Research › Search › Judgment

Karnataka High Court · body

2000 DIGILAW 535 (KAR)

GOVINDA NAIKA v. RAMA NAIK

2000-07-28

K.SREEDHAR RAO, T.S.THAKUR

body2000
TIRATH S. THAKUR, J. ( 1 ) THIS is a defendant's appeal arising out of a suit for partition decreed by the Civil Judge, Puttur with a declaration that the plaintiff and his three brothers arrayed as defendants in the suit are entitled to partition and separate possession of l/4th share each in the suit property. ( 2 ) ONE of the questions that fell for consideration before the Trial court and which by far is the only issue that arises for consideration before us, was whether the daughters of Mahalinga Naik, father of the parties to the suit were also entitled to claim a share in the property sought to be partitioned. The said question arose on account of an assertion made in the additional written statement filed by defendant 2 to the effect that the daughters of Sri Mahalinga Naik were necessary parties to the suit as they were also entitled to a share in the property in question as per the custom prevalent among Marathi Naika community to which the parties belong. Appreciation of the evidence adduced by the parties in regard to the said plea led the Trial Court to the conclusion that the custom set up by the defendant was not proved and that since the provisions of the Hindu Succession Act, 1956 were not applicable to the parties, who belong to a Scheduled Tribe community, the question of conceding a share to the daughters of Mahalinga Naik through whom the parties claim did not arise. The Court was also of the opinion that occupancy rights in respect of the land which formed the subject-matter of the suit having been granted to the sons of late Sri Mahalinga Naik, it was only the sons, who could in the event of a partition claim a share in the same. The Court accordingly proceeded to decree the suit conceding l/4th share to the plaintiff and each one of the defendants. Aggrieved, the appellant-defendant 2 in the suit has assailed the judgment and decree in the present appeal as noticed earlier. ( 3 ) APPEARING for the appellant, Mr. The Court accordingly proceeded to decree the suit conceding l/4th share to the plaintiff and each one of the defendants. Aggrieved, the appellant-defendant 2 in the suit has assailed the judgment and decree in the present appeal as noticed earlier. ( 3 ) APPEARING for the appellant, Mr. P. Ganapathy Bhat argued that the provisions of Section 2 (2) of the Hindu Succession Act, which made the provisions of the said Act inapplicable to those belonging to scheduled Tribe communities was unconstitutional, inasmuch as it brought about an invidious discrimination between women belonging to scheduled Tribe on the one hand and those, who did not fall in the said category on the other. He urged that those belonging to Scheduled Tribe communities did not cease to be Hindus by faith, nor could the declaration of people belonging to any particular Hindu caste as a Scheduled tribe possibly justify the hostile treatment to which they were being subjected by reason of the provision mentioned above. We find it difficult to subscribe to that view. We say so for more than one reasons. Firstly because, the contention urged at the Bar was not raised at any previous stage of the proceedings nor has any challenge to the constitutional validity of Section 2 (2) of the Act been thrown in the appeal before us. While it is true that the Trial Court could not have on its own determined the vires of the provision now being challenged, it was open to the appellant to have raised the contention and asked for a reference to this court as envisaged by Section 113 of the Code of Civil Procedure. Even before the learned Single Judge, who has referred this appeal to a division Bench having regard to the importance of the questions that fall for consideration, no such plea was at any stage raised. The submission thus is not only without any foundation in the pleadings but highly belated also. Secondly because the challenge to the constitutional validity of the provision ought to come from those adversely affected by the said provision and not from the appellant, who has in no way suffered any prejudice or injury. The submission thus is not only without any foundation in the pleadings but highly belated also. Secondly because the challenge to the constitutional validity of the provision ought to come from those adversely affected by the said provision and not from the appellant, who has in no way suffered any prejudice or injury. If the classification of women entitled to claim a share in terms of the provisions of the Hindu Succession Act on the one hand and those belonging to Scheduled Tribes on the other was offensive to the equality clause contained in Article 14 of the Constitution, a grievance to that effect could and ought to have been made by the women affected by the provision. Thirdly because even if the issue was allowed to be raised and critically examined the same is no longer res integra in the light of the decision of the Supreme Court in Madhu kishwar and Others v State of Bihar and Others. That was also a case, in which the question of granting parity to female tribals with their male counterparts in the matter of intestate succession had fallen for consideration. Constitutional validity of the customary law of tribals governing succession was apart from the provisions of Sections 7 and 8 of Chota Nagpur Tenancy Act challenged on the ground of its being violative of Articles 14 and 15 of the Constitution. Repelling the challenge to the validity of the customary law, the Supreme Court by a majority observed:"in the face of these divisions and visible barricades put up by the sensitive tribal people valuing their own customs, traditions and usages, judicially enforcing on them the principle of personal laws applicable to hers, on an elitist approach or on equality principle, by judicial activism, is a difficult and mind-boggling effort. Brother K. Ramaswamy, J. , seems to have taken the view that Indian legislatures (and Governments too) would not prompt themselves to activate in this direction because of political reasons and in this situation, an activist Court, apolitical as it avowedly is, could get into action and legislate broadly on the lines as suggestedly the petitioners in their written submissions. Brother K. Ramaswamy, J. , seems to have taken the view that Indian legislatures (and Governments too) would not prompt themselves to activate in this direction because of political reasons and in this situation, an activist Court, apolitical as it avowedly is, could get into action and legislate broadly on the lines as suggestedly the petitioners in their written submissions. However, laudable, desirable and attractive the result may seem it has happily been viewed by our learned brother that an activist Court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State policy on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For in whatever measure be the concern of the Court, it compulsively needs to apply, somewhere and at some time, broken to its self-motion, described in judicial parlance as self-restraint. We agree therefore with brother K. Ramaswamy, J. , as summed up by him in the paragraph ending on page 36 of his judgment that under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the Court". ( 4 ) THE alternative argument that Sections 7 and 8 of the Act menioned earlier should be read down so as to entitle the female descenlants to a share in the property equally with their male counterparts was also rejected by the Court in the following words: "however much we may like the law to be so we regret our inability to subscribe to the means in achieving such objective. If this be the route of return on the Court's entering the thicket, it is far better that the Court kept out of it. It is not far to imagine that there would follow a bee-line for similar claims in diverse situations, not stopping at tribal definitions, and a deafening uproar to bring other systems of law in line with the Hindu succession Act and the Indian Succession Act as" models. Rules of succession are indeed susceptible of providing differential treatment, not necessarily equal. Non-uniformities would not in all events violate Article 14. Judge made amendments to provisions, over and above the available legislature, should normally be avoided. Rules of succession are indeed susceptible of providing differential treatment, not necessarily equal. Non-uniformities would not in all events violate Article 14. Judge made amendments to provisions, over and above the available legislature, should normally be avoided. We are thus contained to take this view, even though it may appear to be conservative, for adopting a cautious approach, and the one proposed by our learned brother is, regretfully not acceptable to us". ( 5 ) IN the instant case, the challenge mounted by the appellant is not directed against the customary law governing tribals in Karnataka or marathi Naiks in particular, but against the provisions of Section 2 (2) of the Hindu Succession Act, under which those belonging to Scheduled tribes have been excluded from the application of the said enactment. The substance of the matter however is whether those belonging to scheduled Tribes should through the medium of a pronouncement of the court be brought within the purview of the law relating to succession among Hindus. Any such attempt to introduce a legislative measure only on the basis of a differential treatment in the matter of succession will not be justified nor can a classification between Hindus generally and those belonging to Scheduled Tribes be said to be per se unconstitutional. That is especially so when the question whether tribals should be allowed to be governed by their own customs, traditions and usages is a sensitive issue, which, will defy a satisfactory solution within judicially manageable dimension regardless of whether the attempted solution is based solely on pure idealism or a heightened judicial activism. The supreme Court has in no uncertain terms noticed the hazards besetting any such attempt and cautioned against any such activist approach. ( 6 ) IT was next argued by Mr. Bhat that the Central Government could in exercise of the powers reserved in its favour under Section 2 (2) of the Hindu Succession Act notify the extension of the provisions of the act to all or any one of the Scheduled Tribes. This power, it was argued, had not been exercised by the Central Government because of sheer apathy towards the matter and that this Court could and ought to direct the Central Government to issue an appropriate notification paving way for application of the Hindu Succession Act for the benefit of the women belonging to the Scheduled Tribe communities. This power, it was argued, had not been exercised by the Central Government because of sheer apathy towards the matter and that this Court could and ought to direct the Central Government to issue an appropriate notification paving way for application of the Hindu Succession Act for the benefit of the women belonging to the Scheduled Tribe communities. We regret our inability to accept even that submission. It is true that Section 2 (2) of the Act empowers the Central Government to issue a notification extending the provisions of the Act to the Scheduled Tribes, but whether or not any such notification ought to be issued is a matter which rests entirely with the Government. There is nothing before us to suggest that the scheduled Tribes have requested the Central Government to exercise the power vested in it for extension to them the enacted law governing intestate succession to property. It is therefore difficult to appreciate how the Government could be accused of any apathy in dealing with any such request. That apart, the power vested in the Central Government to notify the extension of the Succession Act to tribals is in our opinion legislative in character. Whether or not any legislative measure is necessary and if so the extent and the manner in which such a measure should be introduced are matters for the legislative authority concerned to consider. No mandamus can issue to any legislative body or authority to introduce or enact a legislation or even consider the question of introducing any particular legislative measure. Even otherwise the question of issuing a direction to the Central Government in proceedings in which it is not a party does not arise especially when the issue of any such direction is neither an issue in the suit or appeal nor essential for adjudication of the question that arises for consideration before us. ( 7 ) IT was next contended by Mr. Bhat that the existence of a custom among Marathi Naiks according to which even females were entitled to a share on partition had been established and that the finding to the contrary recorded by the Trial Court was erroneous. We do not think so. It is fairly well-settled that custom can be proved only by production of satisfactory evidence as to its existence, continuity and consistency as regards its observance. We do not think so. It is fairly well-settled that custom can be proved only by production of satisfactory evidence as to its existence, continuity and consistency as regards its observance. The evidence adduced by the appellant in support of his case that the tribal custom! permitted a share even to the female members of the tribal family was not in the opinion of the Trial court sufficient to establish the custom in the manner required by law. We have been taken through the evidence, but do not find any flaw in appreciation thereof by the Trial Court. The evidence adduced clearly fell short of establishing the alleged custom. ( 8 ) IT was next argued by Mr. Bhat that the tenancy rights although granted only to the male descendants of Mahalinga Naik, the same in fact constituted joint family property in which the daughters of the deceased could also claim a share. That submission must also fail for two precise reasons. Firstly because in the absence of a Tribal custom entitling the females to claim a share in the property, whether the grant of tenancy rights upon the sons of Mahalinga Naik was for the benefit of the joint family or the individuals in whose favour the same were granted becomes academic. Secondly because, the question whether the joint family was the tenant or be brother in their individual capacities is a matter which could and ought to have been raised at the appropriate stage before the Land Tribunal to enable it to determine the same under section 48-A (5) of the Karnataka Land Reforms Act. The appellant, it is not in dispute, did not at any stage raise the said issue before the tribunal and thereby allowed the Tribunal to proceed and confer occupancy rights in the name of the brothers only without determining the question whether the rights were for the benefit of the joint family or the individuals comprising the same. The jurisdiction of a Civil Court to adjudicate upon matters which the Tribunal could have determined under the provisions of the Act aforementioned stands specifically excluded by Section 133 (1) of the Act. The question whether the grant of the rights was for benefit of the individuals or the joint family cannot therefore be raised before a Civil Court. The jurisdiction of a Civil Court to adjudicate upon matters which the Tribunal could have determined under the provisions of the Act aforementioned stands specifically excluded by Section 133 (1) of the Act. The question whether the grant of the rights was for benefit of the individuals or the joint family cannot therefore be raised before a Civil Court. We are supported in that view by the decision of the Supreme Court in Mudakappa v Rudrappa and Others. It is also noteworthy that even though the appellant could have asked for a reference to the Tribunal in terms of Section 133 of the Act, no such reference was actually asked for. Even in the appeal before us, the appellant did not seek a reference to the Tribunal for determination of the issue and in our opinion, rightly so because, even if the grant of the rights was treated for the benefit of the joint family property the right of the daughters to claim a share in the same would depend entirely on the existence of the custom which has not been proved. ( 9 ) IN the result, we see no reason to interfere with the judgment and decree impugned in this appeal, which accordingly fails and is hereby dismissed, but in the circumstances without any orders as to costs. --- *** --- .