Miss Hage Yalyo Dai and Another vs Shri Hage Tabin

B.L. Hansaria, J.—The parties in this proceeding are simple tribals of Arunachal Pradesh. They have been fighting for the ownership of a paddy field known as "Mudobogo Aji". It is a pity that despite the Village Council having decided twice that the land should go to Hage Tabin, the Plaintiffs have not reconciled to this decision of the village authority. To allow the tribals to be governed by their age old customs, this Court would be slow in interfering with a matter which has been decided by the Village Council after considering the views of all concerned. The confidence of the pimple in village authority and council would be shaken if their decisions are set aside for not very convincing reason. After having heard the learned Counsel of the parties at length we have the come that the decision of the Village Council should be maintained by us.

To appreciate the background which had led the Village Council to decide the matter in favour of Hage Tabin, we may briefly note the facts. The following geneology would explain the relationship between the parties :

It is an admitted position that the "Mudobogo Aji" belonged to Hage Tage as his self acquired property. The case of the Plaintiffs is that this paddy land was gifted to their mother Hage Yase at the time of her marriage as Hage Tage had do ornaments to give which are required to be given at the time of marriage as per custom. The Plaintiffs have further averred that to satisfy the claim of Hage Tabin a cow had been a given to him. The case of Hage Tabin however in that the cow was made over to him as a bridal price. When the matter was being heard by the Village Council both the parties had agreed that the persons who were present at the time off the of the cow should be examined and their version would be accepted as true. This led the Village Council to depute some persons in two groups to ascertain the views of Puran Tajyung and Hage Tajyung who were present at the time of giving over of the cow. Of the two groups, one was to ascertain the views of Puran Tagyung and the other of Hage Tajyung. These groups reported to the Village Council that a middle size cow was given to Hage Tabin for bridal price. The matter Should have rested there as the claim of Hage Tabia over the land was really not in dispute as the Plaintiffs had themselves taken the stand that a cow had been given to Hage Tabin in lieu of his claim for the paddy field; But then the matter was taken again before the learned Deputy Commissioner who by his impugned judgment has decided the matter in favour of the Defendant-Respondent. In coming to this decision, learned Deputy Commissioner has referred to Apatani custom to know about which he examined S/Shri Taso Sala, Chairman, Hari Village Council; Hage Jarbo, ASM and Dasu Tajang, ASM. All of there stated that ancestral landed property could not go to female but only to male and in absence of any direct male heir it would go to the nearest male relative. A perusal of the impugned order, however, shows that so far as the rival case of the parties relating to the purpose for which the cow was given, the learned Deputy Commissioner could not come to any definite finding. We would, however, think that in view of what bad transpired before the Village Council, the cow must be taken to have been given as a bridal price.

As to the Apatani Custom, there cannot be any doubt in view of the statements pf the Village elders who were examined by the teamed Deputy Commissioner. We also find at page 125 of the Gazette of India, Arunachal Pradesh, Subansiri District (1981) published by the government of Arunachal Pradesh that as a matter of general principle, right of inheritance to property devolves through male members of the family. In a research work undertaken by the Law Research Institute, Eastern Region, Guwahati, it has been stated in the chapter Succession and Inheritance in "The, Customary Laws and Practices of the Apatani of Arunachal Pradesh at page 63 that according to Apatani custom, the eldest son always inherits the ancestral landed property. If there is no sod, then the ancestral property will go to father''s nearest male relative on the male side. In no case the ancestral land be passed on to the daughter even in the absence of male issues."

This being the position of the customary law, it has to be seen whether Hage Tabin could have inherited the land in question. For this purpose it has to be first decided whether the paddy land was ancestral property in the hand of the Hage Yase. It is contended by Shri Goswami that the paddy land having been gifted to Hage Yase by her father the same cannot be regarded as ancestral property in her hands. Learned Counsel has urged that were a gifted property is received by a son from his father the same would not become ancestral property in the hands of donee simply by reason of the fact that the donee got it from his father or ancestor. This was laid down in C.N. Arunachala Mudaliar Vs. C.A. Muruganatha Mudaliar and Another, We have three observations to make on this decision. The first is that this case has dealt with Hindu Law and that too concerning Mitakshara family. Secondly, this decision is concerned with the right of a son over property gifted by his father. Thirdly, even as per this decision the determining factor shall be the will of the grantor. The parties at hand are not governed by Hindu Law. Then we are concerned with the right of a daughter ever the gifted property Further, the tribal law may not be burdened with the difficult task of gathering the intention of the grantor from various surrounding circumstances. We do not, therefore, think if we will be justified in Introducing technicalities of Mitakshara Law into the law of simple tribal folk of Arunachal Pradesh. The law for them has to be simple which, however, would say subject to the custom and practice hallowed by immemorial use, As for the tribals at hand, we would say that any property received by a son from his father should be taken as ancestral property in his hand. The same should be the position when a gifted property is received by a daughter. We do not think if we would be justified in this regard to distinguish between a son and a daughter. May we also say that from the stand taken by the parties there is nothing to doubt that they bad treated the paddy land in question as ancestral property because this alone explains the contention of (.he Plaintiffs that a cow had been given to Hage Tabin to satisfy his claim over the land.

The next question is whether Hage Tabin can be regarded as male relative of Hage Yase. Shri Goswami has urged that there is no definition of the word ''relative'' and as such it cannot be held for definite that Hage Tabin was the, only male relative of Hage Yase or, ''for that matter, of Hage Tage. It has been contended by Shri Goswami by referring to Section 27 of the Indian Succession Act that for the purpose of succession there is no distinction; inter alia, between those who ate related to a person through his father and those who are related to him through his mother. From the materials on record or from the case of the parties we have nothing before us to suggest that any other male relative except Hage Tabin was claiming the paddy field in question. The contest throughout has become to who of the two contenders, namely Hage Tavin on one hand, and Miss Yalyo and Smt. Huge Yasung on the other (who are the, two daughters of Hage Yase) should receive the property. The fight, therefor, being confined to these set of person, we should not enlarge the arena by bringing in other male relatives even if there be any. In so far as the definition of the word ''relative'' is concerned, we do not propose to give any exhaustive definition. We are interpreting customary Saw which has to be upheld by us if the same be unreasonable, or opposed to public policy or statute. From the case put ap by the Plaintiffs we are perfectly satisfied that Hage Tabin was a male relative of Hage Tage because even a cew had beet given to bin as bridal price, In any case, it cannot be doubted that a cousin would be relative, As there of nothing before us to show that there was any male relative of Hage Tabin over " Mudobago Aji" was rightly upheld.

This is however not all as the Apatani custom requires that in case where a male relative acquires any land from female relative, the male relative is under obligation to maintain and support the female relative from the land thus acquired by him. In acceptor; this custom the learned Deputy Commissioner has ordered in the impugned judgment that the Defendant will give four baskets paddy (locally called ''pura'') to the Plaintiffs from each harvest from the said paddy field. It has, however, been added that this annual payment would continue until and unless Hage Tabin discharges his obligation at one time by giving a cow. Shri Goswami has urged that giving of a cow would hardly maintain the Plaintiffs. From the impugned judgment or from the material placed before us it cannot be held that the custom in this regard is that a cow alone has to be given to maintain the female relatives. We, therefore, modify this part of the impugned judgment by saying that the Defendant-Respondent shall give four baskets (pura) of paddy to the Plaintiffs from harvest from the concerned paddy field till the life time of the Plaintiffs. We make it clear that paddy shall be delivered to the surviving Plaintiff in case of death of one. In case the Defendant would fail to deliver paddy as a fore said for three consecutive years'' harvest, the land would revert to the Plaintiffs.

The petition is therefore, dismissed by upholding the impugned judgment passed by the learned Deputy Commissioners subject to the modification mentioned above. In the facts and circumstances of the case we leave the parties to bear their own costs.

Before parting may we say that we have not found any record of the evidence taken by the learned Deputy Commissioner. We do think that some record of the evidence must be kept-may be summary of it.