Jagdish (Dead) Through LRs & Ors. vs Amila Bai & Anr.

Invoking the appellate jurisdiction of this Court under Section 100 of the Code of Civil Procedure, 1908, the appellants herein/legal heirs of the original defendant have preferred this appeal challenging the judgment & decree dated 7-11-2014 passed by the First Appellate Court Additional District Judge, Uttar Bastar Kanker in Civil Appeal No.35A/2014, arising out of judgment & decree dated 17-7-2009 passed by the Trial Court Civil Judge Class-I, Uttar Bastar Kanker in Civil Suit No.3A/2005, by which the Trial Court has dismissed the suit for declaration and possession, finding no merit.

The aforesaid challenge has been made on the following factual backdrop: -

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the civil suit before the Trial Court.)

It is the case of the /respondent/plaintiff No.1 Amila herein that 21 acres of agricultural land was recorded in the name of Biju Gond at Village Kanharpuri. Biju Gond died approximately 40 years ago. After his death, the aforesaid property was divided equally amongst his five sons, and they continued to remain in possession and cultivation of their respective shares. One of the sons of Biju Gond, namely Manher, was issue-less. After his death, the agricultural land falling to his share was recorded in the name of his widow Dukhiya Bai. The particulars of the said land are as follows:

(For the sake of convenience, the aforesaid land shall hereinafter be referred to as the “suit land”.)

The further pleading of the respondent/plaintiff before the Trial Court was that,the both parties belong to the Gond community. According to the custom applicable to their community, both sons and daughters have equal rights in ancestral property. The respondent/plaintiff Amila is the daughter of Mahru, who was a son of deceased Biju Gond. The two brothers of deceased Mahru, namely Faguram and Manher, died issue-less. The name of Dukhiya Bai, widow of Manher, was recorded over the land falling to Manher's share. None of the three sons of Biju Gond, namely Fagu, Manher and Mahru, had any male issue. Therefore, the plaintiff, being the daughter of Mahru, claims to have the sole title/right over the property of Dukhiya Bai.

It is alleged that the original defendant No. 1, after the death of Dukhiya Bai in the year 1997, got his name mutated on the basis of a Will, without the knowledge of the respondent/plaintiff. According to the respondent/plaintiff, such mutation is illegal. It is further stated that the original defendant No.1 had already obtained the share/property of the sons of Khuji, the second wife of Biju Gond.

The Naib Tahsildar passed mutation order dated 27-7-2000. Against the said order, the original defendant No.1 preferred an appeal before the Court of the Sub-Divisional Officer, Kanker. In the said appeal, an order dated 28-6-2001 was passed directing that the matter be adjudicated by the Civil Court. Therefore, the respondent/plaintiff instituted a suit against the original defendant Jagdish seeking a declaration of her title/right over the suit land; seeking a declaration that the mutation in favour of the original defendant No.1 is illegal; and further seeking recovery of possession from defendant No.1, if the respondent/plaintiff is found not to be in possession of the suit land.

It is necessary to mention here that original defendant No.1 Jagdish has since died, and his legal representatives are on record as appellants.

Original defendant No.1 Jagdish has filed his written statement demonstrating the genealogy of the parties in the following manner: -

The original defendant No. 1 has stated in his written statement that he is the son of Jahjit, who was the son of Khuji; thus, he is the grandson of Khuji Gond. According to the original defendant No.1, in the Gond community, daughters do not have any right of succession in the property of their father. After the death of Biju Gond, his property devolved by succession upon his four surviving sons, namely Manher, Mahru, Rahji and Jahjit. The said four persons partitioned the property and remained in possession and cultivation of their respective shares. Manher and Dukhiya Bai were issue-less. They had kept defendant No. 1 with them. On 1-1-1994, Dukhiya got the name of defendant No.1 recorded as a sah khatadhari over her agricultural land. On 20-11-1990, Dukhiya executed a Will in favour of defendant No.1. The name of defendant No.1 was recorded over the suit land on 20-8-1997. The said order has attained finality. Therefore, according to defendant No.1, the suit filed by the plaintiff deserves to be dismissed.

The Trial Court after appreciating oral and documentary evidence available on record, framed following issues and answered the issues as under:-

Before the learned Trial Court, the plaintiff has examined herself as Amila Bai (PW-1), Jadduram (PW-2) and Pinjuram (PW-3) in support of her case. In support of her oral testimony, she has produced and exhibited seven documents, which were marked as Exhibits P-1 to P-7.

The original defendant in support of his case has examined himself as Jagdish (DW-1), Prabhuram (DW-2) and Samaram (DW-3). In support of his oral testimony, he has produced and exhibited six documents, which were marked as Exhibits D-1 to D-6.

Parties were given opportunity to adduce evidence and after completion of trial, the learned Trial Court vide judgment & decree dated 17-7-2009 dismissed the suit on the ground that the plaintiff had failed to prove her case by leading cogent and reliable evidence.

Being aggrieved by the judgment & decree dated 17-7-2009 passed by the Trial Court in Civil Suit No.3A/2005 (Amila Bai v. Jagdish and another) dismissing the suit, the plaintiff has filed appeal (Civil Appeal No.35A/2014 – Amila Bai v. Jagdish and another) before the First Appellate Court.

The learned First Appellate Court, upon consideration of the evidence and material available on record, while partly allowing the appeal, reversed the judgment and decree passed by the learned Trial Court and held that the respondent/plaintiff Amila is entitled for ½ share over the suit land along with the original defendant No.1.

This second appeal preferred by the original defendant/appellants herein was admitted on the following substantial questions of law:

Having heard learned counsel for the parties and upon perusal of the record, this Court proceeds to examine the substantial questions of law involved in the present appeal.

Mr. Parag Kotecha, learned counsel for the appellants, referring to the grounds raised in the memorandum of appeal, has advanced detailed submissions contending that both the parties belong to the “Gond Tribe” community and, therefore, the provisions of the Hindu Succession Act, 1956 are not applicable to them. It is also submitted that the learned First Appellate Court, while deciding the appeal, failed to consider the specific exclusion contained in Section 2 sub-section (2) of the Hindu Succession Act and proceeded to adjudicate the rights of the parties by applying the provisions of the said Act.

It is further contended by learned counsel for the appellants that, in view of the statutory mandate contained in Section 2 sub-section (2) of the Hindu Succession Act having been overlooked, the impugned judgment and decree passed by the learned First Appellate Court cannot be sustained in law and are liable to be set aside.

Per contra, Mr. D.N. Prajapati, learned counsel appearing for respondent No.1 herein/plaintiff, while supporting the judgment and decree passed by the learned First Appellate Court, has submitted that the same does not suffer from any illegality or infirmity warranting interference in the present appeal. Learned counsel has placed reliance upon the relevant provisions of the Central Provinces Laws Act, 1875 and contended that the said enactment governs the rights and succession of the parties in the present case. It is, therefore, submitted that the learned First Appellate Court has rightly applied the applicable law while adjudicating the rights of the parties, and the contention of the appellants regarding the applicability of Section 2 sub-section (2) of the Hindu Succession Act, 1956 is misconceived. On the aforesaid basis, learned counsel submits that the appeal deserves to be dismissed.

In this regard, reliance has been placed upon the judgments rendered by this Court in the matters of Mst. Sarwango and others v. Mst. Urchmahin and others^{11.AIR 2013 Chhattisgarh 98} and Daduram and others v. Bhuri Bai (Died & Deleted) and others^{22.S.A.No.270 of 2003, decided on 6-2-2019}.

In addition, respondent No.1 has also placed reliance upon the judgment rendered by the Supreme Court in the matter of Tirith Kumar and others v. Daduram and others^{33.Civil Appeal No.13516 of 2024 arising out of SLP (C) No. 21506 of 2019, decided on 19-12-2024}, wherein the judgment rendered by this Court in Daduram and others v. Bhuri Bai and others, has been affirmed.

Since both the aforesaid substantial questions of law are interconnected, they are being considered together.

The core issue which arises for consideration is, whether in view of the exclusion contained in sub-section (2) of Section 2 of the Hindu Succession Act, 1956, the provisions of the said Act were applicable to the parties and, consequently, whether the judgment and decree passed by the learned First Appellate Court reversing the judgment of the learned Trial Court, can be sustained?

No party has produced any documentary evidence to establish their caste or Scheduled Tribe status. However, from the record of the Trial Court and the submissions advanced by learned counsel for both parties before this Court, it emerges that appellant/defendant Jagdish and respondent/plaintiff Amila Bai belong to the “Gond Tribe” community. It further emerges from the record that neither respondent/plaintiff Amila Bai nor appellant/defendant Jagdish is a child of Dukhiya Bai, the original title-holder of the suit land. Rather, both parties are descendants of two brothers of the husband of Dukhiya Bai.

As per pleadings of both the parties, there is also no substantial dispute that, after the death of Dukhiya Bai’s husband, “Manher”, the suit land came to be inherited by Dukhiya Bai and respondent/plaintiff Amila Bai is the daughter of “Mahru”, one of Manher’s brothers, whereas appellant/defendant Jagdish is the son of “Jahjit”, the other brother of Manher.

The real controversy between the parties is confined to the nature and extent of their respective rights therein. Respondent/plaintiff Amila Bai claims exclusive title over the suit land, whereas appellant/defendant Jagdish contends that Dukhiya Bai, during her old age, was residing with him and had got his name entered in the revenue records in respect of the suit land. It is further pleaded that subsequently, Dukhiya Bai executed a Will in his favour in respect of the suit land.

The learned Trial Court, while dismissing the suit filed by respondent/ plaintiff Amila Bai, did not accept the alleged Will relied upon by appellant/defendant Jagdish as having been proved. However, the learned First Appellate Court, merely on the ground that the Will relied upon by appellant/defendant Jagdish was not proved, proceeded to hold that respondent/plaintiff Amila Bai was entitled to one-half share in the suit land, apparently proceeding on the premise that, in accordance with the principles of natural justice, she was also entitled to a share therein.

In this context, it is significant to note that there is no dispute that both the parties belong to the “Gond Tribe” community. Therefore, the applicability of Section 2 sub-section (2) of the Hindu Succession Act, 1956 requires consideration. The said provision, in clear terms, provides that:-

The Supreme Court, in the matter of Madhu Kishwar and others v. State of Bihar and others^{44.(1996) 5 SCC 125}, has held that the provisions of the Hindu Succession Act do not apply to Scheduled Tribes governed by their customary law. It is, therefore, necessary for a party claiming succession on the basis of a custom to establish the existence and applicability of such custom. In the absence of any established or proved custom governing succession, the succession has to be determined in accordance with the applicable statutory law.

In this regard, the judgments rendered by this Court in Mst. Sarwango (supra) and Daduram (supra) and by the Supreme Court in Tirith Kumar (supra), cited by respondent No.1/plaintiff Amila Bai before this Court, also indicate the same position.

Thus, it is clear that the provisions of the Hindu Succession Act do not apply to members of the Gond Tribe, a position that has also been noted by the First Appellate Court in its judgment. Accordingly, Substantial Question of Law No.(ii) is answered in the affirmative, holding that the provisions of the Hindu Succession Act are not applicable.

The aforesaid judgments unequivocally lay down that, in matters of succession, the property of members of a Scheduled Tribe devolves in accordance with their customary law and, in the absence of an applicable custom, the matter is governed by the provisions of the Central Provinces Laws Act, 1875. The relevant provision of the aforesaid Act are reproduced herein-below:

Even if the matter is examined in the light of the submissions advanced by respondent No.1/plaintiff and the judicial precedents relied upon, it is particularly noteworthy that respondent No.1/plaintiff Amila Bai was required to establish that, under the customary law governing their community, the property of a paternal aunt (Dukhiya Bai) devolves upon her niece (respondent No.1/plaintiff). It was, therefore, incumbent upon respondent No.1/plaintiff to plead and prove the existence of such a custom prevailing in their community.

The learned First Appellate Court, merely on the ground that the Will relied upon by original defendant No.1 Jagdish was not proved, proceeded to hold that one-half share in the suit land devolved upon respondent No.1/plaintiff Amila Bai. In doing so, the learned First Appellate Court disregarded the applicable statutory provisions and arrived at a conclusion unsupported by a proper determination of the rights of the parties. It neither examined the customary law governing succession between the parties nor considered the legal basis on which respondent No.1/plaintiff Amila Bai alone was entitled to claim a share in the suit land.

Even if the suit land was not held to belong to appellant/defendant Jagdish under the alleged Will, it was necessary to examine the manner in which the property inherited by Dukhiya Bai from her husband devolved and whether the other brothers of her husband, or their respective successors, also had any subsisting rights therein. The learned First Appellate Court failed to undertake this essential examination before granting respondent No.1/plaintiff a one-half share in the suit land. The suit land belonged to Biju Gond, and other legal heirs of Biju Gond were also alive. This fact is evident from paragraph 8 of the cross-examination of Amila Bai (PW-1), wherein she admitted that Jahji and Rahji had not asserted any claim in respect of the land of Manher and that she had not impleaded them as parties to the suit. Thus, the testimony of Amila Bai (PW-1) itself clearly indicates the existence of other legal heirs of Manher (husband of Dukhiya Bai) who were not impleaded as parties to the suit.

Thus, the non-proof of the Will relied upon by the appellant/ defendant, by itself, could not lead to the conclusion that the suit land necessarily devolved upon respondent No.1/plaintiff Amila Bai, daughter of brother of deceased Dukhiya Bai’s husband. The question was required to be examined with reference to the legal position governing succession, including the applicable custom, if any, the other relevant circumstances appearing from the record, and the persons who were necessary parties to the suit.

The learned First Appellate Court ought to have first examined whether any such customary rule of succession had been pleaded and established by respondent No.1/plaintiff Amila Bai, under which, notwithstanding the existence of other paternal relations of the deceased, including her brothers and their children, the entire interest in the suit land would devolve exclusively upon respondent No.1/ plaintiff. However, the learned First Appellate Court failed to consider this aspect of the matter.

This was all the more necessary because, from the evidence adduced by both parties, it stands established that the suit land originally belonged to Biju Gond, who had five sons. Respondent No.1/plaintiff is the daughter of Mahru, one of those sons, whereas original defendant No.1 Jagdish, is the son of Jahjeet, another son of Biju Gond, and Dukhiya Bai was the wife of the third son Manher. In such circumstances, the presence of all persons having a potential interest in the suit land was necessary for proper adjudication of the dispute; alternatively, in their absence, specific pleadings were required to explain the basis on which respondent No.1/plaintiff alone was entitled to claim the suit land. However, no such specific pleading is shown to have been made and this material aspect was overlooked by the learned First Appellate Court.

In the matter of Santosh Hazari v. Purushottam Tiwari (deceased) by LRs^{55.(2001) 3 SCC 179}, the Supreme Court has held that the judgment of the First Appellate Court must reflect the conscious application of mind and record findings supported by reasons. Where doubt arises as to whether the First Appellate Court has properly discharged its appellate function, such doubt itself may give rise to a substantial question of law. Similarly, in the matter of Azgar Barid (dead) by Legal Representatives and others v. Mazambi alias Pyaremabi and others^{66.(2022) 5 SCC 334} the Supreme Court has held that a perverse approach adopted by the First Appellate Court in arriving at its findings may give rise to a substantial question of law.

In the present case, such infirmity is clearly discernible, as the learned First Appellate Court has reversed the findings of the Trial Court without duly considering the applicable legal requirements and the material aspects of the evidence on record.

The learned First Appellate Court ought to have examined whether respondent No.1/plaintiff had discharged her burden of pleading and proving the customary rule of succession and whether all necessary parties had been impleaded, instead of proceeding merely on the non-proof of the Will. Having overlooked these essential legal requirements, the learned First Appellate Court has failed to determine the devolution of the suit land in accordance with law. The impugned judgment, therefore, warrants interference in the present second appeal.

In that view of the matter, both the substantial questions of law are answered in favour of the appellants herein/defendants. Consequently, judgment & decree dated 7-11-2014 passed by the First Appellate Court Additional District Judge, Uttar Bastar Kanker in Civil Appeal No.35A/2014, are hereby set-aside and judgment & decree dated 17-7-2009 passed by the Trial Court Civil Judge Class-I, Uttar Bastar Kanker in Civil Suit No.3A/2005, are affirmed.

In the result, the second appeal stands allowed.

Decree be drawn-up accordingly.