Arjun Soren v. Negi Santhalin — 1989 DIGILAW 268 (PAT)

Judgment S. B. Sinha J, J. 1. This First Appeal at the instance of the defendants appellants arises out of a judgment and decree dated 27-2-1975 passed by Shri r B P. Sinha, Subordinate Judge Jamshedpur in Title (Partition) Suit No.26 of 1972 whereby and whereunder the said learned court decreed the plaintiff respondents suit inter alia declaring her l/3rd share in the suit lands. 2. The plaintiff-respondent filed the aformentioned suit alleging inter alia therein that one Kuar Santhal was the common ancestor of the parties, who died leaving behind his four sons namely, Pachia, Dubai, Sagram and Barjo, dubai died leaving behind a son Arjun Soren who is defendant No.1 Barjo also died leaving behind three sons who are defendant Nos.2 to 4. Sagram also died leaving behind his three sons namely Doman, Taria and Hiralal but they all pre-deceased Pachia without leaving any issue whatsoever. According to the plaintiff, after the death of Kuar Santhal and his three sons, the plaintiffs father Pachia and his two surviving brothers became the sole owner in respect of the properties in suit and upon the death of Pachia, the plaintiff being her only heir succeeded to the interest of his father. 3. The defendants filed a joint written statement alleging inter alia therein that there had been a previous partition in respect of the suit lands during the life time of Pachia wherein some plots were allotted to him. After allotment of the lauds in the share of Pachia, he transferred some lands to the plaintiff and the same are being cultivated by her and her husband and as such olaintiff has no share in the suit lands. It was further asserted that the parties being aboriginals, are governed by their customary law in the matter of succession and inheritance. The defendants further asserted that m any event the plaintiffs having been ousted from the suit lands, the suit is barred by limitation. 4. Upon the aforementioned pleadings of the parties the learned trial court framed the following issues. The defendants further asserted that m any event the plaintiffs having been ousted from the suit lands, the suit is barred by limitation. 4. Upon the aforementioned pleadings of the parties the learned trial court framed the following issues. (1) Whether the plaintiff has got any cause of action for the suit (2) Whether the suit as framed is maintainable (3) Whether the suit is barred by limitation and ouster (4) Whether there is unity of title and possession between the parties over the suit land (5) Whether the plaintiff has got one-third share in the suit land and whether she is entitled to get it partitioned by metes and bounds as claimed (6) Whether the plaintiff is entitled to get a decree as claimed (7) To what relief, if any, is the plaintiff entitled ? 5. The learned court below held that the genalogy of the Parties as alleged in the plaint is not disputed. It further held that the defendant had not been able to prove either their case of previous partition or ouster of the plaintiff from the suit lands, the plaintiff was entitled to the reliefs claimed for by her. 6. When this appeal came up for hearing on the earlier occasion, this court by an order dated 5-8-1987 remitted the case to the trial court in terms of order 41, Rule 25 of the Code of Civil Procedure directing the learned trial court to frame two additional issues viz. (i) as to whether the parties are adibasis and as such members of the Scheduled Tribes and (ii) in the event, it is held that the parties are adibasis whether they would be governed by their customary law or not. 7. Upon the passing of the aforementioned order, the learned trial court framed two additional issue as directed by this court. The learned trial court also gave opportunities to the parties to adduce additional evidences. 8. By reason of the judgment dated 10-1-1989, Shri Suresh Prasad Sinha, sub-ordinate Judge, 3rd Court held that admittedly the parties are adibasis and thus members of the Schedule Tribes. 9. However, while deciding the aforemention additional issue No.2, the learned court below took into consideration the evidences adduced on behalf of the parties and held that the parties are governed by Hindu Law in the matter of succession and inheritance as they were sufficiently Hinduised. 10. 9. However, while deciding the aforemention additional issue No.2, the learned court below took into consideration the evidences adduced on behalf of the parties and held that the parties are governed by Hindu Law in the matter of succession and inheritance as they were sufficiently Hinduised. 10. Before the learned trial court, the learned counsel appearing on behalf of the defendants conceedcd that the burden of proof lies upon the defendants to prove that the parties are governed by their customary law. The learned court below further held that the parties are governed in the matter of inheritance and succession by the Hindu Law and a daughter has got equal share to that of a son in her fathers properties. 11. The appellants have not filed any memo of objection as against the judgment of the learned court below dated 10-1-1989. 12. Mr. P. K. Sinha, the learned counsel appearing on behalf of the appellant, in support of the appeal, raised a short question. He submitted that even assuming that the parties to the suit were sufficiently Hinduised but in view of sub-section 2 of Sec.2 of the Hindu Succession Act, 1956 , the provisions thereof cannot have any application to the members oi Scheduled Tribes. According to the learned counsel, in that situation, the partition must be held to be governed by their customary law. The learned counsel in this connection has placed strong reliance upon a decision of the Supreme Court in the case of shaslri Yograpurushdasquee V/s. Muldas Bhumdardas Vaisya and another reported in 1966 S. C 1119. It was further submitted that the decision of Division bench of this Court in Langa Manjhi and others V/s. Jeba Manjhian and others reported in AIR 1971 : Patna 185 cannot be relied upon as a precedent. 13. In this case the aforementioned question does not strictly arise for consideration, as it has come in evidence that the father of the plaintiff died prior to the coming into force of the said Act. Thus the matter of inheritance will be governed by Hindu Law as existing prior to the contrary into force of the said Act. However as the learned counsel for the parties have addressed me on the aforementioned question at great length it is necessary to consider the said question. 14. Thus the matter of inheritance will be governed by Hindu Law as existing prior to the contrary into force of the said Act. However as the learned counsel for the parties have addressed me on the aforementioned question at great length it is necessary to consider the said question. 14. From a plain reading of sub-section (1) of the Section (2) of the said act it is evident that the application of the said Act has been extended to the classes of persons enumerated therein. Sub-section 2 of Sec.2 however provides a non-obstante clauses as a result whereof the application of the said act is excluded, so far as the members of any Schedule Tribes within the meaning of Clause 25 of Article 366 of the Constitution ate concerned. In terms of sub-section 3 of Sec.2 of the said Act, the expression "hindu" in any portion of the said Act shall be construed as if it had included a person who though not a Hindu by reition is a person to whom this Act applies by virtue of the provisions as contained in that section. 15. In other words by reasons of iub-section 3 of Sec.2 of the said act the said Act applies to those persons who although not a Hindu by religion but has been brought within the purview of the said Act in view of the extended applicability of the said Act in terms of sub-section 1 of Sec.2 thereof. 16. At this juncture, it may be mentioned that Sec.2 of the said Act, is in part materia with the similar provisions of Hindu Marriage Act, 1955 and hindu Adoptions and Maintenance Act. 17. Except the division of mine in an un-reported case (Daudwa Uraon and another V/s. Karrueluous Uraon and others), the counsel for the parties have not drawn my attention to any other decision directly covering the point (sic)at issue. 18. Clause 25 of Article 366 of the Constitution reads as follows : "in these constitution unless the context otherwise requires the following expressions have the meaning hereby retrospectively assigned to them i. e. to say "scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribal communities as are deemed under Article 342 to be Schedule Tribes for the purposes of this Constitution". Articles 342 which occurs in Part XVI of the Constitution reads as follows ; " (1) The president may with respect to any State or Union territory and where it Governor thereof by public notification, specify the tribes of tribal communities or parts of or groups within tribal communities which shall for the purposes of this constitution be deemed to be scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in exclude from the list of Scheduled tribes specified in a notification issued under Clause (1) any tibe or tribal community or part of or group within any tibe or tribal community but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification" . In view of the fact that the parties to the suit conceded before the trial court that they are Adibasis and thus members of Scheduled Tribe, which findings having not been challenged before this court, the case has to be judged as to whether the provisions of the Hindu Succession Act, 1956 apply to the case of the parties to the suit or not. 19. The learned trial court in his judgment dated 10-1-1989 has merely held that the parties have sufficiently been Hinduised. Sub-section 2 of Sec.2 hindu Succession Act, 1956 as noticed herein before provides for a nonobtante clause, 20. The question therefore arises for consideration is as to whether in view of the said provision a member of a Schedule Tribes would be governed by the provision of the Hindu Succession Act, 1956 if he is otherwise a Hindu by religion in any of its form or developments, although it is found that the parties are members of Scheduled Tribes. 21. A member of Scheduled Tribes even if he is a Hindu, is excluded from the operation of the said Act by reason of Sec.2 of sub-section 2 thereof. It is one thing to say that the parties have been Hinduised, sufficiently or otherwise and would thus be governed by Hindu Law for the purpose of succession or inheritance but it would be another thing to contend that even hindu Succession Act apply to them. 22. It is one thing to say that the parties have been Hinduised, sufficiently or otherwise and would thus be governed by Hindu Law for the purpose of succession or inheritance but it would be another thing to contend that even hindu Succession Act apply to them. 22. The non-obstante clause provided for in Sec.2 of sub-section 2 of the Act is absolutely clear and is of wide emplitude.22-A. It is a well known canon of interpretation that a statute has to be construed ex-viscer-ibus-actus i. e. within the four corners of the statute. It is also well known that normally a non obstante clause has to be given its full effect. Reference in this connection may be made to Lilly Stella Rodrigues V/s. Girija Bai and others reported in AIR 1969, Mysore 100. 23. Sub-section 2 of Sec.2 of the said Act, in my opinion, exclude the applicability thereof in respect of the members of Scheduled Tribes who are covered by Clause 25 of Article 366 of the Constitution. The very fact that the central Government has been conferred with the power to otherwise direct by a notification is a clear pointer to the fact that the parliament in its wisdom thought it fit to make the said act in applicable to the members of the Schedule tribes, but considered that if the Central Government is of opinion that the provisions of the said Act should be made applicable to the members of the scheduled Tribes, it may do so which opinion may be formed by the Central government taking into consideration their uplift-ment, educational development and economical and other social developments. 24. In Municipal Corporation, Indore and others V/s. Smt. Ratnaprabha and others reported AIR 1977 SC p.308 while construing a non obstante clause, supreme Court held as follows ;- "as has been stated. 24. In Municipal Corporation, Indore and others V/s. Smt. Ratnaprabha and others reported AIR 1977 SC p.308 while construing a non obstante clause, supreme Court held as follows ;- "as has been stated. Clause (b) of Sec.138 of the act provides that the annual value of any building shall" notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year" While therefore, the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this should be so "notwithstanding anything contained in any other law for the time being in force". It appears to us that it would be a proper interpretation of the provisions of Clause (b) of Sec.138 of the act to hold that in a case where the standared rent of a building has been fixed under Sec.7 of the Madhya Pradesh Accommodation control Act, and there is nothing to show that there has been fraud or collusion, that would be its reasonable letting value, but, where this is not so, and the building has never being let out and is being used in a manner where the question of dixing its standard rent does not arise, it would be permissible to fix its reasonable rent without regard to the provisions of Madhya Pradesh Accomodation control Act, 1961. This view will, in our opinion, give proper effect to the non-obstante clause in Clause (b), with due regard to its other provision that the letting value should be reasonable . 25 In this view of the matter, I have no hesitation to hold that the provisions of hindu Succession Act, 1956 have no application to the case of the parties. 26. The decision of this court in Langa Manjhis case (Supra) cannot be said to be an authority with regard to the constructions of the provisions of hindu Succession Act as the said question did not fall for consideration therein, 27. The Supreme Court in Shastris case (Supra) has dealt with the true scope, effect and meaning of words hindu and hindu religion and its development from time to time. The Supreme Court in Shastris case (Supra) has dealt with the true scope, effect and meaning of words hindu and hindu religion and its development from time to time. The Supreme Court in the aforementioned decision has also considered the definition of the word Hindu in various facts as also under a Constitution. It upon analisis of the opinion occurring in various treatises and upon consideration of various texts of Hindu religion came to the conclusion that even satsangi followers of Swami Narayan are Hindus within the meaning of the provisions and of Bombay Hindu Places of Public Works (Entry authorisation) Act (Act No.31/1966 ). 28. However, in this case this court is concerned with a different situation. It is now well known that a decision is an authority for what it decides and not what logically follows from it. 29. In view of the Statutory definition of hindu as engraphted in Sec.2 of the said Act, it is not necessary for this Court to embark upon an enquiry as to whether the parties have become Hinduised or not, in view of the fact that in terms of sub-section 2 of Sec.2 the applicability is clearly excluded in relation to a person who is a member of Scheduled Tribes within the meaning of Clause 25 of Articles 366 of the Constitution. 30. However, the matter does not rest there. Although the provisions of hindu Succession Act, 1956 may not have any application in view of the statutory exlusion thereof in the case of members of the Scheduled Tribes but still the parties having been sufficiently Hinduised, in the matter of the inheritance and succession, they would be governed by the Hindu Law i. e. the law as prevailing before coming into force the Hindu Succession Act. 31. The plaintiff on her own showing claims the property by inheritance from her father. In the plaint, it has not been disputed that the properties at one point of time belonged to one Kuar Santhal who has been the common ancestor of the parties. Admittedly the ancestors of the plaintiff formed the joint family as otherwise there was no question of filing a suit for partition. In the plaint, it has not been disputed that the properties at one point of time belonged to one Kuar Santhal who has been the common ancestor of the parties. Admittedly the ancestors of the plaintiff formed the joint family as otherwise there was no question of filing a suit for partition. The concept of a joint family is that it consist of all persons lennially from a common ancestor and includes wives and un-married daughters but a daughters cases to be a member of her fathers family upon her marriage and becomes a members of her husbands family. 32. A Hindu Co-parcenary is however a narrower body than the joint family members of a co-parcenary acquire by birth an interest in the co-parcenary property. A female cannot be a member of a co-parcenary. 33. In view of the decision of this Court in Langa Manjhis case (Supra)it must be held that the parties formed a Hindu Co-parcenary family and the properties being co-parcenary properties, on the death of the plaintiffs father his interest in the co-parcenary property did not pass by succession to his heirs but it passed by survivalship to the other co-parceners. 34. The Hindu Womens Right to Property Act applies to a widow only and not to a daughter. 35. In this situation, taking in any view of the matter, the plaintiff did not succeed the property in suit upon the death of her father. 36. In this view of the matter, the judgment and decree passed by the learned court below cannot be sustained. 37. In the result, the appeal is allowed and the judgment and decree passed by the learned Court below is set-aside. However, in the facts and circumstances of the case, there will be no order as to costs. Appeal allowed.