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2011 DIGILAW 938 (JHR)

Sogen Murmu v. State of Jharkhand

2011-10-10

JAYA ROY, PRAKASH TATIA

body2011
JUDGMENT Prakash Tatia, CJ .-Heard learned counsel for the parties. 2. The appellant is aggrieved against the order passed by the learned single Judge in WP(C) No. 3416 of 2003, by which the writ petition preferred by the respondent No. 4-Smt. Devimai Murmu has been allowed and the order passed by the Commissioner (Annexure-6) appointing appellant as Gram Pradhan has been set aside. 3. The brief facts of the case are that one Doman Murmu was the Gram Pradhan (Headman) of the village Bichpahar, falling in the district of Pakur. He died leaving behind four daughters and as per the admitted fact, Doman Murmu brought in his house Sanatan Tudu as 'gharjamai’ ("gharjamai Marriage" is customary marriage in Santhal Tribe wherein Bridegroom is brought in the house of wife in place of giving of bride in the house of husband.) After the death of Doman Murmu, the wife of said gharjamai Sanatan Tudu, Smt. Devimai, who is daughter of Doman Murmu, applied for the post of Gram Pradhan whereas the appellant-Sogen Murmu applied for the same post on the plea that he is newphew of Doman Murmu and since there is no other male heir/eligible heir of Doman Murmu to succeed to the post of Gram Pradhan, he is entitled to the post of Gram Pradhan. It is pertinent to mention here the gharjamai-Sanatan Tudu, who came in the house of Doman Murmu as gharjamai, did not apply for the post as well as the other daughters also did not apply for the post of Gram Pradhan. 4. The fact remains is that there were two claimants, one Devimai Murmu, the respondent No.4, being the daughter of the deceased Doman Murmu but in the capacity of the wife of gharjamai of Doman Murmu and the contesting person was the nephew of Doman Murmu, the appellant Sogen Murmu. 4. The fact remains is that there were two claimants, one Devimai Murmu, the respondent No.4, being the daughter of the deceased Doman Murmu but in the capacity of the wife of gharjamai of Doman Murmu and the contesting person was the nephew of Doman Murmu, the appellant Sogen Murmu. The parties are governed by Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, and it is claimed by Devi Mai Murmu that the Post of Gram Pradhan is hereditary, though it is public office under the Act of 1949, Section 5 of the Act of 1949 provides for appointment of a village Headman of a khas village and it provides that on the application of a raiyat or of landlord of any khas village, with the consent of at least two thirds of the jamabandi raiyats of the village ascertained in the manner prescribed, the Deputy Commissioner may appoint the Headman for the village. Section 6 thereof deals a contingency upon the death of village Headman of village, which is not a khas village, in that situation, landlord of the village is required to report the fact within three months of its occurrence to the Deputy Commissioner with a view to the appointment of a village Headman in the prescribed manner. Section 7 provides that Gram Pradhan to be granted patta and execute kabuliyat and furnish security, obviously for due discharge of his duty. 5. In exercise of power conferred by clause (i) and (ii) of sub-section (2) of Section 71 of the Act of 1949, the Rules also have been framed, which are known as Santhal pargans Tenancy (Supplementary) Rules, 1951. Rule 3 provides procedure for ascertaining the consent of jamabandi raiyats and appointment of Headman under Section 5. Sub-rule (1) of Rule 3 says that on receipt of an application from a raiyat or a landlord under Section 5, the Deputy Commissioner shall issue notice to the jamabandi raiyats of the village and to the landlord in Form A. Sub-rule (2) of Rule 3 provides for obtaining consent of at least two thirds of the persons recorded as jamabandi raiyats of the village, which shall be ascertained by the Deputy Commissioner by show of hands. Sub-rule (5) of Rule 3 provides for making appointment of Headman under Section 5 or Section 6 i.e., Headman for the khas village or under Section 6 i.e., Headman for the village which are not the khas village, the Deputy Commissioner shall follow the procedure prescribed in Schedule V except where these rules, expressly or by necessary implication, provide otherwise. Schedule V provides that Headman must be a resident of the village and his permanent home must be within one mile of the village. 6. For the purpose of deciding this controversy, which is before us. Clause (1) of Schedule V as well as Clause (3) are relevant, which are as under : Clause (1) "The appointments of headmen shall be made in accordance with village customs, and before confirming any appointment, the Deputy Commissioner shall satisfy himself that the candidate is generally acceptable to the raiyats, and an opportunity shall also in every instance, be afforded to the proprietor to object to any candidate." Clause (3) "The office of headman being hereditary, the next heir, who is fitted, should be headman. If the heir be a minor, he may be appointed headman with a sarbrakhar to manage for him until he attains his majority. If no suitable sarbrakhar can be found, the right of the minor lapses. 7. The Sub-divisional Officer, by order dated 29th September, 2001 held that the present appellant, the nephew of the original Gram Pradhan-Doman Murmu, in favour of whom majority raiyats have voted and who is heir also is entitled to be appointed as a Gram Pradhan whereas the respondent No. 4. Smt. Devimai Murmu being the wife of gharjamai and daughter of Doman Murmu is not a heir as well as is not accepted by the villagers, in view of the vote caste by the villagers in favour of the appellant. 8. At the cost of repetition, it may be recapitulated that the Sanatan Tudu gharjamai had not applied for the post, who as per the customary law governing the parties could be treated as son of the deceased Doman Murmu, the original Gram Pradhan. 9. 8. At the cost of repetition, it may be recapitulated that the Sanatan Tudu gharjamai had not applied for the post, who as per the customary law governing the parties could be treated as son of the deceased Doman Murmu, the original Gram Pradhan. 9. In appeal, the Deputy Commissioner, Pakur held that the procedure was not followed by the Sub-divisional Officer for obtaining the consent of the raiyats of the village and the Sub-divisional Officer has taken into consideration the irrelevant fact of the complaint of the 1995 submitted against respondent No. 4 Devimai Murmu. The Deputy Commissioner, Pakur also opined that after contacting gharjamai marriage with the daughter of the deceased Doman Murmu, Devimai Murmu also got the status of the son of her father Doman Murmu and, therefore, she is heir as well as entitled to post of Gram Pradhan in preference to the nephew, the appellant. 10. The Deputy Commissioner's order dated 12th September, 2002 was challenged by preferring second appeal before the Divisional Commissioner, Santhal Paragana, Dumka, who after considering the pleas of the parties held that gharjamai acquires the status of an adopted son and is at par with adopted son in the Hindu law. Since, in Santhal Paragana, Gharjamai form of marriage is a recognized form of marriage, therefore, Sanatan Tudu may become the heir of Doman Murmu and, therefore, Devimai Murmu, the daughter of Doman Murmu, is not heir and not entitled to be appointed as Gram Pradhan. 11. Being aggrieved by the order passed by the Divisional Commissioner dated 20th May, 2003, respondent No.4 Smt. Devimai Murmu preferred writ petition which was allowed by the learned single Judge, after observing that Headman is hereditary post and the next heir ought to be appointed as a Headman and such person may be either son or the daughter. A daughter is entitled to become as Headman only, if she is a 'gharjamai daughter' meaning thereby that she must have married to a person by performing gharjamai form of marriage and her husband must be living at his in-laws place by severing off his relationship with his own family. The learned single Judge also considered the "Gantzer's Report" for reaching to the conclusion that after becoming gharjamai daughter Devimai Murmu, the daughter of Doman Murmu, became entitled to all the rights of Doman Murmu. 12. The learned single Judge also considered the "Gantzer's Report" for reaching to the conclusion that after becoming gharjamai daughter Devimai Murmu, the daughter of Doman Murmu, became entitled to all the rights of Doman Murmu. 12. Learned counsel for the appellant vehemently submitted that the law has been totally misinterpreted, which is apparent from the impugned Judgment of the learned single Judge dated 18th August, 2009, wherein a new relation has been coined which is 'gharjamai daughter' whereas there is no such relation in Tribes. Then it is submitted that firstly the post, if it is treated to be a hereditary post then Devimai Murmu is not the heir as she is a married daughter and as per the law applicable to the Santhals Tribe, married daughter is not the heir in any manner of the property or rights of her father. Secondly, even if one contracts a gharjamai marriage and brings the husband in the family of the father even then at the most the said gharjamai can become the heir as per customary law in the Tribe and also happens in the case of parties governed by Hindu Succession Act and gharjamai is treated as adopted son. In this case the gharjamai of Doman Murmu, the husband of Devimai Murmu, has not claimed any light nor such appointment on the post of Gram Pradhan. Learned counsel for the appellant relied upon two judgments of the Patna High Court, delivered in the case of Jagdish Misra v. Chamaklal Misra, reported in 1965 BLJR 674 and Babu Lal Hembrum v. State of Bihar and Ors., reported in 1997 (2) Bihar Law Judgment, 840, and furthermore an unreported judgment of the Patna High Court, in the case of Durjodhan Mandal v. Ghosto Mandal and Ors., reported in Civil Writ Jurisdiction Case No. 180 of 1968 dated 31st March, 1969. It is submitted that paramount consideration is the choice of the villagers and post of Gram Pradhan is not a hereditary post or right as held in Jagdish Misra's case (supra), wherein a nephew was given preference when the son of the deceased Gram Pradhan was there but he was out-rightly rejected by the villagers. In Babu Lal Hembrum's case (supra), a claim of the son of Granm Pradhan was rejected on the ground that he was not residing within one mile of the village regularly. In Babu Lal Hembrum's case (supra), a claim of the son of Granm Pradhan was rejected on the ground that he was not residing within one mile of the village regularly. According to the learned counsel for the appellant, hereditary claim is only a preferential right and not an absolute light and it can be rejected in case, firstly, if the alleged successor failed to obtain the consent of villagers and secondly even on the ground that he is not residing in the village or within one mile of the village. In this case, the appellant is nearest relative of deceased Gram Pradhan and also got majority of the votes of the villagers, as required under law and against that respondent No.4 got only eight votes, which clearly proved the claim of the appellant. Learned counsel for the appellant also relied upon the judgment of Ashok Kumar Hembrom v. Rani Hembrom, reported in 1987 PLJR 938 and one judgment of the Hon'ble Supreme Court, delivered in the case of Gazula Dasaratha Rama Rao v. State of Andhra Pradesh and Ors., reported in AIR 1961 SC 564 , wherein the question of hereditary claim has been considered by the Hon'ble Supreme Court. 13. Learned counsel for the respondent No. 4 vehemently submitted that the respondent No. 4 is "gharjamai daughter" and in view of the personal law, as has been recognized even in the District Gazetter of Santhal Paragana of the year 1938, 'gharjamai daughter' (the wife of gharjamai) succeeds the property of the father. The learned counsel for the respondent No. 4 placed before us one book containing the extract of the said District Gazetteer of Santhal Pargana, 1938. We would like to quote the text, which has been relied upon by the learned counsel for the respondent, which is as under: "The Santal law of succession is patriarchal. The father has absolute control over the family property so long he is alive. The Santal customary law of inheritance does not recognize the female to succeed over the family property. The female has no claim in the property. The daughter cannot succeed over the property of her deceased father unless she is married in the gharjamai form. The gharjamai daughter to all intended purposes gets the reflection of the son. The Santal law of inherittance accepts the gharjamai daughter to succeed only to continue the family (Parish) line. The female has no claim in the property. The daughter cannot succeed over the property of her deceased father unless she is married in the gharjamai form. The gharjamai daughter to all intended purposes gets the reflection of the son. The Santal law of inherittance accepts the gharjamai daughter to succeed only to continue the family (Parish) line. If the gharjamai daughter dies issueless, the property of the deceased will not devolve on the gharjamai or son-in-law. The son-in-law is joint owner with his wife and his son. In absence of these two he has no legal claim in the property. He can only claim khorposh or maintenance so long he is alive and lives as a widower. But if he re-marries he forfeits even the claim of the maintenance. This is because the Santal customary law of inheritance does not allow the change-over of the property from one Parish (line) to another Parish except in the case of the gharjamai daughter. The old District Gazetter of Santal Parganas (1938) has mentioned that the widow cannot create a gharjamai. But this is found to be wrong. The widow can create a gharjamai with the consent of the next heirs of her deceased husband. The other married daughter has no claim over the property of her deceased father even in default of son or grandson. But recently there have been cases in which the married daughters had acquired valid title in the separate property of their fathers. But the daughter cannot succeed if the property is joint. In certain circumstances as stated elsewhere the daughters have absolute rights on the movables of her deceased father." 14. But recently there have been cases in which the married daughters had acquired valid title in the separate property of their fathers. But the daughter cannot succeed if the property is joint. In certain circumstances as stated elsewhere the daughters have absolute rights on the movables of her deceased father." 14. On the basis of the above text mentioned in the book (name of the publisher and author of the book is not in the book provided to us, which may be due to the fact that the book is old one), learned counsel for the respondent vehemently submitted that the learned single Judge rightly held that respondent No. 4 is 'gharjamai daughter' and finding of fact recorded by the First Appellate Court cannot be ignored, wherein it has been specifically held that procedure for voting was not valid and a document of complaint was taken into account, which was of the year 1995, and was not relevant for the purpose of deciding the issue, nor could have been a material piece of evidence for the purpose of recording the consent of the raiyat and villagers. 15. We have considered the submissions of the learned counsel for the parties and perused the facts of the case. So far as the provisions made in Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 are concerned, Section 5 thereof governs appointment of a village Headman of a khas village whereas Section 6 provides for appointment of headman for the village which are not khas village for which the vacancy may occurs due to the death of the Headman. Section 5 clearly provides that in the khas village, the headman can be appointed on an application of the riayat or landlord of the said village and such appointment can be made with the consent of at least two-thirds of the jamabandi raiyats of the village, which is required to be ascertained by the Deputy Commissioner. Such consent is required to be obtained, as provided under Rule 3 of the Rules of 1951 and it requires issuance of notice to the jamabandi raiyats of the village and to the landlord in Form A, prescribed in the Rules of 1951 itself and the consent for appointment on the post of Headman. Such consent is required to be obtained, as provided under Rule 3 of the Rules of 1951 and it requires issuance of notice to the jamabandi raiyats of the village and to the landlord in Form A, prescribed in the Rules of 1951 itself and the consent for appointment on the post of Headman. Under Section 5, consent is required to be obtained by the Deputy Commissioner himself and it is to be by show of hands and not by secret ballot voting. Though separate provision has been made under Rule 3 for appointment of the village Headman when vacancy occurs for a village which is not the khas village due to the death of the Headman. Sub-rule (5) of Rule 3 of Rules 1951 provided that in making the appointments of headman under Sections 5 and 6 i.e., in both the case, the Deputy Commissioner shall follow the rules prescribed in Schedule V except where these rules, expressly or by necessary implication, provide otherwise. This is nobody's case that the application of Schedule V has been excluded by expressly or by necessary implication Clause (1) of Schedule V provides appointment of headman in accordance with village customs and it is made very specifically clear that before confirming any appointment the Deputy Commissioner shall satisfy himself that the candidate is generally acceptable to the raiyats. Sections 5 and 6 as a whole as such nowhere provide that post of Gram Pradhan shall be hereditary, nor so has been provide in Clause (1) of Schedule V. However, Clause (3) of Schedule V mentioned that ‘the office of Headman being hereditary, the next heir, who is fitted, should be headman’. Here, in the Rules, for the first time, it has been mentioned that office of headman is hereditary. Therefore, from the conjoint reading of Sections 5 and 6 with sub-rule (3) and (5) of Rule 3 read with clause (1) and (3) of Schedule V, it comes out that the procedure for appointment of the Headman for both the villages i.e. khas village and the village which is not the khas village is the same. Therefore, from the conjoint reading of Sections 5 and 6 with sub-rule (3) and (5) of Rule 3 read with clause (1) and (3) of Schedule V, it comes out that the procedure for appointment of the Headman for both the villages i.e. khas village and the village which is not the khas village is the same. It is required to be appointed in the case of khas village, specifically with the consent of at least two thirds of the jamabandi raiayats of the village and so far headman for the villages, which are not khas village, then in that case on the death of headman, as per sub-rule (5) of Rules 3 of 1951, in accordance with the Schedule V and clause (l) of Schedule V the appointment of headman shall be made in accordance with the village customs and it also says that the candidate must be generally acceptable to the raiyats. Therefore, the dispute cropped up in this case whether a person, who is heir, can be appointed on the post of headman of the village by virtue of his being heir or is required to be acceptable to the raiyats. 16. For this, in the case of Jagdish Misra v. Chamaklal Misra, 1965 BLJR 674, it has been held by the Division Bench of the Patna High Court that the Pradhan is a representative of the raiayts and his appointment has to be made by the Deputy Commissioner according to the wishes of the raiyats as to the acceptability of a particular man being appointed as a Pradhan. The Division Bench has also observed that, therefore, the most important thing for the Deputy Commissioner before appointing a Pradhan is to satisfy himself whether the man who is going to be appointed as a Pradhan is acceptable to the jamabandi raiyats or not as the appointment has to be made by the Deputy Commissioner in conformity with the opinion of the jamabandi raiyats. The language of Section 5 and Section 6 read with sub-rule (5) of Rule 3 clearly indicate that the paramount consideration is the satisfaction of the Deputy Commissioner in conformity with the opinion of the jamabandi raiyats. The hereditary right is only a preferential right and not an absolute right and this right makes one eligible in preference to others for consideration for the post of Headman and not decisive factor in any manner. The hereditary right is only a preferential right and not an absolute right and this right makes one eligible in preference to others for consideration for the post of Headman and not decisive factor in any manner. Thus becoming eligible is one thing but further more required is he should be acceptable to the villagers as per in the Rules. In Jagdish Mishra's case (supra), the claim of the better heir was rejected on the ground of not acceptable to the villagers. Not only this, that claim of even a son can be rejected, when he is not regularly residing in the village or within one mile area of the village, as has been held by the Single Bench of the Patna High Court in Babu Lal Hembrum v. State of Bihar and Ors., reported in 1997 (2) BLJ 840. 16. However, here in this case, the core question is not the above, which will be apparent from the facts and the question is whether respondent Devimai, wife of gharjamai, is even heir of deceased Gram Pradhan Doman Murmu. 17. From the book cited by learned counsel for the respondent, we have quoted the passage only for the purpose of showing that in the said book there is reference of word 'gharjamai daughter'. In the same book, referred by the learned counsel for the respondent, in Appendix 1, which is also an extract from Gantzer's Settlement Report (paragraph 46 pages 22-23), the issue of inheritance in the Santhal Tribal has been discussed. It has been said in the same book that the Hindu or Muhammadan laws of succession do not apply to Santhals. The Santhal tribal law is quite definite in not allowing females to inheritance. However, it has been observed but this law is gradually undergoing a change and the situation created by this change has been discussed by the author in a separate paragraph but because of customary law of not giving right to female yet has not been affected nor said customary law stand modified. The change may be in process but yet has not become new customary law as there is no such precedent claimed by any of the parties before us. The change may be in process but yet has not become new customary law as there is no such precedent claimed by any of the parties before us. Be that as it may, it cannot be disputed in view of the legal position that Hindu and Muhammadan Succession laws do not apply to Santhals and Santhal tribal law is quite definite in not allowing females to inheritance. We are not examining the logic for continuation of such customary law when all Governments are encouraging the education and self dependency of women and all are preaching for equal rights for female and making reservations in elected post and also reserving post of Chairperson in elected bodies and more pertinent, reservation for SC and ST women candidate in elections, whether customary law should continue which deny not only rights in the property of father but deny public post. The adoption of a gharjamai is a formal proceeding leaving no room for doubt as to the father-in-law's intention and resulting in the gharjamai cutting off all connections with his own family as far as his rights to property are concerned and becoming to all intents and purposes the son of his father-in-law. When such adoption has been formally made, the gharjamai can succeed as a son and oust other male relatives. The author has also said that it is important to note that gharjamai can be adopted only by a deliberate public act in the presence of the village community at the time of the marriage. Gharjamai marriage is also a peculiar type of marriage and in that marriage the bridal party goes from the brides house to fetch the prospective husband and no dowry is given whereas gharjamai is adopted permanently as a son There is another form of marriage i.e., gharjamai who merely lives and labours in his wife's home for a previously stipulated period which may extend upto five years. 19. 19. There is another Gazette publication, which has been cited by the learned counsel for the appellant and has been considered by the Division Bench of the Patna High Court in the case of Ashok Kumar Hembrom v. Rani Hembrom, reported in 1987 PLJR 938, i.e., the District Gazette of Santhal Parganas printed in the year 1965 by the Superintendent, Secretariat Press, Patna, has been quoted, which is as under : "In appendix I, the extract from the Gantzer's settlement report have been given which says that the Santhal Tribal law is quite consistent in not allowing females to inherit the land but it is open to a male having no son but a daughter to take his son-in-law to his house as a gharjamai and to give him all the rights of a son. Such a gharjamai cuts off all connections with his father's family and he becomes for all tenets and purposes the son of his father-in-law. A gharjamai can be adopted only by deliberate public act in the presence of the village community at the time of marriage." Therefore, in view of both the publication, it is quite clear that the ghmramai cuts off all connections from his father's family and he becomes for all tenets and purposes the son of his father-in-law. 20. Therefore, we are of the considered opinion that the word 'ghmjamai daughter' might have been inadvertently used in the book cited by the learned counsel for the respondent No. 4 and we found the word only 'gharjamai', which appears to be in consonance with the legal proposition that gharjamai became the son of father-in-law for all purposes and if so then it will be difficult to hold that on the death of father-in-law of the gharjamai, the daughter who is the wife of gharjamai will also have the equal share with her husband successor of her father. 21. In view of the above reasons, the respondent No. 4 cannot be said to be a legal heir, so as to become eligible for the purpose of consideration for appointment on the post of Gram Pradhan. Therefore, her challenge to the order passed by the Sub-divisional Officer itself was not maintainable and the restoration of the order passed by Sub-divisional Officer by the second appellate authority was legal and just. Therefore, her challenge to the order passed by the Sub-divisional Officer itself was not maintainable and the restoration of the order passed by Sub-divisional Officer by the second appellate authority was legal and just. It appears that the learned single Judge proceeded to accept the relation like 'gharjamai daughter' but we are of the view that there is no word and relation like 'gharjamai daughter'. 22. In view of the above reasons,- the order passed by the learned single Judge dated 18th August, 2009 deserves to be set aside and hence set aside. Consequently, the appellate order, restoring the order of the Sub-divisional Officer is upheld. 23. The letters patent appeal is, accordingly, allowed. Appeal allowed.