Case at a Glance
A Scheduled Tribe widow in Surat district inherited her husband’s tenancy lands after he died issueless and later bequeathed them by a registered Will. Her half-brother sued, claiming sole ownership by survivorship and arguing that, since the Hindu Succession Act does not apply to Scheduled Tribes, she could not have made the Will. The Gujarat High Court held that no tribal custom barring a widow from inheriting or bequeathing property was pleaded or proved, and that in the absence of custom courts apply justice, equity and good conscience in favour of women’s inheritance rights. It dismissed the second appeal and asked the State to consider steps for a Central notification under Section 2(2) of the Act.
The lands, Block Nos. 51 and 366 in Taluka Mandvi, District Surat, were held on tenancy by a member of the Chaudhari Scheduled Tribe community who died issueless around 1958–59. His widow inherited them and died issueless on 15 July 1991, after executing a registered Will dated 1 July 1991 in favour of the defendant, proved through attesting witnesses including the Sub-Registrar. Her half-brother filed a suit in 2002 seeking declarations that she had no right to make the Will and that he was sole owner by survivorship, along with possession, mesne profits and an injunction.
The trial court at Bardoli (2011) rejected the survivorship claim and the challenge to the Will, granting only an injunction regarding one block; the first appellate court dismissed the appeal on 24 June 2026. In second appeal, the plaintiff’s heirs argued that the courts wrongly applied Hindu law and the Hindu Succession Act, 1956, which under Section 2(2) do not apply to Scheduled Tribes, and that restricted-tenure land could not be bequeathed under Section 73AA of the Gujarat Land Revenue Code.
The Key Question Before the Court
Where the Hindu Succession Act does not apply to a Scheduled Tribe, could a tribal widow inherit her husband’s land and dispose of it by Will, in the absence of any proved custom to the contrary?
Custom must be proved; otherwise equity favours women
Justice Maulik J. Shelat accepted that the Hindu Succession Act does not apply to Scheduled Tribes, so the question turned on custom. But no custom barring a widow from inheriting or devising property was pleaded or proved, and counsel conceded that no such evidence had been led. The widow therefore inherited the lands, which became her own property, and she could validly bequeath them. Relying on Ram Charan & Ors. v. Sukhram & Ors., (2025) 07 SC CK 0231, AIR 2025 SC 2363, the Court held that where neither custom nor statute governs, justice, equity and good conscience apply, read with Articles 14, 15(1), 38 and 46. It observed that “the Court cannot be oblivious of the fact that, in the absence of any custom of a particular tribe”, a woman’s inheritance right can be recognised.
The Will’s execution was concurrently proved. Since the husband’s elder brother was alive when the widow died and no custom supported a sister’s or brother’s claim, the plaintiff could not claim sole ownership by survivorship. The Section 73AA plea was new and could not be raised for the first time in second appeal, and the plaintiff, having been instrumental in the Will, could not complain of it. Applying Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning & Mfg. Co. Ltd., (1962) 03 SC CK 0017, no substantial question of law arose. The Court added that “it is imperative that the State Government initiate necessary steps for the issuance of an appropriate notification” under Section 2(2).
What the Court Actually Held
- Since the Hindu Succession Act does not apply to Scheduled Tribes, custom governs; but a custom excluding a widow must be pleaded and proved.
- In the absence of custom, justice, equity and good conscience apply in favour of women’s inheritance rights, following Ram Charan v. Sukhram.
- The widow validly inherited and bequeathed the lands; the half-brother’s survivorship claim failed and the Section 73AA plea was a new plea not permitted in second appeal.
- The second appeal was dismissed in limine and the decrees of 2011 and 2026 confirmed; the Registry was directed to send the judgment, through the Government Pleader, to the State department concerned for possible action on a Central notification under Section 2(2).
Why This Judgment Matters
- It protects tribal women’s property rights where no exclusionary custom is proved.
- It applies the Supreme Court’s reasoning in Ram Charan on equity and equality in tribal succession.
- It nudges the State towards a notification extending the Hindu Succession Act to Scheduled Tribes.
What Should Advocates Take Away From the Judgment?
For Tribal Families
- A widow’s right to inherit is not defeated merely because the Hindu Succession Act does not apply.
- A party alleging a custom against women must prove it with evidence.
- A registered Will proved by attesting witnesses carries weight.
For Counsel
- Plead and prove any tribal custom specifically at trial.
- Raise land-tenure objections such as Section 73AA in the trial court.
- Cite Ram Charan v. Sukhram on equity in tribal succession.
Key Takeaways
- No proved custom means no bar on a tribal widow’s inheritance.
- Justice, equity and good conscience fill the gap left by Section 2(2) HSA.
- Concurrent findings on the Will were not disturbed in second appeal.
- The State was urged to consider a Section 2(2) notification.
Frequently Asked Questions
Does the Hindu Succession Act apply to Scheduled Tribes?
Under Section 2(2), it does not apply to members of Scheduled Tribes unless the Central Government directs otherwise by notification. The Court asked the State to consider steps towards such a notification.
What governs tribal succession then?
Custom, if pleaded and proved; and in its absence, justice, equity and good conscience, which the Court applied to recognise the widow’s rights.
Why did the brother lose?
No custom supporting his claim was proved, the Will was duly proved, the husband’s elder brother was alive at the widow’s death, and his new Section 73AA plea could not be raised in second appeal.
Conclusion
The judgment refuses to presume that tribal custom excludes women. Unless such a custom is established, a tribal widow stands on an equal footing to inherit and dispose of property.
Practical takeaway: Anyone relying on tribal custom to defeat a woman’s inheritance must plead and prove that custom; otherwise courts will apply equity in her favour.
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