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2011 DIGILAW 780 (JHR)

Debla Hansda v. Sardar Murmu

2011-08-11

N.N.TIWARI

body2011
JUDGMENT By Court: This second appeal is against the judgment and decree of the 1st Additional District Judge, Dumka passed in Title Appeal no.22 of 1976/15 of 1980, whereby the learned Lower Appellate Court has set aside the judgment and decree of the learned 2nd Additional Subordinate Judge, Dumka passed in Title Suit no.66/11 of 1970/1973. 2. The plaintiffs are appellants in this appeal. 3. The plaintiffs had filed Title Suit no.66 of 1970 in the court of Subordinate Judge, Dumka, praying relief for declaration of their title and confirmation of possession (alternatively for recovery of possession) over the suit property described in ScheduleA of the plaint. The suit property appertains to Jamabandi no.5 of village Bara Godro, P.S. Ramgarh, District Dumka (Santhal Pargana). 4. Brief facts germane to this appeal is that the suit property was recorded in the name of Dasmat Hembrom in the last survey and settlement record along with his brothers, namely, Sitaram Hembrom and Sakula Hembrom. Brothers of Dasmat Hembrom died issueless and their interest devolved on Dasmat Hembrom. Dasmat had two sons, Lakhan and Bisu. Lakhan predeceased Dasmat. Dasmat Hembrom had also three daughters, namely, Lakhia, Dubni and Duli Hembrom (plaintiff). Dubni died during the pendency of the suit. She was substituted by her son Manjhi Baskey. Bisu Hembrom had two sons Dasmat and Som and one daughter Salma. Dasmat and Som had died during the life time of their fatherBisu Hembrom. Salma married with Sardar Murmu (Defendant) in ordinary form of marriage during the life time of two sons of Bisu Hembrom. She was the eldest daughter of Bisu. A few years after the marriage of Salma, two sons of Bisu died unmarried one after the other during the lifetime of Bisu and grand father Dasmat. Plaintiff no.3Duli Hembrom used to live with her fatherDasmat. There was an arrangement during the lifetime of Dasmat on 12th November, 1946 in presence of the villagers and the Pradhan. In the family arrangement, Dasmat allotted half of the suit land to Bisu and the other half to Plaintiff no.3. The said arrangement was with the understanding that so long Dasmat is alive he would live with his daughterDuli. Half of the land of J.B. no.5 was allotted to her. Salma Hembrom died in the house of the husband Sardar Murmu in Kauadhab, which is at a distance of one mile from the village Bara Gudro. The said arrangement was with the understanding that so long Dasmat is alive he would live with his daughterDuli. Half of the land of J.B. no.5 was allotted to her. Salma Hembrom died in the house of the husband Sardar Murmu in Kauadhab, which is at a distance of one mile from the village Bara Gudro. There was no issue out of the wedlock of Sardar Murmu and Salma. Bisu also died issueless subsequently. His widow left her husband's home and remarried in village Rajbandh. The land, which was allotted to Bisu Hembrom by family arrangement, reverted to his fatherDasmat after the death of Bisu. Dasmat died living behind his three daughters (plaintiffs) as legal heirs. The plaintiffs inherited the suit land according to Santhal Customary Law of inheritance prevalent in their locality. They also performed last right of their father. After the death of their father, the plaintiffs have been paying rent of the suit land. They are residing in the house of their father. The name of the Plaintiff no.3 is also mutated in Mutation Case no.2(4) of 196768. The plaintiffs are rightful owners of the suit land and they are in peaceful possession thereof. Sardar Murmu has no manner of right, title and interest over the suit land and he was never in possession of the same. However, said Sardar Murmu dishonestly clamed that he was married with Salma, daughter of Bisu Hembrom, in Gharjamai form and tried to disturb peaceful possession of the plaintiffs. The dispute led to a proceeding under Section 144 Cr.P.C., which was registered as Cr. Misc. no.343 of 1970. In the said proceeding Rule was arbitrarily made absolute against the plaintiffs by order dated 13th August, 1970. The order was wholly erroneous and illegal and the same cast a shadow of cloud over the title of the plaintiffs and also gave rise to the cause of action for the suit. 5. The defendants appeared and contested the suit. In his written statement, he has challenged the maintainability of the suit and stated that the same is barred by limitation, waiver and acquiescence and also for nonjoinder of Duli Tudu, widow of Bisu. It was stated that the defendant was married to Salma in 'Gharjamai' form after the two sons of Bisu Hembrom had died and the ceremony of ‘Lebethachur’, which is essential ritual for marriage in 'Gharjamai' form, was performed. It was stated that the defendant was married to Salma in 'Gharjamai' form after the two sons of Bisu Hembrom had died and the ceremony of ‘Lebethachur’, which is essential ritual for marriage in 'Gharjamai' form, was performed. The defendant denied the plaintiffs’ claim of family arrangement and allotment of share to the Plaintiff no.3. It was stated that there cannot be such arrangement in Santhal custom as because Bisu during lifetime of his father Dasmat had no subsisting title over the suit land. The land is nontransferable and the same cannot be transferred in any form even by way of family arrangement as alleged by the plaintiffs. After the death of Dasmat, Duli Tudu, the widow of Bisu, has been living with the defendant and his wifeSalma in the house of Dasmat. They cultivate the land and enjoy the usufruct of the suit land. Plaintiff no.3 never cultivated the suit land, as alleged in the plaint. Salma died about two years after the death of Bisu in the house of Dasmat at village Bara Godro and not at Kuadhab, as alleged by the plaintiffs. After the death of Dasmat, the defendant with his wife Salma, being Gharjamai, inherited the property of Dasmat. The plaintiffs being the daughters of Dasmat, were excluded from the inheritance in Santhal Customary Law. The plaintiffs are, thus, not entitled to any relief and the suit is liable to be dismissed. 6. On the basis of the said pleadings, learned Trial Court framed as many as eight issues. Both the parties adduced their evidences. 7. Learned Trial Court on conclusion of trial held, inter alia, that the traditional orthodox customary law of inheritance prevalent in Santhals seems to have changed to some extent in favour of females, as indicated in the final report of Mr. J. F. Gantzer. Learned Trial Court, thus, held that in the case none of the parties appeared to have taken the stand in the pleadings that any agnate of Dasmat has preferential right over the daughter. Learned Trial Court decided almost all issues in favour of the plaintiffs and decreed the suit. 8. The defendant challenged the said judgment and decree in the court of District Judge, Dumka (Santhal Pargana) in Title Appeal No.22 of 1976. The said appeal was finally heard and disposed of by 1st Additional District Judge, Dumka. 9. Learned Trial Court decided almost all issues in favour of the plaintiffs and decreed the suit. 8. The defendant challenged the said judgment and decree in the court of District Judge, Dumka (Santhal Pargana) in Title Appeal No.22 of 1976. The said appeal was finally heard and disposed of by 1st Additional District Judge, Dumka. 9. Learned Lower Appellate Court heard the parties and framed three points for consideration. 10. After thorough appraisal of the facts and evidences on record as well as the prevalent custom and the provisions of law, learned Lower Appellate Court recorded his independent findings disagreeing with findings of the learned Trial Court. 11. Learned Lower Appellate Court held that there is established custom among the Santhals under which only male can inherit land, firstly the sons jointly succeed to their father and if there is no surviving sons, the brothers and the sons of predeceased brother inherit the property per stripes. Hindu Law or Mohammedan Law do not apply to Santhal Tribal. According to tribal custom, it is permissible to marry daughter with a person taking soninlaw and keeping him in his house as 'Gharjamai'. Gharjamai takes share equal to that of son or if there is no other son, 'Gharjamai' succeeds to the property of the inlaws. 'Gharjamai' even oust other male relatives. He further held that the daughter, who is not married in 'Gharjamai' form, is excluded from inheriting the father’s property. The said custom is age old and quoted with the approval in the case of Kandan Soren & Ors. Vs. Jitan hembrom [AIR 1973 Patna 206]. In the said decision, the survey settlement report of Mr. J. F. Gantzer was also quoted. The Patna High Court, on that basis, had held that it is the 'Gharjamai' and not the daughter married in 'Gharjamai' form will inherit the property of fatherinlaw. Learned court below concluded that the plaintiffs have not been able to adduce any evidence either documentary or oral to prove that the said custom has changed or the customs alleged by them have the force of law. 12. Learned Lower Appellate Court thus held that Sardar Murmu was married with Salma in Gharjamai form and according to well established Santhal Custom, inherited the suit land after the death of Dasmat as a son of Bisu Hembrom, in the analogy of an adopted son. 12. Learned Lower Appellate Court thus held that Sardar Murmu was married with Salma in Gharjamai form and according to well established Santhal Custom, inherited the suit land after the death of Dasmat as a son of Bisu Hembrom, in the analogy of an adopted son. Learned Lower Appellate Court also held that the plaintiffs’ suit was bad for nonjoinder of Duli Tudu, the widow of Bisu Hembrom. 13. In this second appeal, the judgment and decree of the learned Lower Appellate Court has been assailed mainly on the ground that orthodox custom of Santhal has become flexible by the passage of time and it was also found by the Settlement Officer of Santhal ParganaMr. J. F. Gantzer during survey and settlement operation of the district of Santhal Pargana in 193235. Mr. Gantzer had clearly remarked that Santhal Tribal Law is quite different in not allowing the female to inherit, but this law is gradually undergoing a change and the situation created by this change is discussed by him. He had also found that there are some cases in which the daughters have been allowed to inherit as heirs with some infirmity and the record of rights have been prepared in their names in some cases with the consent of Santhal males. 14. Mr. Rajeeva Sharma, learned senior counsel, appearing on behalf of the appellants, submitted that the Courts of law should take a progressive view in the line of the equality enshrined in the Constitution of India and in the cases where the daughters are found holding lands of their father, their right should be recognized by the courts of law. Learned counsel submitted that though Santhals are not governed by Hindu or Mohammedan Laws, there are instances that some of the Santhal families have been gradually adopting the principle of Hindu Laws and the females are allowed to inherit the property. In the instant case, the plaintiffs have claimed the property being the daughters of Dasmat, who was recorded tenant, whereas the defendant is the soninlaw of the family and the soninlaw does not inherit the property of his fatherinlaw. Learned counsel submitted that the learned Trial Court had taken into consideration the gradual change in the custom and had rightly decreed the plaintiffs’ suit, holding that the plaintiffs are entitled to inherit the land and properties of their father. 15. Learned counsel submitted that the learned Trial Court had taken into consideration the gradual change in the custom and had rightly decreed the plaintiffs’ suit, holding that the plaintiffs are entitled to inherit the land and properties of their father. 15. I have heard learned counsel and considered the facts and materials on record. I have also gone through the judgments and decrees of the learned courts below. Although, learned Trial Court has decreed the plaintiffs’ suit mainly considering one passage of the then Settlement Officer, Mr. J. F. Gantzer observing that the law is gradually undergoing change, learned Trial Court in coming to the said finding has brushed aside the fact that there is no such specific pleading and proof on record of any change in custom in the family of the plaintiffs. If there is any change in the established custom or there is particular custom contrary to that prevalent custom of the society, which has been accepted as law by the Courts since ancient time, any such change in the custom has to be expressly pleaded and proved. In the instant case, the plaintiffs have claimed that according to the Santhal Custom prevalent in the locality the daughters also inherited the property. That is contrary to the established general Santhal Custom in which female do not inherit property. That exception to the general Santhal custom and deviation from the tradition has not been pleaded and proved by the plaintiffs in accordance with law. 16. Learned Lower Appellate Court on discussion of the evidences has found that the evidences adduced in the instant case on behalf of the plaintiffs in support of their claim are mere hearsay and there is no basis for the same. The plaintiffs have not been able to adduce any evidence either documentary or oral to establish that the general custom of Santhal which has force of law either changed or is not applicable to the plaintiffs’ family. Learned Lower Appellate Court has also rightly held that one or two stray cases of coming in possession of the daughter after the death of father cannot establish an exception to the well recognized ancient general custom, which is accepted as law and which excludes the daughter from inheritance. 17. Learned Lower Appellate Court has also rightly held that one or two stray cases of coming in possession of the daughter after the death of father cannot establish an exception to the well recognized ancient general custom, which is accepted as law and which excludes the daughter from inheritance. 17. After thorough discussion of the facts and evidences on record, learned Lower Appellate Court has also come to the conclusion that the defendant was married in 'Gharjamai' form with Salma. In the customary law of Santhal if a soninlaw is adopted as 'Gharjamai', he inherits the land and property as a son on the analogy of an adopted son. Learned Lower Appellate Court has discussed every aspect in detail and has arrived at the finding that the defendantSardar Murmu was married with Salma in 'Gharjamai' form and inherited the suit land after the death of Dasmat. 18. Mr. Sharma, learned senior counsel, appearing on behalf of the appellants, submitted that Salma cannot be married in 'Gharjamai' form in presence of her grandfatherDasmat during the lifetime of Bisu Hembrom, son of Dasmat. It has been submitted that as the son cannot inherit the property of his father during his lifetime, in the same analogy, the son cannot marry his daughter in 'Gharjamai' form during the lifetime of his father. 19. I find no similarity in the analogy between incidence of inheritance and the marriage of daughter in Gharjamai form. No contrary material or legal provision has been brought on record to substantiate with the said submission. I further find that the learned Lower Appellate Court has also rightly held that Duli Tudu, widow of Bisu Hembrom, is a necessary party, but she was not impleaded in the suit. Learned Lower Appellate Court has recorded specific reason, quoting Paragraph no.46 of the Mr. Gantzer’s report, in which it has been specifically mentioned that the widow has life interest in the property of her fatherinlaw in preference of daughter. In that view, it was necessary to implead Duli Tudu as a party. 20. In view of the above discussion, I find no error in the judgment and decree of the learned Lower Appellate Court, giving rise to any substantial question of law to be framed and decided in this second appeal. 21. This appeal is, accordingly, dismissed.