Bastu Charan Alias Batu vs Chitta Majhiani (Dead) And
2026 Latest Caselaw 1911 Ori

Orissa High Court

Bastu Charan Alias Batu vs Chitta Majhiani (Dead) And on 27 February, 2026

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                         SA No. 278 of 1992

        [In the matter of an appeal under Section 100 of the Code
        of Civil Procedure, 1908.
                                ---------------

        Bastu Charan alias Batu
        Charan Soren                 ......           Appellant

                                    -Versus-

        Chitta Majhiani (dead) and
        Others                     .....              Respondents

        Advocate(s) appeared in this case :-
        ________________________________________________________
           For Appellant    :Mr. R.K.Mohanty, Senior Advocate
                            with Ms. S.Mohanty, Advocate

          For Respondents:    Mr. S.Sahoo, Advocate

        _______________________________________________________
              CORAM
                   JUSTICE SASHIKANTA MISHRA

                              JUDGMENT

27.02.2026

SASHIKANTA MISHRA, J. The LRs of the original

defendant No.1 are in appeal against a confirming

judgment. The appeal questions the correctness of

judgment dated 25.09.1992, followed by decree

passed by learned District Judge, Baripada in Title

Appeal No. 50 of 1988, whereby the judgment dated

04.10.1988, followed by decree passed by learned

Subordinate Judge, Rairangpur in Title Suit No. 10

of 1995, was confirmed.

2. The suit was filed by the original plaintiff for

recovery of possession and for declaration that the

sale deeds dated 17.04.1984 executed by her mother

in favour of the defendants are invalid. It is the

plaintiff's case that one Bhagmat Majhi was the

original owner of the suit properties, who had

married Damani. The plaintiff was born out of said

marriage. Her father, Bhagmat died when she was

two years old. Her mother, Damani remarried

Dasmat Soren after death of her husband. The

plaintiff possessed her half share of her father's

property separately from her mother and she allowed

her to possess the other half till her death in 1984.

The defendants managed to get the sale deeds in

question executed by Damani in their favour in

respect of the suit property, which are invalid.

3. The defendants contested the suit by resisting

the plea of the plaintiff that she was the daughter of

Bhagmat. According to them, Bhagmat had never

married Damani and plaintiff was not his daughter

as Damani was married to Dasmath. The plaintiff is

the daughter of Dasmat and Damani. The suit

properties originally belonged to Kanda and Bastu,

who were brothers but Bhagmat was the son of

Kanda. Dasmat and four others were sons of Bastu.

The suit properties were recorded jointly in the

names of Bastu and Bhagmat in 1927 settlement

and were being possessed jointly. Dasmat died

unmarried for which his share passed on to the other

four sons of Bastu by survivorship. Damani had

never executed any sale deed in favour of the

defendants but they possessed the suit property for

about 45 years.

4. On the rival pleadings as above, the trial Court

framed the following issues for determination:

1. Has the plaintiff any cause of action?

2. Is the suit barred by limitation?

3. Is the suit not maintainable?

4. Is the suit bad for non-joinder of parties?

5. Is the suit barred by waiver, estoppel and acquiescence?

6. Is the suit barred by law of adverse possession?

7. Is the plaintiff not daughter of Bhagmat Majhi?

8. Was Damani the wife of Bhagmat and the plaintiff is their daughter?

9. Was Bhagmat the sole owner of the lands in equation and after his death his widow inherited the lands?

10. Were Balia and Kanda, natural brothers and as such they were jointly living and got the property by law of survivorship after the death of Bhagmat?

11. Has the plaintiff sole right, title and interest over the suit land?

12. Is the plaintiff entitled to the relief of reliefs claimed?

13. To what relief, if any is the plaintiff entitled?

5. After analysing the oral and documentary

evidence adduced by the parties in detail, the trial

Court found adequate evidence of the plaintiff's claim

of being the daughter of Bhagmat through Damani. It

was also found that Damani re-married Dasmat and

the defendants were his son. The trial Court further

found that Bhagmat was the sole owner of the suit

properties and after Damani's remarriage, plaintiff

being the only daughter and heir, succeeded to the

same. The plea of adverse possession set up by the

defendants was negatived. The sale deeds in question

were held invalid. On such findings, the suit was

decreed by declaring the plaintiff's right, title and

interest over the schedule land with recovery of

possession. The sale deeds in question were declared

void and inoperative and the defendants were

directed to deliver possession of the suit land to the

plaintiff.

6. Being aggrieved, the defendants carried appeal

to the District Court. The First Appellate Court

reappreciated the evidence on record vis-à-vis the

grounds of challenge to the trial Court's judgment.

As such, the First Appellate Court found that

Damani was married to Bhagmat and plaintiff being

the only daughter naturally inherited the properties

of Bhagmat. The First Appellate Court further found

that Bhagmat was separately possessing his share

which was succeeded by the plaintiff after his death

and the plea of adverse possession was also

negatived. The appeal was thus dismissed.

7. Being further aggrieved by the confirming

judgment of the First Appellate Court, the LRs of

defendant No. 1 have preferred the present appeal,

which was admitted on the following substantial

questions of law.

(a) Whether the suit property devolves upon the plaintiff & defendants after Damani's death.

(b) Whether the new relationship of Damani and Dasmat will made the defendants' possession permissive?

(C) Whether the learned Courts have erred in omitting to consider material evidence on record?

8. Heard Mr. R.K.Mohanty, learned Senior

counsel with Ms. S.Mohanty, for the defendant-

appellant and Mr. S. Sahoo, learned counsel

appearing for the plaintiff-respondents.

9. Learned Senior counsel Mr. Mohanty would

argue that both the Courts below have committed

manifest illegality in proceeding on the wrong

premise that the parties being Advasis, their custom

permits remarriage by a widow but no such custom

was either pleaded or proved. The parties being

Adivasis the old Hindu law applies to them. Mr.

Mohanty refers to Article 43 of Mulla's Hindu Law

(24th edition) of which Entry 4 names, the widow as

successor to the property of her deceased husband.

Therefore, on death of Bhagmat in the year 1946-47,

both the plaintiff as well as her mother Damani

would be the two survivors, each having half share.

According to Mr. Mohanty, the subsequent

remarriage of Damani to Dasmat cannot lead to

forfeiture of her half share of the property as

contemplated in the Hindu Widow's Remarriage Act,

1856 because the same does not apply to Adivasis.

Since succession opened in 1946-47, it is to be seen

as who were the heirs of Bhagmat at that point of

time. Both the Courts below, according to Mr.

Mohanty, proceeded on the erroneous premise that

remarriage of Damani entails forfeiture of the share

of the property inherited by her from her first

husband. No issue was framed in this regard nor

such a case was ever made out by the plaintiff.

Therefore, Damani's property, at the time of her

death in 1984, would devolve upon for all her

children namely, the plaintiff as also the defendant.

In any case, by the time of Damani's death in 1984,

the Hindu Widows' Remarriage Act had already been

repealed.

10. Per contra, Mr. S.Sahoo would argue that the

plaintiff clearly pleaded that she belongs to the

Santal community and therefore, the provisions of

the Hindu Succession Act, 1956 do not apply. The

old Hindu law relating to succession applies. The

widow as per Article 43 of Mulla has limited share

and on her death her share goes to the reversioner of

her husband. Such limited right gets forfeited

automatically by her remarriage. The defendants

have therefore no manner of right over the property

of Damani inherited from Bhagmat.

11. This Court finds that the facts of the case are

not disputed. The concurrent findings by both the

Courts below to the effect that the plaintiff is the

daughter of Bhagmat and Damani and that Damani

remarried Dasmat after the death of Bhagmat are not

to be disturbed in this Second Appeal, especially

when the evidence adduced on that score before the

learned Trial Court has not been shown to be

perverse.

12. The undisputed fact of this case is that the

parties are Adivasis belonging to Santal community

and are governed under the laws applicable to the

Scheduled Tribe community. There is also no dispute

that the defendants are the sons of Damani born

through Dasmat. Overwhelming evidence has been

laid to the effect that the plaintiff was a child, aged

about 6 years at the time of her father's death in the

year 1946-47. It is also borne out from the evidence

on record that the suit properties were originally of

Kanda and Bastu, who were related as full-blooded

brothers. Dasmat was admittedly one of the sons of

Bastu whereas Bhagmat was the son of Kanda.

Besides, both the Courts below have held that as on

the date of his death, Bhagmat was separately

possessing the suit properties from the sons of Bastu

signifying thereby that coparcenary was no longer

existing as on that date. This concurrent finding is

equally beyond the scope of being interfered with at

this stage.

13. The pertinent question is, who are entitled to

inherit the suit properties left by the deceased

Bhagmat.

Section 2(2) of the Hindu Succession Act, 1956

in absence of a specific Government Notification to

the contrary, explicitly excludes the Scheduled Tribes

from being governed under the said Act. The

inheritance of the properties belonging to the

Scheduled Tribes is ordinarily determined by the

local tribal customary law. A meticulous reading of

the available pleadings does not spell out any such

specific custom. In such scenario, as rightly held by

the learned First Appellate Court, the principles of

old Hindu Law (prior to 1956 Act) shall govern the

mode of inheritance of the properties of a male Hindu

of this community dying intestate.

14. As the pleadings suggest, the parties are

governed under the Mitakshara School of Hindu Law.

As stated above, Bhagmat died intestate in the year

1946-47 leaving behind his widow, Damani and the

sole daughter, the plaintiff. By then, the Hindu

Women's Rights to Property Act, 1937 had already

come into effect. Section 3 thereof granted limited

inheritance rights to the widow of a Hindu, known as

Hindu Women's Estate. Though the right of claiming

partition at par with a male heir was available to her

yet, no absolute right of disposition of the properties,

either by sale or by gift, except on the ground of

pressing legal necessity, was given to her. Thus, the

ordinary rule was that on her death, the property so

inherited, would pass not to her heirs but to the next

heirs of her deceased husband, called reversioners.

However, the situation would be different if the

property, so inherited, was the exclusive and

separate property of the deceased husband. The

daughter's position with refence to the inheritance of

property was, however, different during the pre-1956

era. The daughters were ordinarily excluded from

absolute inheritance since tribal customary laws

were in favour of inheritance by survivorship by male

agnates.

15. It is significant to note that despite the

Hindu Women's Rights to Property Act, 1937 having

come into effect, the Hindu Widow's Remarriage Act,

1856 had not been repealed. Section 2 of the said Act

clearly provides that a widow upon her remarriage

was to forfeit her interest (including the life estate

conferred under the Act of 1937) in her deceased

husband's property and the property, so inherited

would ordinarily pass on to the next heirs of the

deceased husband (reversioners), as if the widow was

dead. But, in the facts and circumstances of this

case, it is significant to address the issue pertaining

to inheritance of the exclusive and separate property

of the deceased male Hindu. The Supreme Court in

the case of Satrughan Isser Vrs. Sabujpari &

others (AIR 1967 SC-272) while examining a similar

question, held that on extinguishment of

coparcenary, even in absence of full-fledged partition

of the properties, the right of coparceners

(reversioners) to take the interest of the widow by

survivorship does not exist. On her death it devolves

on the nearest heirs of her husband, her daughters.

More importantly, the right of a widow or daughter to

inherit the self-acquired property (exclusive and

separate property) or share received in partition of a

Hindu male dying intestate is well recognised not

only under the old customary Hindu Law but also in

various judicial pronouncements. The Supreme

Court in the case of Arunachal Gounder (Dead) by

LRs Vrs. Ponnusamy, reported in 2022 SCC

online SC-72), while giving importance to this aspect

has held thus:

"If a property of a male Hindu dying intestate is self-acquired or obtained in partition of a coparcenary or a family property, the same would devolve by inheritance and not by survivorship and a daughter of a such a male Hindu would be entitled to inherit such property in preference to other collaterals."

16. Besides, in a recent judgement, the Apex

Court, taking note of the absence of a codified law

governing the field of inheritance of the properties of

the Scheduled Tribes in the case of Ramcharan Das

and Others Vrs. Sukhram and Others (in Civil

Appeal No.9527 of 2025) has emphasized that

exclusion of tribal daughters even from the ancestral

properties violates the constitutional right to

equality. It is observed therein that denying the tribal

female heir a right in the property not only

exacerbates gender division and discrimination but

also violates her right to equality especially when the

custom to the contrary is silent. Thus, on meticulous

analysis of the facts of the case in the backdrop of

the legal position, this court finds no error in the

concurrent findings of the both the trial court and

the first appellate Court that soon after the

remarriage of Damani with Dasmat, the rights, which

Damani had inherited being the widow of Bhagmat

devolved on the sole lineal descendant of Bhagmat,

the plaintiff. Accordingly, the substantial question

framed to that effect is answered against the

appellant.

17. The next question to be answered is as to

whether the claim of adverse possession of the

defendants is legally sustainable. It is not disputed

that after the death of Bhagmat, Damani remarried

Dasmat. As noted above, the plaintiff is held to be

the daughter of Damani through Bhagmat, who was

the exclusive owner of the suit properties. It is borne

out from the evidence on record that the plaintiff was

a child, aged 6/7 years as on the date of death of her

father that occurred in 1946-47. Evidence is ample

to the extent that the plaintiff was staying with her

mother even after the latter's marriage with Dasmat.

By operation of law, Damani forfeited her right over

the suit properties after her marriage with Dasmat.

18. As noted above, the properties devolved on

the plaintiff upon the marriage of Damani with

Dasmat. There is no iota of evidence to even indicate

that at any point of the possession of Damani or

Dasmat or both was hostile to the plaintiff and

continued for more than the statutory period. On the

contrary, it appears that such possession was

backed by the implied consent of the plaintiff, who

was then a child, thereby making the same

permissive in nature. It is well settled that permissive

possession howsoever long cannot turn to adverse

possession unless the possessor asserts any hostile

claim over such property. Thus, the findings of the

first appellate court that being the second husband

of Damani, it was natural for Dasmat to remain in

possession of the properties of Bhagmat and thereby

making their possession permissive, appear to be

reasonable. This court finds nothing to interfere

therein. Accordingly, this question is answered in

favour of the plaintiff.

19. The appellant having failed on both counts

in his attempt to demonstrate any illegality, this

Court is not inclined to interfere with the judgment

and decree of the learned first appellate court.

20. In the result, the appeal fails and is

dismissed. There shall be no order as to cost.

................................ Sashikanta Mishra, Judge

Deepak