MOHARI MAHTO Vs. MOKARAM MAHTO

JUDGEMENT

(1.) Admittedly, the properties in suit, which are given in schedules A and B of the plaint, were originally owned and possessed by one Bodhnath Mahton of Chhotanagpur, that means, a member of aboriginal tribes of non-aryan descent. Bodhnath Mahton is said to have died sometime in 1946, leaving behind him his widow Mosammat Mahrangi arid a daughter Salo. The case of the plaintiff, who is the respondent here, is that on the death of Bodhnath Mahton, all his properties including the properties in dispute was inherited by his widow Mosammat Mahrangi. Thereafter Mosammat Mahrangi is said to have executed a registered deed of gift in respect of the properties in dispute on the 27th March 1948 in favour of his daughter Salo and her two daughter's sons, Baijnath Mahlon and Raghunath Mahto. Thus since then, according to the plaintiff, it were the donees who were the owners of these properties and had been in possession thereof. It is said that on the 25th May, 1948, these donees executed two registered documents, both in favour of the plaintiff. By one of them, a permanent Rayati lease was created in respect of the lands of Khata No. 68, which is referred to in schedule A of the plaint, and by the other, the lands of Khata No. 73, which form the subject-matter of schedule B of the plaint, were sold. The plaintiff asserts that as such he has been in possession of the lands of these two khatas since then. But it is said that in December 1959, his possession was challenged by the defendants, who are the admitted agnates of Bodhnath Mahton and the appellants before me. Accordingly, the suit has been brought for declaration of title and confirmation or in the alternative recovery of possession in respect of the lands of the aforesaid two khatas.

(2.) The main defence set up by the defendants is that according to the custom prevailing in the community of the Kurmi Mahtons of Chotanagpur, females are excluded from inheritance. Further, it has also been pleaded that on the death of Bodhnath Mahton, his properties were not inherited by Mosammat Maharangi, but by the agnates, namely, the defendants. Then there is also the defence taken that the suit, as constituted, is barred by limitation and adverse possession. It, however, appears that though an issue was framed in regard to the question of limitation and adverse possession, but it has not been pressed in either of the two Courts below, and the case has been disposed of mainly on the consideration whether the females of Kurmi Mahton of Chotanagpur are excluded from inheritance by custom. On this point, the two Courts below have come to conflicting conclusions. The conclusion arrived at by the trial Court was:

(3.) In appeal, that judgment has been reversed. The lower appellate Court has approached the case on the assumption that the Kurmi Mahtons of Chotanagpur are Hindus and, therefore, the presumption is in favour of the plaintiff that on the death of Bodhnath Mahton, his properties were inherited by his widow Mosammat Mahrangi, and unless that is rebutted by the defendants by proving that the Kurmi Mahtons of Chotanagpur are not governed by the Hindu law in the matter of succession but by certain custom, whereunder a widow and a daughter are not entitled to inheritance, that presumption in law is sufficient to secure a decree in favour of the plaintiff. Thereafter, on discussion, it has disbelieved the evidence of the D. Ws. 1 to 6 and accepted the evidence of P. Ws. 8, 9 and 10. Accordingly, the suit in the appellate Court has been decreed.