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Madhya Pradesh High Court · body

2010 DIGILAW 628 (MP)

Tiwari Bai v. Sita Bai

2010-06-28

PRAKASH SHRIVASTAVA

body2010
JUDGMENT 1. This second appeal under section 100 of the Code of Criminal Procedure has been filed against the judgement dated 2.9.1995 passed by the first Appellate Court allowing the appeal of the respondent No.1 to 3 and reversing the judgment of the trial Court. The trial Court by judgment dated 11.4.1987 passed in civil suit No. 119-A/84 had dismissed the suit filed by the respondent No.1 to 3 and the first Appellate Court by allowing the appeal has decreed the suit of the respondents No.1 to 3. 2. The respondents No.1 to 3 had filed civil suit No. 119-A/84 pleading that the suit property originally belonged to the two brothers Ganpat and Somjya. The plaintiffs are daughters of Ganpat. No partition of properties had taken place between Ganpat and Somjya and after the death of Ganpat, Somjya was giving the agricultural proceeds to the respondents No.1 to 3 in accordance with to their share and 2 years prior to filing of the suit, the respondent No.4 Somjya stopped giving the share to the respondent No.1 to 3 and had illegally sold the suit land to the appellants by executing the sale-deed dated 4.3.1968 (Ex. D/1) and 7.2.1973 (Ex. D/2) in favour of the originally appellant Tiwaribai, the sale-deed dated 20.8.1982 (Ex. D/4) in favour of the originally appellant No.2 Ratan and the sale-deed dated 23.1.1969 (Ex. D/3) in favour of the respondent No.7 Bhiliya. Consequently the respondents No.1 to 3 (plaintiffs) filed the suit for declaration and possession. 3. The respondent No.4 Somjya had not opposed the suit. A joint written-statement was filed by the appellants as well as the respondent No.7 taking the plea that as per the customs prevailing in the caste concerned, the respondents No. 1 to 3 had lost their right in the suit property after their marriage and, therefore, Somjya was the sole owner of the property and the sale-deeds were lawfully executed by Somjya in favour of these respondents. 4. The trial Court by the judgment dated 11.4.1987 dismissed the suit filed by the respondents No.1 to 3 on reaching t6 the conclusion that as per the customs prevailing in Bhil Caste, the respondents No.1 to 3 had lost their right on the suit property after their marriage. The trial Court also found that the partition between Ganpat and Samjya was proved on the basis of the contents of the sale-deeds Exs. The trial Court also found that the partition between Ganpat and Samjya was proved on the basis of the contents of the sale-deeds Exs. D/1 and D/3. The trial Court took the view that Ganpat had not taken any objection to the sale-deeds Exs. D/1 to D/3 which were executed during his lifetime, therefore, these sale-deeds are binding on the respondents No.1 to 3 who are the daughters of Ganpat. 5. The first appellate Court by the judgment dated 2.9.1995 while allowing the appeal of the respondents No.1 to 3 has decreed their suit. The first Appellate Court found that the present appellants who had raised the plea of prevailing customs failed to prove the custom existing in the caste that the married daughter will not get any share in the property of the father. The first Appellate Court held that the sale-deeds dated 7.2.1973 (Ex. D/2) and dated 20.8.1982 (Ex. D/4) executed by Somjya were in excess of his share, therefore, those two sale-deeds were declared null and void and it was directed by the first Appellant Court that the respondents No.1 to 3 (plaintiffs) are entitled to receive the possession of the subject-matter of those sale-deeds from the present appellants. Aggrieved with the judgment, the present appeal has been preferred. 6. This Court by order dated 22.4.2002 while admitting the appeal had formulated the following substantial question of law:- "(1) Whether the lower appellate Court was justified in reversing the decree passed by the trial Court which had dismissed the suit? (2) Whether the sale-deed Exhibit D/1, D/2, D/3 and D/4 executed by Somajya are binding upon the plaintiffs and they being successor-in-title representing the other branch of Ganpat-brother of Somajya? (3) When admittedly Somajya had a share in the property being a co-owner, whether sale-deed made by Somajya in favour of appellants can be declared bad on the ground of no authority and if so to what extent?" 7. The above questions are decided as under:- Substantial Question No. (1): 8. It is not disputed between the parties that the respondents No.1 to 3 are Bhil by caste which is a Scheduled Tribe. It is also not in dispute that in terms of section 2 (2) of the Hindu Succession Act, 1956, the application of the Act is excluded in the present case since it relates to the members of the Scheduled Tribe. It is also not in dispute that in terms of section 2 (2) of the Hindu Succession Act, 1956, the application of the Act is excluded in the present case since it relates to the members of the Scheduled Tribe. Undisputedly the provisions of section 164 of the M.P. Land Revenue Code are attracted in the matter which read as under:- "164. Devolution - Subject to his personal law the interest of Bhumiswami shall, on his death, pass by inheritance, survivorship or bequest, as the case may be." 9. The very language of section 164 of the M.P. Land Revenue Code indicates that the applicability of the section is subject to the personal law applicable to the parties. Therefore, the issue before the Courts below was in respect of the existence of any custom prevailing in the Scheduled Tribe in respect of the right of married daughter in the property of the father. The trial Court had taken the view that the appellants had proved that such a custom exists and in view of the customs the respondents No.1 to 3 had no right; whereas the first appellate Court while reversing the judgment of the trial Court has taken the view that such a custom is not proved. 10. In the present matter the plaintiffs/respondents No.1 to 3 are of Bhil Tribe and it is not in dispute that the inheritance in Bhil Tribe is governed by custom. 11. The Privy Council in the matter of Ahmad Khan and others v. Mt. Channi Bibi, reported in 1925 Privy Council 267, has held that a tribe or family custom excluding a daughter or sister from inheritance, in favour of collaterals may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy and for such a proof no specific instances need to be established. The Privy Council has held that:- "As regards the custom in respect of which the two Courts in India have differed, their Lordships think the Subordinate Judge was in error in putting aside the large body of evidence on the plaintiffs' side merely on the ground that specific instances had not been proved. The Privy Council has held that:- "As regards the custom in respect of which the two Courts in India have differed, their Lordships think the Subordinate Judge was in error in putting aside the large body of evidence on the plaintiffs' side merely on the ground that specific instances had not been proved. They are of opinion that the learned Judges of the High Court are right in holding that a custom of the kind alleged in this case may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy." 12. The Supreme Court in the matter of reported in AIR 1952 SC 231 , has laid down the general principles which are to be kept in view in dealing with the questions of customary law. The Principles No.3 and 4 summarized by the Supreme Court which are relevant for the present controversy are as under:- "3.A Custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. See Mt. Subhani v. Nawab, AIR 1941 PC 21 at 32. 4. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i-am or Manual of Customary Law. See Ahmad Khan v. Mt. Channi Bibi, AIR 1925 PC 267 at 271." 13. See Ahmad Khan v. Mt. Channi Bibi, AIR 1925 PC 267 at 271." 13. The Single Bench of this Court in the matter of Bihari v. Yashvantin, reported in 1983 RN 64, has noted that the Gonds instead of being governed by the Hindu Law, are governed by their special custom in all matters including inheritance. This Court has nagatived the claim of inheritance of property of a Gond female since she failed to establish special custom under which she alone would become entitled to inherit on the death of the owner. 14. The present matter needs to be examined in the light of the aforesaid position of law. 15. In the present matter the appellants had specifically pleaded that as per the custom respondents being married daughters have no right on the suit land. DW-2 Bhiliya, who is of the same caste, has stated that in his caste the married daughters lose their right on the property of the father. He has specifically stated that he had never heard that any girl had received the property of her father. DW 3 Malsingh has also stated that the respondents No.1 to 3 were of his caste and in his caste after marriage the girl does not receive any share in the property of her father and such a custom is prevailing in the caste since beginning. He has further stated that in his caste a married daughter has never demanded share in the property of the father. PW-1 Sitabai in the examination-in-chief had stated that his mother-in-law Jhunnabai and another lady Jhumkabai had received property from their father but in cross-examination see admitted that Jhunnabai was given property by her father willingly and Jhumkabai had received property since her husband was living as GHAR-JAMAI. PW-3 Thavariya has also tried to give the instance of Budiya stating that Basanti, daughter of Budiya, had received share in the property of Budiya but in cross-examination she admitted that Basanti had received share in the property of her father since her husband was living as GHAR-JAMAI. PW-4 Kola has also given the instance of Tiwaribai who was given share in the property of her father, but in the cross-examination he admitted that the husband of Tiwaribai was living as GHAR-JAMAI. PW-4 Kola has also given the instance of Tiwaribai who was given share in the property of her father, but in the cross-examination he admitted that the husband of Tiwaribai was living as GHAR-JAMAI. The above oral evidence makes it clear that as per village custom a married daughter receives share in the property of the father only if her husband lives as GHAR-JAMAI. 16. From the aforesaid evidence it is established that as per custom in the Bhil caste married daughters do not receive share in the property of the father and they receive share in fathar's property only if their husband live as GHAR-JAMAI. 17. The trial Court had dismissed the suit filed by the respondent No.1 to 3 on reaching to the conclusion that it was not established that in Bhil caste the married daughter has right to inherit the property of the father. The first Appellate Court without properly considering the aforesaid position in law and without properly appreciating the evidence on record gave a perverse finding that the appellants failed to prove the custom that in Bhil caste married daughters have no right to inherit the property of the father. The first Appellate Court has not properly construed the pleadings of the parties and has completely ignored the evidence on record led by the parties establishing the custom prevailing in the caste. The first Appellate Court has brushed aside the evidence stating that the specific instances of custom have not been given without giving waitage to the admission made by the plaintiff's own witnesses showing that as per the custom the married daughter received share in the property of the father only if her husband lives as GHAR-JAMAI. The first Appellate Court has committed a factual as well as the legal error in this regard. 18. It is also worth noting that undisputedly the respondents No.1 to 3 belonged to the Bhil caste and the inheritance is governed by the tribe custom, but they failed to plead any custom prevailing in the society under which they were entitled to inherit the property of their father. 19. In view of the aforesaid analysis, it is held that the lower appellate Court was not justified in reversing the decree passed by the trial Court. Substantial Questions No. (2) and (3): 20. 19. In view of the aforesaid analysis, it is held that the lower appellate Court was not justified in reversing the decree passed by the trial Court. Substantial Questions No. (2) and (3): 20. So far as the Questions No. (2) and (3) are concerned, it is undisputed that Somjya and Ganpat had 1/2-1/2 share in the entire suit property. The first Appellate Court has held that Somjya had sold his 1/2 share during the lifetime of Ganpat by executing the sale-deed Exs. D/1 dated 4.3.1968 and D/3 dated 23.1.1969 in favour of Bhiliya and Tiwaribai. Therefore, these sale-deeds in any case are binding on the respondents No. 1 to 3. So far as Exs. D/2 and D/4 are concerned, since Ganpat had no son and the respondents No.1 to 3 being the married daughters of Ganpat were not entitled to receive any share in the property of Ganpat, therefore, the property of Ganpat was inherited by his brother Somjya who had validly executed the sale-deeds Exs.D/2 and D/4. Therefore, these sale-deeds are also binding on the respondents. The sale-deeds Exs. D/1 and D/3 were valid since by those sale-deeds Somjya had sold his 1/2 share in the property and sale-deeds Exs. D/2 and D/4 are valid since by these sale-deeds Somjya had sold 1/2 share which was inherited by him from Ganpat. Therefore, all the four sale-deeds are valid and are binding on the respondent No.1 to 3. 21. In view of the aforesaid analysis, the appeal is allowed. The judgment of the lower appellate Court is set aside and the judgment of the trial Court is restored. No order as to costs.