Jharkhand High Court
Ismail Hansda And Ors vs Mathias Murmu And Ors on 30 June, 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
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. Rahul Kr. Gupta, Advocate
: Mr. Niraj Kishore, Advocate
For the Respondents : Mr. Sudhir Kr. Sharma, Advocate
---
26/30.06.2025 The learned counsel for the appellants has referred to the
following judgements:
"(i) S.A. No.127 of 2014 (Prabha Minz Vs. Martha Ekka
and Ors.)
(ii) 2003 SCC Online Jhar 432 (Dhani Majhi and Anr. Vs.
Ranga Majhi and Ors.)
(iii) (1996) 5 SCC 125 (Madhu Kishwar and Ors. Vs. State
of Bihar and Ors.)
2. By referring to the judgement passed in the case of Prabha
Minz (supra), the learned counsel has submitted that the substantial
question of law framed in the said case was directly related to
inheritance by female heirs under customary law and he submitted that
the said case was related to the tribals of "Oraon Caste" but while
answering the substantial question of law, this Court has taken into
consideration the manner in which the custom is required to be
established for enforcing as law. He has submitted that while
answering the question of law, the inheritance under the "Santhal" as
well as "Oraon" have been considered and it has been duly recorded in
the said judgment that book "Oraon of Chhota Nagpur" by Sri S.C.
Roy has been referred with respect to Oraon tribes and so far as
Santhal tribes are concerned, the relevant report is the Gantzer's report
has been considered .
3. The learned counsel has submitted that the inconsistency in
connection with the denial of right of inheritance to daughters have
been recorded as back as in Gantzer's report and even the court has
taken into consideration that there is inconsistency even amongst the
different judgments on the point of inheritance by daughters.
4. The learned counsel submits that the test to establish custom
capable of being enforced as law was heavy on the plaintiffs who
denied inheritance to daughter on the ground of customary law and the
basic ingredient to establish custom in terms of the judgement passed
by the Hon'ble Supreme Court reported in (2013) 4 SCC 97
(Laxmibai (Dead) through Lrs. And Anr. Vs. Bhagwantbuva (dead)
through Lrs. And Ors.) has not been established. The learned counsel
has submitted that as per the plaint, the parties are Santhal Christian
and governed by Santhal law of inheritance in connection with
inheritance of women with respect to the properties. He submits that
since in the present case, the inheritance by sole daughter is under
consideration, it is not relevant to examine the consequences of the
fact that the plaintiff claimed that they were Christians by religion.
5. The learned counsel has submitted that the general custom
debarring inheritance by daughters belonging to Santhal tribe, having
not been proved as per law, the substantial question of law is fit to be
answered in favour of the appellants. The learned counsel has also
submitted that both the courts have primarily referred to the Gantzer's
report which was relied upon by both the parties, but the
reference/reliance is selective in nature.
6. The learned counsel has also submitted that the learned 1 st
appellate court while considering the matter on the point of
inheritance has confined the case of the appellants only to the point as
to whether the daughter was married in 'ghar jamai' form. The learned
counsel has submitted that in the written statement, both the pleas
were taken by the appellants, that is, in absence of a son, the daughter
would also inherit irrespective of marriage in 'ghar jamai' form.
7. By referring to the judgement passed by this Court in the case
of Dhani Majhi (supra), the learned counsel has submitted that the
facts therein were somewhat similar and in the said case, the trial court
as well as the 1st appellate court had held that the plaintiffs had failed
to prove the custom of a married daughter being excluded from
inheritance. He has submitted that it has been held that the burden was
on the plaintiffs to establish that there was custom amongst the tribal
in question of excluding a married daughter from inheritance. He
submits that in the said case, the concerned tribe was Santhal; in the
present case also Santhal is involved.
8. With respect to the judgement passed by Hon'ble Supreme
Court in the case of Madhu Kishwar (supra), the learned counsel has
submitted that the provision of Sections 7 and 8 of Chhota Nagpur
Tenancy Act was directly under challenge being ultra vires to the
Constitution of India and a plea was raised to hold that the customary
law excluding female from inheritance was violative of the
fundamental rights and such a plea was negated. The learned counsel
has further referred to the body of the judgement to submit that it has
been clearly observed therein that each case has to be considered on
its own fact and the full facts were not placed before the Hon'ble
Supreme Court.
9. The learned counsel submits that in order to claim exclusion
from applicability of general law, the onus was on the plaintiffs to
prove such an exclusion, which the plaintiffs in the present case has
failed to prove, and therefore this appeal be allowed by holding that
the daughter would inherit the property under General Law.
10. The learned counsel has submitted that the Gantzer's report
itself reveal that there was inconsistency with respect to exclusion of
daughters from inheritance. The learned counsel submits that this
aspect of the matter with respect to Gantzer's report has not been
taken into consideration by the learned courts.
11. Learned counsel for the respondents has commenced his
argument and he has submitted that so far as judgment passed in the
case of Laxmibai (dead) through Lrs. And Anr. Vs. Bhagwantbuva
(dead) through Lrs. And Ors. (2013) 4 SCC 97 is concerned, the
same was primarily relating to the point of adoption amongst the
Hindus. He has further referred to paragraphs 3, 7 and 8 of the plaint
and has further made reference to paragraph 9 of the written statement
to submit that it stood admitted from the side of the defendants that as
per Customary law of Santhal, the female was not entitled to inherit
the paternal property except when she gets married in 'ghar-jamai'
form of marriage. He also submits that the defendants specifically
asserted in the written statement that the daughter had undergone
gharjamai form of marriage to claim inheritance, but they miserably
failed to prove such a case and the findings have attained finality as
no substantial question of law in connection with 'ghar-jamai' form of
marriage has been framed in the present case.
12. let this matter be posted for further hearing tomorrow i.e.
01.07.2025 at 10:30 a.m.
(Anubha Rawat Choudhary, J.)
Saurav/Binit
