshara School of Hindu law, but the courts below should not have decreed the suit giving a share to the plaintiff as defendant No. 1 had executed a will in favour of defendant No. 2, the present appellant. I will discuss both these points one by one.

(3.) So far as the first point is concerned. it is contended by Mr. Naidu that there is no averment in the plaint that the parties are Hindus and are governed by Hindu law, According to him, in the absence of such an averment and on the face of plea taken in the written statement that the parties are not Hindus, it was highly improper on the part of the trial court to proceed with the trial of the suit without framing a specific issue thereof. It is for that reason, as submitted by Mr. Naidu, the defendants were seriously prejudiced as they could not be any evidence to establish that the parties did not belong to Hindu religious and were not governed by Hindu Law. There is no dispute between the parties that they are scheduled tribes and belong to the tribal areas in the district of Koraput. There is no doubt that before applying the Hindu law the question as to whether the parties are Hindus requires to be answered. There can be no dispute that Hindu Law squarely applies to those who are Aryan descent and profess to be Hindus. The tribal people in all probabilities might not be Aryans and, therefore, the difficulty arises that being non-Aryans whether they can he called Hindus. As discussed by N.R. Raghavachariar in his book of Hindu Law in Ch. II of S.25. some of the earlier Judges and jurists thought it unreasonable to apply the Hindu Law to the Dravidian and other communities of non Aryan descent, as the whole scheme of the Hindu Law was based upon religious and spiritual considerations alien to their thoughts, habits and culture; while others were of opinion that, in view of the centuries that have elapsed between the conquest of the country by the Aryans and the assimilation that has been going on, the Hindu law should be applied to them except in cases where there is clear proof of custom to the contrary. The learned author observes that it can now be taken as settled that the Hindu Law applies even to these communities who can in a sense be called Hinduised aborigines. This analysis appears to me to be correct. Accordingly I would hold that unless any custom to the contrary is proved. the original text of Hindu Law also applies to the tribal people living in the interior parts of the country whose way of life, their habits and culture have been influenced by the Aryans and their missionaries through centuries and who in a sense have embraced and profess Hinduism. The learned trial court proceeded on the basis that they are sudras by caste and applied the customs in the matter of adoption applicable to Sudras. In my view, the said approach is consistent with the approach of the eminent philosophers and jurists of Hindu law. who time and again have emphasised that every Hindu when born is a sudra and it is the Sanskara which takes him to the upper three classes. Assuming that the tribal people were Dravidian in orgin, they having adopted the thoughts. culture and habits of the Hindus, they can be treated as Hindus for all purposes. But they must be regarded as "Sudras" the lowest caste, in the absence of any proof that they have been admitted to the regenerated classes. The grievance of Mr. Naidu is that no specific issues having been framed, the defendants are deprived of leading evidence on the aforesaid question and they have been prejudiced in that behalf. He, however, fairly concedes that no such grievance had been made in the lower appellate court by defendants 1 and 2 who were the appellants. In the memo of appeal filed in this court, no specific ground has been taken in that behalf. In the circumstances. I do not think it appropriate to permit such a ground to be raised for the first time in this appeal.