Smt Shantabhai Narayuan Warkhade vs Bhaiyalal Mara Uikey And Another
2018 Latest Caselaw 194 Bom

243-J-SA-630-04                                                                            1/7


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                         SECOND APPEAL  NO.630 OF 2004


Shantabai w/o Narayan Warkhade 
Aged 60 years, Occupation : Cultivator, 
R/o Katangikala, Gondia                                       ... Appellant. 

-vs- 

1.  Bhaiyalal s/o Mara Uikey
     Aged about 59 years 
    (Dead) Thr. Legal Heir 

1(A)  Bhaulal s/o Bhaiyalal Uike, 
         Aged major, Occ : Agriculturist, 
         R/o Karanja, Tah. And Dist. Gondia. 

2.  Surajlal s/o Mara Uikey,
     aged about 57 years, 
     Both cultivators and R/o village 
     Karanja, Tah. and Dist. Gondia.                          ... Respondents.  
     

Shri S. K. Pardhy, Advocate for appellant. 
Shri D. V. Mahajan, Advocate for respondent. 

                                 CORAM  :  A. S. CHANDURKAR, J. 

DATE : January 09, 2018.

Oral Judgment :

The original plaintiff has filed the present Second Appeal as the

suit for partition and separate possession filed by her has been dismissed and

the said decree has been confirmed by the appellate Court.

As per the plaint averments one Mara Uikey was the common

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ancestor. He expired in the year 1971. He was survived by his widow, two

sons and a daughter Rayabai. The plaintiff is a grand-daughter of Mara

Uikey and the daughter of Rayabai. The plaintiff's mother expired in the

year 1981 and the plaintiff being the only heir filed aforesaid suit for

partition and separate possession. The brothers of Rayabai were arrayed as

defendants. The plaintiff claimed entitlement on the ground that the parties

were governed by Hindu law. In the written statement a stand was taken

that the parties were "Gond" and hence being members of Scheduled Tribe,

Hindu law was not applicable to them. It was further pleaded that in the

Gond community daughters were not entitled to the share in the estate and

hence the plaintiff was not entitled to claim partition.

2. After the parties led evidence, the trial Court by its judgment

dated 25/09/2000 held that the parties being "Gond" Scheduled Tribe, they

were not governed by provisions of Hindu Succession Act, 1956 (for short,

the said Act). It further held that even as per customary law, the plaintiff

was not entitled for any share in the property. The suit was accordingly

dismissed. The first Appellate Court confirmed this judgment and dismissed

the appeal.

3. The following substantial question of law was framed while

admitting the Second Appeal :

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" Whether the appellate Court was justified in rejecting the claim of the appellant/plaintiff when the appellate Court arrived at a conclusion that the plaintiff was a Hindu, merely by holding that the plaintiff had failed to prove instances in the Gond community of allotting any property to the sisters and daughters ?

4. Shri S. K. Pardhy, learned counsel for the appellant/plaintiff

submitted that the first appellate Court in paragraph 11 of its judgment had

held that the parties to the dispute were Hindus and therefore as per

provisions of the said Act, the suit for partition ought to have been decreed.

It was submitted that the bar as laid down by provisions of Section 2(2) of

the said Act would not come into operation. The evidence on record was

sufficient to come to the conclusion that the parties were not following the

customs relating to "Gond" community. Relying upon judgment of the

Honourable Supreme Court in Labishwar Manjhi vs. Pran Manjhi and ors.

(2000) 8 SCC 587 as well as the judgment in Laxmi Narayan Tudu alias

Lakshmi Narayan Manjhi and anr. AIR 2004 Jharkhand 121, it was

submitted that the parties being Hinduised they were governed by the

provisions of the said Act. It was therefore submitted that the plaintiff was

entitled for a share in the property.

5. Shri D. V. Mahajan, learned counsel for the respondent-defendant

supported the impugned judgment. According to him the pleadings in the

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plaint were not sufficient to contend that the parties were not governed by

customary law. On the contrary the evidence on record indicated that those

customs were still being followed. There was no evidence on record to come

to the conclusion that after giving up the practices of Gond community, the

parties were following Hindu customs. He referred to the provisions of

Section 48 of the Evidence Act and submitted that the plaintiff or her

witnesses did not lead any sufficient evidence on the basis of which any

relief could be granted to her. There was also no evidence to come to the

conclusion that as per customary law a daughter was entitled to ½ share in

the suit property. In support of his submissions, learned counsel placed

reliance on the decision in Madhu Kishwar and ors. v. State of Bihar and

ors. AIR 1996 SC 1864 and Second Appeal No.143/2004 (Ganeshsingh

Uttamsingh Thakur and ors. vs. Premsingh Narayansingh Thakur and

ors.) decided on 05/09/2017.

6. I have heard the learned counsel for the parties at length and I

have perused the records of the case. In the plaint it has been pleaded in

paragraph 2 that the parties to the suit were governed by Hindu Law. In the

written statement this has been denied and it has been asserted that the

plaintiff as well as the defendants were Gond by caste and Hindu Law was

not applicable to them. The plaintiff examined herself at Exhibit-39. She

stated that the parties belonged to Gond Scheduled Tribe and in their

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community the son and daughter were entitled to equal share in the

ancestral property. In her cross-examination she stated that the parties were

governed by the provisions of the said Act. The plaintiff examined another

witness Ramchandra Madavi at Exhibit-43. He deposed that as per

customary practice, on the death of the father, the son and daughter were

entitled to equal share in the property. In his cross-examination he admitted

that he was not present at any partition in his community. He had not

attended any marriage in the community. He was not aware about the

practices in his community. Another witness examined was Ramsingh

Madavi at Exhibit-46.

The defendant No.1 was examined at Exhibit-49. In his cross-

examination he stated that the marriage ceremonies as well as last rites in

their community were performed as per old practices. Another witness

Jaggulal at Exhibit-51 also stated that old practices were being followed in

the community.

7. As per provisions of Section 2(2) of the said Act, the provisions of

the said Act do not apply to members of any Scheduled Tribe which has been

notified under Article 366 of the Constitution of India. It is not in dispute

that Gond community has been recognized as a Scheduled Tribe. The

exception to the aforesaid provision has been carved out and recognized in

the judgment in Labishwar Manjhi (supra). It was held therein that if the

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parties originally belong to a Scheduled Tribe but they are Hinduised and

follow Hindu traditions then the provisions of the said Act would apply to

them. In said case a categorical finding of fact had been recorded that the

parties therein were following customs of Hindus and not the customs of the

Santhal tribe. In Laxmi Narayan Tudu (supra) a similar finding of fact was

recorded by the trial Court and the appellate Court that the parties had been

sufficiently Hinduised and therefore were governed by Hindu Law in the

matter of inheritance and succession.

8. The question whether parties were Hinduised despite belonging

to a Scheduled Tribe is a question of fact. Same has to be determined on the

basis of evidence led in that regard. Perusal of the entire evidence on record

indicates that the same is not sufficient to come to the conclusion that the

parties had given up customs and traditions of Gond community and were

thereafter following Hindu traditions and customs. Mere contention that

provisions of the said Act would be applicable as the parties were Hinduised

would not be sufficient. The observations of the first appellate Court in

paragraph 11 of the judgment where it has been stated "However, it is

nobody's case that they are not Hindus" cannot take the case of the plaintiff

any further. Whether the parties are Hinduised is a question to be

determined on the basis of evidence on record. The evidence on record is

found to be insufficient to come to that conclusion. When the defendants

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had come up with a specific defence that the parties belonged to Gond

community and provisions of the said Act were not applicable, it was

incumbent upon the plaintiff to have led sufficient evidence that would have

enabled the fact finding Courts to record a finding that the parties were

sufficiently Hinduised. Same is not the case here. Hence no fault can be

found with the judgment of the Appellate Court when it affirmed the

dismissal of the civil suit.

9. The substantial question of law is answered by holding that the

Appellate court was justified in rejecting the claim of the plaintiff for

partition and separate possession especially when the plaintiff had failed to

prove instances in the Gond community of allotting property to daughters.

As a result of this answer, the Second Appeal stands dismissed with no order

as to costs.

JUDGE

Asmita