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2019 DIGILAW 1234 (JHR)

Mosomat Jhunia v. State of Jharkhand

2019-07-03

SUJIT NARAYAN PRASAD

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JUDGMENT : 1. This writ petition is under Article 226 of the Constitution of India, whereby and whereunder appropriate writ has been sought for issuance of writ in the nature of certiorari for quashing the order dated 03rd August, 2016, passed by the Land Reforms Deputy Collector, Ramgarh in Permission Case No. 191 of 2015-16, by which the authority in exercise of the power conferred under proviso to Section 46 (A) of the Chhotanagpur Tenancy Act, 1908 has rejected the application seeking permission for executing will. 2. The brief facts of the case, as per the pleading made in the writ petition is that the lands appertaining to Plot Nos. 798 (02 dec), 799 (29 dec), 1210 (50 dec), 1211 (54 dec), 1227 (46 dec), 1228 (63 dec), 1264 (18 dec), 1266 (49 dec), 1269 (52 dec), 1271 (25 dec), 1315 (26 dec), 1320 (67 dec), 1342 (80 dec), 1419 (40 dec), 1566 (76 dec), 1670 (41 dec), 1675 (40 dec), 1682 (34 dec), 1958 (15 dec) and 1960 (23 dec), total 20 plots, total area 8.60 acres under Khata No. 44 of Village Kother, Thana No. 288, P.S. Ramgarh, District Hazaribag have been recorded in the name of Bhikhmangwa Munda, son of Shetar Munda by caste Munda in the last cadastral Survey and Settlement Operation, 1908 and accordingly, rent receipts were being issued in the name of Bhikhmangwa Munda for the land in question. Thereafter, the land has been inherited by his son after his death, namely, Bihari Munda, who has died, leaving behind his three sons, namely, Chaman Munda, Raman Munda and Jhaman Munda and Raman Munda died leaving behind his widow, Mosomat Jhunia (the petitioner) as legal heirs and, as such, the petitioner is the grand daughter-in-law of the recorded tenant and, as such, she will be said to have inherited the landed property in view of the provision of Sections 8 and 9 of the Hindu Succession Act, since the petitioner is Class I heir of the recorded tenant, namely, Bhikhmangwa Munda. Being the legal heir, the petitioner is coming in peaceful cultivating possession over the lands of Khata No. 44 to the extent of her share, who is having a widow daughter, namely, Mosomat Lurki, who has three sons, namely, Balbir Pahan, Premnath Pahan and Roushan Pahan, who looked after the petitioner and, as such, she is desirous to execute a Will in their favour with respect to the lands of her share for which, she had made an application, seeking permission to execute a Will, which has been instituted as Permission Case No. 191 of 2015-16, in which a proceeding has been initiated and the Respondent No. 3 has put his appearance and has filed objection. The concerned authority after adjudicating the issue has come up with the conscious finding that under the Munda customary law, the female is having no legal right to execute a will in favour of the outsider, since as per the Munda customary law, the widow is supposedly getting her livelihood to be earned from the land which has been earmarked in her share and after her death, the other female members of the family would inherit the property. The said order has been challenged in the instant writ petition, inter alia, on the ground that the petitioner is not governed under the Munda customary law, rather, she is to be governed under the Hindu Succession Act, since she is a Hindu by faith, but this aspect of the matter has not been properly appreciated by the concerned authority while rejecting the aforesaid Permission case. It is the further ground, agitated by the learned counsel appearing for the petitioner that under the provision of Section 46, there is no bar in executing a Will by widow in favour of her dependent, more particularly, the daughters. According to the learned counsel for the petitioner, these aspects of the matter ought to have been considered by the authority before rejecting the Permission case for grant of sanction for executing the Will, having not done so, serious infirmity has been committed, therefore, the order is not sustainable in the eyes of law. 3. Mr. According to the learned counsel for the petitioner, these aspects of the matter ought to have been considered by the authority before rejecting the Permission case for grant of sanction for executing the Will, having not done so, serious infirmity has been committed, therefore, the order is not sustainable in the eyes of law. 3. Mr. Jayant Franklip Toppo, learned S.C. (L&C) III representing the State of Jharkhand, has submitted on the strength of the counter affidavit, wherein, inter alia, the stand has been taken that the impugned order suffers from no infirmity, since the concerned authority has refused to grant permission by looking to the customary law, which is prevailing for the Munda caste. Learned State counsel has further submitted that under the Munda caste, the customary law will prevail and the provision of Hindu Succession Act will not lie and in order to strengthen his arguments, he has put reliance on the judgment rendered in the case of Sinta Munda and others-Vs.-Junathan Munda & Others reported in 1968 (1) PLJR 215. 4. In reply, learned counsel for the petitioner has relied upon the judgment of the Hon’ble ApexCourtin the case of Madhu Kishwar & Others-Vs.-State of Bihar & Ors. reported in (1996) AIR 1864, 1996 SCC (5) 125. 5. Mr. Toppo while arguing, has disputed the applicability of the judgment rendered in the case of Madhu Kishwar & Others (Supra) by submitting that in the said judgment, there was quorum of three Hon’ble Judges, out of which two Hon’ble judges has come with the majority view, holding therein that the widow of the Munda caste will have the right to survive from the property, which she has inherited after death of her husband of her share. However, one of the Hon’ble Judges has given the dissenting view, therefore, his submission is that the ratio, which is to be looked into by this Court is the majority view and not the minority view, therefore, what have been contended by the learned counsel for the petitioner by putting reliance on the said judgment in hand is not applicable in the instant case. 6. 6. Having heard the learned counsel for the parties and on appreciation of their rival submission, the fact, which is not in dispute, is that the petitioner, who happens to be the widow of the legal heir of the original recorded raiyat and after death of the husband, she was surviving by making cultivation over the land of his own share. The petitioner is having married daughter from whom the sons/daughters are there. The petitioner has taken the plea that due to death of her husband, she is not in a position to cultivate over the said land, therefore, she has made an application seeking permission under the Provision of Section 46 of the Chhotanagpur Tenancy Act, 1908, seeking permission to execute the will in favour of her daughter but the same has been rejected by the Revenue authority on the ground that under the Munda Customary law, the widow female has got no right of inheritance and, therefore, she cannot transfer the property in favour of her daughter. Since the said order is under challenge in this writ petition, this Court deems it fit and proper first to take into consideration the provision of Section 46 of the Chhotanagpur Tenancy Act, 1908, which reads hereunder as:- “[46. Restrictions on transfer of their rights by raiyats.-(1) No transfer by a raiyat of his right in his holding or any portion thereof - (a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement,” 7. This provision has been enacted in 1908 to secure the interest of the Tribal people and for securing the interest of the Tribal people, it has been stipulated therein, that if any land has to be transferred, the permission is to be obtained by making a proper application before the Deputy Commissioner either through the gift or lease or by way of registered sale deeds or any other modes. 8. The petitioner has made an application for transferring the land by way of Will. 8. The petitioner has made an application for transferring the land by way of Will. The transfer of the landed property by way of the Will is also subject matter of Section 46 of the Chhotanagpur Tenancy Act, 1908, therefore, applicability of Section 46 of the Chhotanagpur Tenancy Act, 1908, is not in dispute so far as transfer of the land by way of executing a Will. 9. Herein, the only question has been raised by the learned counsel for the petitioner regarding the applicability of customary law, since the petitioner is belonging to Munda caste. 10. The issue of the applicability of customary law fell for consideration in a judgment, rendered in the case of Sinta Munda and others (Supra), wherein, the Hon’ble Court has been pleased to take the view, which has been resorted at paragraphs 4 and 5, which reads hereunder as :- “4. The other point urged by learned counsel was that the court below was wrong in holding that defendant no. 1, widow of Gonjhu Munda, had no right to make the gift of the suit properties. As held by the trial court, the tribal customary law of inheritance governing the Mundas is that the widow of a Munda gets life interest in the properties left by her husband and has no power to alienate the same by way of sale or gift. The book 'The Mundas and their Country' by Sarat Chandra Roy, M. A., B. L., which is recognised as a book of authority on the tribal people and their customs, bears this out. The trial court also went into this question and came to the same conclusion. The appellate court affirmed the judgment of the Trial Court. Thus, the view taken by the court that defendant no. 1 had no power of alienation of the disputed properties by way of gift by making Dan Patra in favour of the Bhoodan Yagna Committee is not in any way erroneous. 5. Learned counsel's further contention was that the (defendant no. 1) having come in possession of the properties in her right for more than 12 years had acquired title by adverse possession. In support of this he referred to the case of (1) Sham Kuer V. Dah Kuer (I.L.R. 29 Calcutta 664-P. C.), of (2) Most. Kripal Kuer V. Bachan Singh (A.I.R. 1958 Supreme Court 199). 1) having come in possession of the properties in her right for more than 12 years had acquired title by adverse possession. In support of this he referred to the case of (1) Sham Kuer V. Dah Kuer (I.L.R. 29 Calcutta 664-P. C.), of (2) Most. Kripal Kuer V. Bachan Singh (A.I.R. 1958 Supreme Court 199). I do not think, either of the two cases has any application to the facts in the present case. They were cases where a widow, who was not entitled to possession of the property, came in possession of the same without any arrangement with the heirs of the deceased to that effect. In those circumstances the widow's possession was held to be adverse against the rightful owner. In the instant case the widow of Gonjhu Munda having a life interest in the properties left by her husband is entitled to remain in possession of the property as a limited owner and as long as she is in such possession and did not assert openly the higher right than her possession cannot in any way mature to an absolute title of ownership as against the rightful heirs of the deceased who would be entitled to succeed after the death of Munda widow, to the property. In that view, the contention that the defendant no.1 had title by adverse possession before she executed the Dan Patra cannot be accepted.” 11. As referred hereinabove, the case fell for consideration wherein, the widow of one Gonjhu Munda having a life interest in the properties left by her husband is entitled to remain in possession of the property as a limited owner and as long as she is in such possession and did not assert openly the higher right than her possession cannot in any way mature to an absolute title of ownership as against the rightful heirs of the deceased who would be entitled to succeed after the death of Munda widow, to the property. In that view of the matter, it is very much clear that the widow of the Munda caste can have a right to possess the property, having no right to transfer the title so long as she is alive but the moment, she will die the property would be inherited amongst the others male members of the female. 12. In that view of the matter, it is very much clear that the widow of the Munda caste can have a right to possess the property, having no right to transfer the title so long as she is alive but the moment, she will die the property would be inherited amongst the others male members of the female. 12. So far as the reliance made upon the judgment rendered by the Hon’ble Apex Court in the case of Madhu Kishwar & Others (Supra), the same view has been reiterated in the said judgment, as has been held in the case of Sinta Munda and others (Supra). However, the majority view has laid down the proposition that under the Munda caste, the female has got no right to transfer the right and therefore, she cannot be said to be absolute title holder with a power to transfer the title in favour of others. 13. However, she will have the title over the land for earning livelihood, so long as, she is alive, but, in the said judgment, Hon’ble Mr. Justice K. Ramaswamy, as he then was, has differed with the majority view, but, it is not in dispute that if any judgment has been placed before the larger Bench and if the majority view has been given with a dissenting view then the majority view will have binding precedence and therefore, keeping that settled position of law having binding precedence, this Court is of the view that the judgment rendered by the Hon’ble Apex Court in the case in hand is not of any aid to the grievance of the petitioner. 14. The case in hand is also of similar nature wherein application for transfer of the land seeking permission to effect if, has been rejected on the ground that the petitioner by faith is Munda to be governed by customary law as held in the judgment rendered in the case of Sinta Munda and others (Supra) therefore the petitioner has no right to transfer the title as held in the aforesaid judgment. Further the petitioner is claiming to be of Hindu religion but the same being a factual dispute cannot be adjudicated in this proceeding. 15. Further the petitioner is claiming to be of Hindu religion but the same being a factual dispute cannot be adjudicated in this proceeding. 15. This writ petition has been filed for issuance of writ of certiorari and it is settled position of law that the writ of certiorari can only be issued, if the impugned order is without jurisdiction or contrary to the statutory provision or there is any infringement of fundamental right, but, these three situations are not available, warranting any interference by the Writ Court by issuance of writ of certiorari, therefore, this Court is not inclined to exercise the extraordinary jurisdiction conferred upon this Court under Article 226 of the Constitution of India. 16. In view thereof and in the entirety of the facts and circumstances, the order impugned needs no interference by this Court. Accordingly, this writ petition fails, and it is dismissed.