Smt. Sandhya Rekha Lakra vs Unknown
2021 Latest Caselaw 4710 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            Second Appeal No. 108 of 2013

 Smt. Sandhya Rekha Lakra                    ....     .... Appellant
                      Versus
1(a). Jayant Kundan Dadel
1(b). Subham Dadel
1(c). Pragya Roshni
2. Puna Roba
3. Deputy Commissioner, Ranchi
4. Amit Renu Purti
                                            ....    ....   Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant : Mr. Manjul Prasad, Sr. Advocate : Mr. Baban Prasad, Advocate For the Respondents : M/s Raj Nandan Sahay, Sr. Advocate Yashwardhan, Kirtivardhan, Ritesh Singh, Vishnu Prabhakar Pathak, Advocates

C.A.V. ON 24.11.2021 PRONOUNCED ON 09 / 12 / 2021

1. Appellants/defendants have preferred the instant appeal against the judgment of affirmation in appeal of the Judgment and Decree of the trial Court.

2. The plaintiffs filed the suit for declaration of title and recovery of possession with respect to 5 katha of land and house constructed over it over southern portion of M.S. Plot No. 564, Holding No. 174 under Ranchi Municipal Corporation. The plaintiff's claim the suit property which stands recorded in the name of Peter Christian also known as Patras Christian the father of the original plaintiffs who have constructed a house over it. The plaintiffs are by caste Oraon and that Peter Christian died leaving behind his four sons and four daughters. As per Oraon customary law after the death of Peter Christian his entire property devolved upon his four sons and as such the plaintiffs being one of the recorded owner became the owner of the suit property. Out of the four daughters, Annee Minz married to John Minz and was survived by two sons Bimal Minz and Erastus. Bimal Minz was married to Keroline Minz and out of their wedlock two daughters namely Sandhay Rekha Lakra and Renu Purty were born who have been impleaded as the defendant No.1 and 2 in the original suit. On the request of Bimal Minz the present suit property was handed over to him for residential purpose on the condition that he shall vacate the same as and when required. In the year 1990 there was

amicable partition between the heirs of Peter Christian and southern half of Plot No. 564 measuring 319 karies was allotted to the share of the plaintiff and Northern half was allotted to the share of Biraj Roba. The plaintiff claims that the suit property fell in his exclusive share Bimal Minz who died in the year 1980 and was survived by his two daughters were the present defendants and when the plaintiff requested them to vacate the full suit property they refused to do the same. A SAR case number 74/91 was filed by the plaintiff which was finally dismissed on the ground that the land was not raiyati/agricultural land rather the same was Municipal Chapparbandi and hence Section 71A of the Chhotanagpur Tenancy Act was not applicable.

3. The main plea of defence is that parties are Christians since several generations and do not practice the customs of Oraon Community and, therefore, Oraon Customary Law of inheritance will not be applicable, rather they will be governed by the provisions of Succession Act and therefore daughter through whom the defendants are claiming also have equal rights in the property of the father. An alternative plea of adverse possession has also been pressed into service.

4. On the pleadings of the parties the following main issues were framed by the trial court:

i. Whether the parties to the suit are members of scheduled tribe be- longing to Oraon Community and in the matter of inheritance and succession they are governed by their own customary law or Indian succession act?

ii. Whether the original plaintiff J.C. Roba had allowed Bimal Minz and his wife Caroline Minz to occupy the suit premises on lease and licence basis?

5. Both the Courts of fact have answered these issues in favour of the plaintiffs and against the defendant. Relying on the decision of the apex court reported in AIR 1996 SC 1864 it has been held by the first appellate court that intestate succession among tribals are neither governed by Hindu Succession Act nor by the Indian Succession Act nor by the Shariat Law. The later Court below held that they were governed by their customary law. On factual aspect the plea of adverse possession was also not admitted and consequently the appeal was dismissed.

6. Admittedly both the sides claim the right and title over the suit property through their common ancestor Peter Christian. There is no dispute with regard to the genealogy. The plaintiff is the heir from his son

side and defendants are descendants from the daughter side.

7. The entire case turns on the pivotal question whether the parties are governed by tribal customary law of succession or by the Indian Succession Act?

The plaintiffs claim themselves to be governed by Oraon customary law, whereas the defendants claim themselves to be governed by Christian Law of succession that is Indian Succession Act.

The legal status of Oraon tribal on conversion to Christianity and its implication on inheritance and succession is no longer res integra. The question has been settled by a long line of judicial precedents that in view of Notification No. 550 dated 3-5-1913 read with Notification No. 2563-J dated 08-12-1931 tribals are exempted from the Indian Succession Act. The Patna High Court in :

Kartik Oraon v. David Munzni, 1963 SCC OnLine Pat 78 : AIR 1964 Pat 201 held that

17. The contention on behalf of the appellant, however, is that, after embracing Christianity, they ceased to be Oraons and, therefore, they could not come within the meaning of 'Scheduled Tribes' and, as such, they were not entitled to contest the seat reserved for Scheduled Tribes. It has, therefore, to be seen whether the two respondents ever ceased to be Oraons on account of change of religion by embracing Christianity.

18. "Tribe" has been defined in Encyclopaedia Britannica, Volume 22, 1961 edition, at page 465, by W.H.R. Rivers as "a social group of a simple kind, the members of which speak a common dialect, have a single government, and act together for such common purposes as "warfare". Other typical characteristics include a common name, a contiguous territory, a relatively uniform culture or way of life and a tradition of common descent. Tribes are usually composed of a number of local communities, e.g., bands, villages or neighbourhoods, and are often aggregated in clusters of a higher order called nations. The term is seldom applied to societies that have achieved a strictly territorial organization in large states but is usually confined to groups whose unity is based primarily upon a sense of extended kinship ties. It is no longer used for kin groups in the strict sense, such as clans."

19. As already observed, the case of the appellant is that two respondents have nothing to do with the animistic faith and tribal way

of life and they did not follow the manners and customs of the tribes and have no affinity nor any common interest, defence or aspirations with or for the tribal people and that, in order to be classed as a scheduled tribe, a person must have social affinity with the tribes, problems of common interest, aspirations and defence and must profess the tribal religion (animism) and follow the tribal way of life. In reply to the above allegation, the respondent, in his written statement, stated that both the respondents were and are members of the Oraon tribe which has been specified as a scheduled Tribe in the State of Bihar under the Constitution (Scheduled Tribes) Order, 1950 and that having anything to do with the animistic faith and tribal way of life was no ingredient of membership of Scheduled Tribes within the meaning of the said Order. It was further stated that many members of various Scheduled Tribes, professing the Christian faith, have contested Parliamentary and Assembly seats which were reserved for members of Scheduled Tribes in the first, second and third general elections in this country and the successful contestants among them served their full terms as members of the respective legislature without any challenge, and that, as a matter of fact, respondent No. 2 had successfully contested his particular reserved seat in the general election held in 1957 and he served as a member of the Lok Sabha for the full term till its dissolution on the eve of the general election of 1962. Jharkhand High Court in Junas Amrit Theophil Tirkey v. Anandini Tigga 2011 SCC On Line Jhar 817

12. Thus, if certain provisions of an Act have no application in any scheduled area prior to commencement of Constitution of India then same will not apply even after commencement of Constitution of India unless a notification issued by Governor directing that the said Act will henceforth apply in the scheduled area. In the instant case, as noticed above, Oraons and others tribes are exempted from the certain provisions of Indian Succession Act, 1925 by notification issued under Section 3 of the Indian Succession Act, thus unless another notification issued by the Governor under Clause 5(1) of 5th Schedule of the Constitution of India, or under Section 3 of Indian Succession Act, 1925, the same will not apply in the scheduled area i.e. in the district of Ranchi. Nothing has been brought on record to show that Governor of

unified Bihar and/or Governor of Jharkhand issued any notification under Clause 5(1) of 5th schedule of Constitution of India or under Section 3 of Indian Succession Act, 1925 directing that the provisions of Indian Succession Act, 1925 henceforth apply to Oraon and other tribes of the district of Ranchi. Thus, I hold that Oraons and other tribes mentioned in notification No. 550 dated 3-5-1913 read with notification No. 2563-J dated 8-12-1931 are exempted from the Indian Succession Act. Thus, Sections 276 and 299 of Indian Succession Act, 1925 have no application in the case of Oraon. Accordingly, this probate case is not maintainable.

In view of the settled law on the point, I do not find any substantial question of law to be involved in the case so as to interfere with the concurrent finding of fact recorded by the learned Court below. This appeal is devoid of merit and is accordingly dismissed at the admission stage itself.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 9th December, 2021 NAFR / AKT