Ismail Hansda And Ors vs Mathias Murmu And Ors
2025 Latest Caselaw 443 Jhar

Jharkhand High Court

Ismail Hansda And Ors vs Mathias Murmu And Ors on 1 July, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                  S.A. No. 309 of 2016

                     Ismail Hansda and Ors.                  ...      ...     Appellants
                                          Versus
                     Mathias Murmu and Ors.            ...        ...       Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellants : Mr. Rahul Kr. Gupta, Advocate : Mr. Niraj Kishore, Advocate : Mrs. Shobha Rani, Advocate : Mr. Surya Prakash, Advocate For the Respondents : Mr. Sudhir Kumar Sharma, Advocate

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27/01.07.2025 The learned counsel for the respondents has submitted that the entire case of the defendants throughout was that they had inherited the property as Joba Murmu had undertaken gharjamai form of marriage and such claim was totally rejected. He has also submitted that additional plea was also taken regarding adoption of Galu Hansda to justify insertion of his name in revisional record of right, but the plea of adoption was also rejected.

2. The learned counsel has submitted that it was never the case of the defendants that there is no such custom which debars daughters from inheriting property with respect to property belonging to Santhal tribe. He submits that under such circumstances, it stood admitted that parties are governed by customary law which excludes inheritance by daughter. He submits that in order to claim inheritance , the defendants claimed that since Joba Murmu had undertaken 'ghar- jamai' form of marriage, she was entitled to inheritance and further plea was taken with respect to adoption, but both the pleas were rejected by the learned courts and no such substantial question of law has been framed in this case with respect to aforesaid two findings.

3. The learned counsel has submitted that the onus was heavy upon the defendants to prove that there was a shift in following the custom and this onus has not been discharged by the defendants and in such a view of the matter, the substantial question of law, as framed ,when seen in the light of the facts and circumstances of the case, is fit to be answered in favour of the respondents.

4. The learned counsel has further referred to the following judgements:

(i) AIR 2009 Jharkhand 23 (Narayan Soren & Ors. Vs. Ranjan Murmu)

(ii) S.A. 127 of 2014 (Prabha Minz Vs. Martha Ekka and Ors.) Paragraphs 44 and 45

(iii) 2018 SCC ONLINE JHAR 1903 (Haradhan Murmu and Ors. Vs. State of Jharkhand and Ors.)

(iv) (1996) 5 SCC 125 (Madhu Kishwar and Ors. Vs. State of Bihar and Ors.)

(v) Karan Murmu v. Commissioner Santhai Pargana at Dumka, 2004 SCC OnLine Jhar 456

(vi) 2003 (3) JLJR 429 (Ishwar Tuddu and Anr. Vs. Mattu Murmu and Ors.)

(vii) Kamla Neti v. Special Land Acquisition Officer 2022 SCC OnLine SC 1694

5. The learned counsel has referred to the judgement reported in AIR 2009 Jharkhand 23 (Narayan Soren & Ors. Vs. Ranjan Murmu) which relates to the custom relating to adoption, but the custom of adoption having not been proved, the relief was appropriately granted. It is submitted that in the present case, the custom of debarring daughter from inheritance is an admitted fact.

6. He refers to the judgement reported in S.A. 127 of 2014 (Prabha Minz Vs. Martha Ekka and Ors.) paragraphs 44 and 45 to submit that the court has again observed that in every case, the claim of title is to be decided on the pleading and the proof of customary law regarding prevailing custom and accordingly every case has to be decided on its own facts.

7. The learned counsel has then referred to the judgement in the case of Haradhan Murmu and Ors. Vs. State of Jharkhand and Ors. reported in 2018 SCC ONLINE JHAR 1903 to submit that in the said

case also, this Court has taken a view that necessary study is required to be conducted to find out the shift in custom.

8. He has then referred to the judgement passed by Hon'ble Supreme Court in the case of Madhu Kishwar and Ors. Vs. State of Bihar and Ors. (1996) 5 SCC 125 and referred to the majority view of the Hon'ble Supreme Court whereby the Hon'ble Supreme Court ultimately refused to strike down the provisions of Sections 7 and 8 of Chhota Nagpur Act which was alleged to be violative of Article 14 of the Constitution of India.

9. He has further referred to the judgement in the case of Karan Murmu v. Commissioner Santhai Pargana at Dumka, 2004 SCC OnLine Jhar 456 paragraph 8 to submit that the customary law of Santhal has been recognized and it has been held that a widow cannot create a ghar-jamai.

10. He has referred to the judgement reported in 2003 (3) JLJR 429 (Ishwar Tuddu and Anr. Vs. Mattu Murmu and Ors.) and has submitted that in the said case also, it has been held that daughter cannot succeed over a property unless she has undertaken 'ghar-jamai' form of marriage.

11. Lastly, he has referred to the judgement passed by the Hon'ble Supreme Court reported in Kamla Neti v. Special Land Acquisition Officer 2022 SCC OnLine SC 1694 and has referred to paragraph 17 and 18 to submit that the matter arises out of claim of compensation under Land Acquisition Act and the daughter was deprived of the share but the Hon'ble Supreme Court refused to interfere but gave a direction to the Central Government to consider it just and necessary to withdraw the exemptions provided under the Hindu Succession Act.

12. The learned counsel has also submitted that considering the discussions made by the learned 1st appellate court, the impugned judgement does not call for any interference.

13. The learned counsel for the appellants, in response, has submitted that the Gantzer's report itself revealed shift in custom and both the parties had relied upon the Gantzer's report. He submits that accordingly the onus was on the plaintiffs to prove that the ancient

custom of depriving daughters from inheritance of property of her father was uniform, certain, continuous and compulsory. He has submitted that merely by stating that the custom was ancient was not sufficient and on the face of the Gantzer's report in order to enforce the custom as claimed by the plaintiffs, the other elements to make it an enforceable law was also required to be proved. This exercise having not been undertaken by the plaintiffs, the binding custom as per law was not proved, and therefore, the substantial question of law is fit to be answered in favour of the appellants.

14. The learned counsel for the appellants has referred to paragraph 46 of the judgement passed by Hon'ble Supreme Court in the case of Madhu Kishwar (supra) to submit that the view expressed in paragraph 46 has been concurred by all the judges and this concurrence is apparent from paragraph 5 of the judgement. While referring to paragraph 46, he submits that the Hon'ble Supreme Court has taken note of the fact that the custom amongst schedule tribe vary from tribe to tribe and religion to religion, based upon established practice prevailing in the respective regions and amongst particular tribes and therefore, it would be difficult to decide without acceptable material with respect to each tribe as to whether a customary succession is valid, certain, ancient and consistent and whether it has acquired the status of law. He has also submitted that such indication has also been given in the Gantzer's report also . In view of the aforesaid findings, the Hon'ble Supreme Court refused to give a general declaration with respect to the validity of the custom which was subject matter of consideration before the Hon'ble Supreme Court and each case was required to be considered with respect to the facts and circumstances of each case and therefore each element of binding custom, that is, uniform, certain, continuous and compulsory was required to be proved.

15. Post this case on 08.07.2025 for 'Judgment'.

(Anubha Rawat Choudhary, J.) Saurav/