MATIUS TIRKEY Vs. JUSUPHIN LAKRA

JUDGEMENT

(1.) THE appellants/plaintiffs have filed the instant appeal against the judgment dated 15.10.1996 and its corresponding decree dated 23.11.1996, passed in Title Suit No. 1 of 1995 by the Subordinate Judge -I, Simdega, whereby the suit of the plaintiffs was dismissed. The suit was filed for a declaration that the permission order dated 07.12.1962 passed by the Rent Suit Deputy Collector in Miscellaneous Case No. 92 R8 II of 1962 is illegal, void and without jurisdiction and also for a declaration that the registered deed of gift executed on 21.12.1962 by Luisa Tirkey in favour of her daughter Josiphin Lakra (defendant No. 1) is void, illegal and inoperative and with a further prayer that after adjudication of the right, title, interest as well as possession of the plaintiffs over the suit land fully described in Schedule A to the plaint, to order for delivery of possession of the suit land to the plaintiffs.

(2.) THE parties belong to the same family having a common ancestor. As per the genealogy admitted by the parties, Lajru Mahto was the common ancestor, who had two sons, namely, Botko and Buta, While Botko had two sons, namely, Lodo and Turchu, Buta had one son, namely, Sukrw, Botkos second sort, namely, Turchu died issueless, while his wile had pre -deceased him. His share in the properties of his father, therefore, devolved upon his brother Lodo. Botkos elder son, namely, Lodo died without any male issue leaving behind his widow, Luisa and daughter Josiphin (defendant No. 1). The plaintiffs are the descendants of Buta being the grand sons of Buta and sons of Sukru. The parties admittedly belong to the Uraon community and claim to be guided by the customary laws, prevailing in their community in the matter of inheritance and succession.

(3.) THE plaintiffs have pleaded that according to the customary law of the Uraon Community, if a person dies without a male issue, then his widow and daughter do not succeed to his property as heirs. The females have only right of maintenance in the property of the husband/father till their lifetime and the property devolves upon the near agnates of the deceased male. The plaintiffs have alleged that in contravention of such customary law, Lodes widow, Luisa Tirky gifted away the properties of her deceased husband by gift deed dated 21.12,1962 in favour of her daughter Josiphin Lakra. The permission for such transfer by way of gift was accorded to the said donor by the Rent Suit Deputy Collector, Simdega under Section 46 of the Chhotanagpur Tenancy Act by order dated 07,12,1962, passed in Miscellaneous Case No. 92 R8 II of 1962. The plaintiffs have claimed that the permission granted by the Rent Suit Deputy Collector was illegal, void and without authority and likewise the deed of gift executed by Luisa Tirky in favour of her daughter, Josiphin Lakra in respect of the properties mentioned, therein, was also illegal and against the law. The plaintiffs have claimed that since Lodos daughter Josiphin Lakra was given away in marriage even during the lifetime of her father and she used to live in her matrimonial house, Lodos widow had only a right of maintenance in her husbands property and since Lodo died without any male issue, his entire properties, according to the customary law, devolved upon the plaintiffs, who are the surviving agnates of Lodo. The further case of the plaintiffs is that their father Sukru Mahato had filed a suit against Luisa Tirky and Josiphin Lakra vide Title Suit No. 1 of 1963 before the S.D.O. Munsif, Gumla, challenging the gift deed but the plaint was returned on the ground of lack of jurisdiction of the court. Thereafter plaintiffs father Sukru Mahato filed an application before the Sub -Judge, Ranchi vide Title Suit No. 274 of 1969, which was dismissed for default on 03.08.1974, since the plaintiff Sukru Mahto had died on 12.01.1974 and his sons, namely, the present plaintiffs, who were in Assam at that time in course of their livelihood, had no knowledge about the said suit. It was only during the Revisional Survey, when the defendant No. 1, Josiphin Lakra had advanced her claim over the suit lands, the plaintiffs came to know about the said Title Suit No, 274 of 1968 and about its dismissal on 12.01.1974. The plaintiffs thereafter filed an Appeal against Luisa Tirky, challenging the mutation of her name in respect of the suit lands in the Revenue Records vide Revenue Title Suit Appeal No. 6 R of 1964 -65, but the decision in the same had remained inconclusive. The plaintiffs have claimed that cause of action for the present suit had accrued to them when Title Suit No. 274 of 1968 was dismissed for default on 12.01.1974 and later in 1994 when the plaintiffs came to know about the registered deed of gift.