Madhu Kishwar
& Ors Vs. State of Bihar & Ors [1996] INSC 561 (17 April 1996)
Ramaswamy,
K.Ramaswamy, K.Kuldip Singh (J) Punchhi, M.M. K. Ramaswamy, J.
CITATION:
1996 AIR 1864 1996 SCC (5) 125 JT 1996 (4) 379 1996 SCALE (3)640
ACT:
HEAD NOTE:
WITH Write
Petition (C) No.219 of 1986
These
two writ petitions raise common question of law:
whether
female tribal is entitled to parity with male tribal in intestate succession?
The first petitioner is an Editor of a Magazine 'Manushi' espousing the causes
to ameliorate the social and economic backwardness of Indian women and to
secure them equal rights. Petitioner Nos.2 Smt. Sonamuni and 3 Smt. Muki Dui
are respectively widow and married daughter of Muki Banguma, Ho tribe of Longo
village, Sonua Block, Singhbhum District in Bihar State. The petitioner in Writ
Petition No.219/86, Juliana Lakra is an Oraon Christian tribal woman from Chhota
Nagpur area. They seek declaration that Sections 7, 8 and 76 of the Chhota Nagpur
Tenancy Act, 6 of 1908, (for short, the 'Act') are ultra vires Articles 14, 15
and 21 of the Constitution of India. They contend that the customary law
operating in the Bihar State and other parts of the country excluding tribal women from
inheritance of land or property belonging to father, husband, mother and
conferment of right to inheritance to the male heirs or lineal descendants
being founded solely on sex is discriminatory. The tribal women toil, share
with men equally the daily sweat, troubles and tribulations in agricultural
operations and family management. Their discrimination based on the customary
law of inheritance is unconstitutional, unjust, unfair and illegal. Even usufructuary
rights conferred on a widow or an unmarried daughter become illusory due to
diverse pressures brought to bear brunt at the behest of lineal descendants or
their extermination. Even married or unmarried daughters are excluded from
inheritance, when they were subjected to adultery by non-tribals; they are
denuded of the right to enjoy the property of her father or deceased husband
for life. The widow on remarriage is denied inherited property of her former
husband. They have elaborated by narrating several incidents in which the women
either were forced to give up their life interest or became target of violent
attacks or murdered. Petitioner Nos.2 and 3 in the first writ petition sought
police protection for their lives and interim directions were given.
When
this court has taken up the matter for hearing, in the light of the stand of
the respondents taken at that time to suitably amend the Act, by order dated December 16, 1986, the case was adjourned with the
hope that the State Government would suitably amend Sections 7 and 8 of the
Act.
By
further order dated August
6, 1991, this court
after being apprised of the State Government constituting a Committee to
examine the desirability to amend the Act giving equal rights of inheritance to
women, further adjourned the hearing awaiting the report of the Committee.
The
State-level Tribal Advisory Board consisting of the Chief Minister, Cabinet
Ministers, legislators and parliamentarians representing the tribal areas, met
on July 23, 1988 and decided as under:
"The
tribal society is dominated by males. This, however does not mean that the
female members are neglected A female member in a tribal family has right of
usufruct in the property owned by same is the property of her husband after the
marriage . However, she does not have any right to transfer her share to any
body by any means whatsoever. A widow will have right to usufruct of the
husband's property till such time she is issueless and, in the event of her
death the property will revert back to the legal heirs of her late husband. In
case of a widow having offspring the children succeed the property of the
father and the mother will be a care taker of the property till the children
attain majority . The Sub-Committee also felt that every tribal does have some
land and in case the right of inheritance in the ancestral property is granted
to the female descendants, this will enlarge the threat of alienation of the
tribal land in the hands or non tribals.
The
female members being given right of transfer of their rights in the origin of
malpractices like dowry and the like prevalent in other non-tribal
societies." When the matter was taken up for final disposal and the
resolution of the Board was brought to the notice of this Court by order dated October 11, 1991 this court further expressed thus:
"Scheduled
tribe people are as much citizens as others and they are entitled to the
benefit of guarantees of the Constitution. It may be that the law can provide
reasonable regulation in the matter of succession to property with a view to
maintaining cohesiveness in regard to Scheduled Tribes and their properties.
But exclusion from inheritance would not be appropriate. Since this aspect of
the matter has not been examined by the State of Bihar and the feasibility of
permitting inheritance and simultaneously regulating such inheritance for the
purpose of ensuring that the property does not go out of the family by way of
transfer or otherwise we are of the view that in the peculiar facts of the case
the State of Bihar should re- examine the matter." The State Government
reiterated its earlier stand, as stated in an affidavit filed in this behalf.
Sections 6, 7, 8 and 76 of the Act are as follows :
"6.
Meaning of raiyat. –
(1)
"Raiyat" means primarily a person who has acquired a right to hold
land for the purpose of cultivating it by himself, or by members of his family,
or by hired servants, or with the aid of partners; and includes the
successors-in-interest of persons who have acquired such a right, but does not
include a Nundari khunt-kattidar.
Explanation.- Where a tenant of land has the
right to bring it under cultivation, he shall be deemed to have acquired a
right to hold it for the purpose of cultivation, notwithstanding that he uses
it for the purpose of gathering the produce of it or of grazing cattle on it.
(2) A
person shall not be deemed to be a raiyat unless he holds land either
immediately under a proprietor or immediately under a tenure-holder or
immediately under a Mundari khunt-kattidar.
(3) In
determining whether a tenant is a tenure-holder or a raiyat, the court shall
have regard to –
(a) local
customs, and
(b) the
purpose for which the right of tenancy was originally acquired.
7. (1)
Meaning of 'raiyat having khunt-khatti rights'.- "Raiyat having & kunt
katti rights" means a raiyat in occupation of, or having any subsisting
title to, land reclaimed from jungle by the original founders of the village or
their descendants in the male line, when such raiyat is a member of the family
which founded the village or a descendant in the male line of any member of
such family:
Provided
that no raiyat shall be deemed to have kunt katti rights in any land unless he
and all his predecessors-in-title have held such land or obtained a title
thereto by virtue of inheritance from the original founders of the village.
(2)
Nothing in this Act shall prejudicially affect the rights of any person who has
lawfully acquired a title to a khunt kattidari tenancy before the commencement
of this Act.
8.
Meaning of Mundari khunt- kattidar.- "Mundari khunt-kattidar means a Mundari
who has acquired a right to hold jungle land for the purpose of bringing
suitable portions thereof under cultivation by himself or by male members of
his family, and includes- (a) the heirs male in the line of any such Mundari,
when they are in possession of such land or have any subsisting title thereto;
and (b) as regards any portions of such land which have remained continuously
in the possession of any such Mundari and his descendants in the male line,
such descendants.
76.
Saving of custom.- Nothing in this Act shall affect any custom, usage or
customary right not inconsistent with, or not expressly or by necessary
implication modified or abolished by, its provisions." In Ramalaxmi Ammal
v. Shivanadha Perumal Sheroyar, [(1872) 14 Moors Indian Appeals 585]. the
judicial Committee had held that custom is the essence of special usage
modifying the ordinary law of succession that it should be ancient and
invariable; and it is further essential that they should be established to be
so by clear and unambiguous evidence. It is only by means of such evidence that
the courts can be assured of their existence and that they possess the
conditions of antiquity and certainty on which alone the legal title to
recognition depends. In Abdul Hussain Khan v. Bibi Sona Dero.. [(1917-1918) 45
Indian Appeals 10], when it was pleaded that by customs of the family, the
sister of an intestate Mohammedan was excluded from inheritance in favour of a
male paternal collaterals, by operation of Section 26 of the Bombay Regulation
IV of 1827 (a usage was in question in the suit), the Board held that the custom
was not established to exclude the sister of the deceased from inheritance.
By
operation of Article 13(3)(a) of the Constitution law includes custom or usage
having the force of law.
Article
13(1) declares that the preconstitutional laws, so far as they are inconsistent
with the fundamental rights shall, to the extent of such inconsistency, be
void. The object, thereby, is to secure paramountcy to the Constitution and
give primacy to fundamental rights. Article 14 ensures equality of law and
prohibits invidious discrimination. Arbitrariness or arbitrary exclusion are
sworn enemies to equality. Article 15(1) prohibits gender discrimination. Article
15(3) lifts that rigor and permits the State to positively discriminate in favour
of women to make special provision, to ameliorate their social, economic and
political justice and accords them parity. Article 38 enjoins the State to
promote the welfare of the people (obviously men and women alike) by securing
social order in which justice, - social, economic and political - shall inform
of all the institutions of national life. Article 39(a) and (b) enjoin that the
State policy should be to secure that men and women equally have the right to
an adequate means of livelihood and the ownership and control of the material
resources of the community are so distributed as best to subserve the common
good. Article 38(2) enjoins the State to minimize the inequalities in income
and to endeavor to eliminate inequalities in status, facilities and
opportunities not only among individuals but also amongst groups of people.
Article 46 accords special protection and enjoins the State to promote with
special care the economic and educational interests of the Scheduled Castes and
Scheduled Tribes and other weaker sections and to protect them from social
injustice and all forms of exploitation. The Preamble to the Constitution
charters out the ship of the State to secure social, economic and political
justice and equality of opportunity and of status and dignity of person to every
one.
The
General Assembly of the United Nations adopted a Declaration on December 4, 1986 on "The Right to
Development" to which India played a
crusading role for its adoption and ratified the same. Its preamble cognisises
that all human rights and fundamental freedoms are indivisible and
interdependent. All Nation States are concerned at the existence of serious
obstacles to development and complete fulfillment of human beings, denial of
civil political, economic, social and cultural rights. In order to promote
development equal attention should be given to the implementation, promotion
and protection of civil political, economic, social and political rights.
Article
1(1) assures right to development an inalienable human right by virtue of which
every person and all people are entitled to participate in, contribute to, and
enjoy economic, social, cultural and political development in which all human
rights and fundamental freedoms can be fully realized. Article 6(1) obligates
the State to observe all human rights and fundamental freedoms for all without
any discrimination as to race, sex, language or religion.
Sub-article
(2) enjoins that .......equal attention and urgent consideration should be
given to the implementation.
promotion
and protection of civil, political, economic, social and political rights.
Sub-article (3) thereof enjoins that "State should take steps to eliminate
obstacle to development resulting from failure to observe civil and political
rights as well as economic, social and cultural and cultural right. Article 8
castes duty on the State to undertake,........ all necessary measures for the
realization of right to development and ensure, inter alia, equality of
opportunity for all in their access to basic resources............. and fair distribution
of income.
Effective
measures should be undertaken to ensure that women have an active role in the
development process. Appropriate economic and social reforms should be carried
out with a view to eradicate all social injustice.
Human
Right, are derived from the dignity and worth inherent in the human person.
Human Rights and fundamental freedom have been reiterated by the Universal
Declaration of Human Rights. Democracy, development and respect for human
rights and fundamental freedoms are inter-dependent and have mutual
reinforcement. The human rights for soman, including girl child are, therefore,
inalienable, integral and indivisible part of universal human rights. The full
development of personality and fundamental freedoms and equal participation by
women in political, social, economic and cultural life are concomitants for
national developments social and family stability and growth, culturally,
socially and economically. All forms of discrimination on grounds of gender is violative
of fundamental freedoms and human rights. Vienna Convention on the Elimination
of all forms of Discrimination Against Women (for short "CEDAW") was
ratified by the U.N.O. on December 18, 1979.
The Government of India who was an active participant to CEDAW ratified it on June 19, 1993 and acceded to CEDAW on August 8, 1993 with reservation on Articles 5(e),
16(1), 16(2) and 29 thereof.
The
Preamble of CEDAW reiterates that discrimination against women, violates the
principles of equality of rights and respect for human dignity; is an obstacle
to the participation on equal terms with men in the political, social, economic
and cultural life of their country; hampers the growth of the personality from
society and family and makes it more difficult for the full development of
potentialities of women in the service of their countries and of humanity.
Poverty of women is a handicap.
Establishment
of new international economic order based on equality and justice will
contribute significantly towards the promotion of equality between men and
women etc. Article 1 defines discrimination against women to mean "any
distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose on impairing or nullifying the recognized enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality
of men and women, all human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field." Article 2(b)
enjoins the State parties while condemning discrimination against women in all
its forms, to pursue, by appropriate means, without delay, elimination of
discrimination against women by adopting "appropriate legislative and
other measures including sanctions where appropriate, prohibiting all discriminations
against women" to take all appropriate measures including legislation, to
modify or abolish existing laws, regulations, customs and practices which
constitute discrimination against women.
Clause
(C) enjoins to ensure legal protection of the rights of women on equal basis
with men through constituted national tribunals and other public institutions
against any act of discrimination to provide effective protection to women.
Article 3 enjoins State parties that it shall take, in all fields, in particular,
in the political, social, economic and cultural fields, all appropriate
measures including legislation to ensure full development and advancement of
women for the purpose of guaranteeing them the exercise and enjoyment of human
rights and fundamental freedoms on the basis of equality with men. Article 13
states that "the State parties shall take all appropriate measures to
eliminate discrimination against women in other areas of economic and social
life in order to ensure, on a basis of equality of men and women'. Article 14
lays emphasis to eliminate discrimination on the problems faced by rural women
so as to enable them to play "in the economic survival of their families
including their work in the non- monetized sectors of the economy and shall take...
all appropriate measures...." Participation in and benefit from rural
development in particular, shall ensure to such women the right to participate
in the development programme to organize self groups and cooperatives to obtain
equal access to economic opportunities through employment or self- employment
etc. Article 15(2) enjoins to accord to women equality with men before the law,
in particular, to administer property......." The Parliament has enacted
the Protection of Human Rights Act, 1993, Section 2(b) defines human rights to
mean "the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution, embodied in the international
Conventions and enforceable by courts in India". Thereby the principles embodied in CEDAW and the concomitant
Right to Development became integral parts of the Indian Constitution and the
Human Rights Act and became enforceable. Section 12 of Protection of Human
Rights Act charges the Commission with duty for proper implementation as well
as prevention of violation of the human rights and fundamental freedoms.
Article
5(a) of CEDAW to which the Government of India expressed reservation does not
stand in its way and in fact Article 2(f) denudes its effect and enjoins to
implement Article 2(f) read with its obligation undertaken under Articles 3, 14
and 15 of the Convention vis a-vis Articles 1, 3, 6 and 8 of the Declaration of
Right to Development.
Though
the directive principles and fundamental rights provide the matrix for
development of human personality and elimination of discrimination, these
conventions add urgency and teeth for immediate implementation. It is,
therefore, imperative for the State to eliminate obstacles, prohibit all gender
based discriminations as mandated by Articles 14 and 15 of the Constitution of
India. By operation of Article 2(f) and other related articles of CEDAW, the
State should by appropriate measures including legislation, modify law and
abolish gender based discrimination in the existing laws, regulations, customs
and practices which constitute discrimination against women.
Article
15(3) of the Constitution of India positively protects such Acts or actions.
Article 21 of the Constitution of India reinforces "right to life".
Equality dignity of person and right to development are inherent rights in
every human being. Life in its expanded horizon includes all that give meaning
to a person's life including cultures heritage and tradition with dignity of
person. The fulfillment of that heritage in full measure would encompass the
right to life. For its meaningfulness and purpose every woman is entitled to
elimination of obstacles and discrimination based on gender for human
development. Women are entitled to enjoy economic, social cultural and
political rights without discrimination and on footing of equality. Equally, in
order to effectuate fundamental duty to develop scientific temper humanism and
the spirit of enquiry and to strive towards excellence in all sphere; of
individual and collective activities as enjoined in Article 51A(h) and (j) of
the Constitution of India, not only facilities and opportunities are to be
provided for but also all forms of gender based discrimination should be
eliminated. It is a mandate to the State to do these acts.
Property
is one of the important endowments or natural assets to accord opportunity,
source to develop personality, to be independent right to equal status and
dignity of person. Therefore, the State should create conditions and facilities
conducive for women to realize the right to economic development including
social and cultural rights.
Bharat
Ratna Dr. B.R. Ambedkar stated, on the floor of the Constituent Assembly that
in future both the legislature and the executive should not pay mere lip
service to the directive principles but they should be made the bastion of all
executive and legislative action. Legislative and executive actions must be
conformable to, and effectuation of the fundamental rights guaranteed in Part
III and the directive principles enshrined in Part IV and the Preamble of the
Constitution which constitute conscience of the Constitution. Covenants of the
United Nation add impetus and urgency to eliminate gender based obstacles and
discrimination. Legislative action should be devised suitably to constitute
economic empowerment of women in socio-economic restructure for establishing
egalitarian social order. Law is an instrument of social change as well as the
defender for social change. Article 2(e) of CEDAW enjoins this Court to breath
life into the dry bones of the Constitution, international Conventions and the
Protection of Human Rights Act, to prevent gender based discrimination and to
effectuate right to life including empowerment of economic, social and cultural
rights.
As per
the U.N. Report 1980 "woman constitute half the world population, perform
nearly two thirds of work hours, receive one tenth of the world's income and
own less than one hundredth per cent of world's property". Half of the
Indian population too are women. Women have always been discriminated and have
suffered and are suffering discrimination in silence. Self-sacrifice and
self-denial are their nobility and fortitude and yet they have been subjected
to all inequities, indignities, inequality and discrimination. Articles 13, 14,
15 and 16 of the Constitution of India and other related articles prohibit
discrimination on the ground of sex. Social and economic democracy is the
cornerstone for success of political democracy. The Scheduled Castes, Scheduled
Tribes and women, from time immemorial, suffered discrimination and social
inequalities and made them to accept their ascribed social status. Among woman,
the tribal women are the lowest of the low. It is mandatory, therefore, to
render them socio- economic justice so as to ensure their dignity of person, so
that they be brought into the mainstream of the national life. We are conscious
that in Article 25 which defines Hindus, Scheduled Tribes were not brought
within its fold to protect their customs and identity. We keep it at the back
of our mind.
Agricultural
land is the foundation of a sense of security and freedom from fear. Assured
possession is a lasting road for development, intellectual, cultural and moral
and also for peace and harmony. Agriculture is the only sources of livelihood
for the tribes, apart from collection and sale of minor forest produce. Land is
their most important natural asset and imperishable endowment from which the tribals
derive their sustenance, social status, a permanent place of abode and work.
The Scheduled Tribes predominantly live in Andhra Pradesh, Maharashtra, Bihar, Gujarat, Orissa, Madhya Pradesh, Rajasthan
and North Eastern States, though they spread to other States
sparsely.
The
empirical study by Anthropologists and Sociologists reveals that the customary
laws of the tribes are not uniform throughout Bharat. Even in respect of
intestate succession, the are not uniform. Though the customs of the tribes
have been elevated to the status of law, obviously recognized by the founding
fathers in Article 13(3)(a) of the Constitution, yet it is essential that the
customs inconsistent with or repugnant to constitutional scheme must always
yield place to fundamental rights.
In Sant
Ram v.Labh Singh, [(1965) 7 SCR 756]. this Court held that the custom as such
is effected by part III dealing with fundamental rights In Bahu Ram v. Baijnath
Singh [1962 Supp.(3) SCR 724],it was held that law of pre-emption based on
vicinage is void. In G. Dasaratha Rama Rao v. State of A.P.[(1961) 2 SCR 931],
this Court held that discrimination based on the ground of descent only offends
Article 16(2) In India agricultural land forms the bulk of the property. In
most of the tenancy laws, women have been denied the right to succession to
agricultural lands. The discernible reason in support thereof appears to be to
maintain unity of the family and to prevent fragmentation of agricultural
holdings or diversion of tenancy right. In Atam Prakash v. State of Haryana,
[(1986) 2 SCC 249], testing the validity of Section 15 of the Punjab
Pre-emption Act 1930, for the aforesaid reasons this Court held that the right
of pre-emption based on consanguinity is a relic of the feudal past. It is
totally inconsistent with the constitutional scheme. It is inconsistent with
modern ideas. The reasons which justified its recognition, quarter of a century
ago, namely, the preservation of the integrity of rural society, the unity of
family life and the agnatic theory of succession, are today irrelevant.
Classification on the basis of unity and integrity of either the village
community or the family or on the basis of the agnatic theory of succession,
cannot be upheld. Due to march of history, the tribal loyalties have
disappeared and family ties have been weakened or broken and the traditional
rural family oriented society is permissible. Accordingly Section 15(1),
clauses (1) to (3), violates fundamental rights and were declared ultra vires.
When
male member has the right to seek partition and at his behest, fragmentation of
family holding is effected, why not the right to inheritance/succession be
given to a female? On agnatic theory, she gets a shadow, but not substance. Right
to equality and social justice in an illusion. The denial is absolutely
inconsistent with public policy, unfair, unjust and unconscionable. The reason
of fragmentation of holding or division of tenancy right would hardly be a
ground to discriminate against a woman from her right to inherit the property
of the parent or husband. In V. Tulasamma v. Sesha Reddy [AIR 1977 SC 1944 at 1961],
this Court, cognizant to equality in intestate succession by Hindu woman, held
that after the advent of independence old human values assumed new complex;
women need emancipation; new social order need to be set up giving women
equality and place of honour, abolition of discrimination based on equal right
to succession is the prime need of the hour and temper of the times. In Chiranjeet
Lal vs. Union of India, [1950 SCR 869, this Court held that the guarantee
against the denial of equal protection of the law does not mean that
identically the same rule of law should be made applicable to all persons
within the territory of India in spite of difference in circumstances or
conditions. It means that there should be no discrimination between one person and
another. It is with regard to the subject matter of the legislation. In State
of West Bengal v. Anwar Ali Sarkar [1952 SCR 869],
it was held that the prohibition under Article 14 is to secure all persons
against arbitrary laws as well as arbitrary application of laws. It applies to
procedural and substantive law. Menaka Gandhi v. Union of India [(1978) 2 SCR
621, reiterates its creed on grounds of justice, equity and fairness lest law
becomes void, oppressive, unjust and unfair.
Eugine
Smith in his Indian Constitution has stated that secularisation of law is
essential to the emergence of modern Indian State, foundation of which stands on twin
principles of democracy and secularism. He further stated that "the
existence of different personal law contradicts the principles of
non-discrimination by the State". Non- discrimination is based on the
philosophy of the individual, not the group, as the focal point and the basic
unit of the nation. The civilization, culture, custom, usage religion and law
are founded upon the community life for man's well being. The man will obey the
command of the community by consent. The law formulates the principles to
maintain the order in the society to avoid friction. Democracy brings about
bloodless revolution in the social order through rule of law. Therefore, when
women are discriminated only on the ground of sex in the matter of intestate
succession to the estate of the parent or husband, the basic question is
whether it is founded on intelligible diffetentia and bears reasonable or
rational relation or whether the discrimination is just and fair. Our answer as
no and emphatically no.
In
State of Bihar v. Kameswar Singh, [1952 SCR 889], this Court had held that in
judging the reasonableness in imposing restrictions Court would take into
consideration public purpose in Article 39. In Kasturi Devi v. State of Karnataka, [(1980) 4 SCC 1], this Court held
that if law is made to further socioeconomic justice it is prima facie
reasonable and in public interest. In other words, if it is in negation, it is
unconstitutional. In Chandra Bhavan Boarding House v. State of Mysore, [(1970)
2 SCR 600], it was held that "the mandate of the Constitution is to build
a welfare society and aspirations aroused by the Constitution will be belied if
the minimum needs of the lowest of our citizen are not met. In Narendar Prasad
v. State Of Gujarat (1975) 2 SCR 317], it was held that
no right in an organised society can be absolute. Enjoyment of one's rights
must be consistent with the enjoyment of the rights of others. In a free play
of social forces, it is not possible to bring about a voluntary harmony; the
state has to step in to set right the imbalance and the directive principles,
though not enforceable; mandate of Article 38, to restructure social and
economic democracy, enjoins to eliminate obstacles and prohibit discrimination
in intestate succession based on sex.
In Thota
Sesharathamma v. Thota Manikyamma, [JT 1991 (3) SC 506], construing Section 14
of the Hindu Succession Act 1956 and its revolutionary effect on the right to
ownership of the land by Hindu woman, this Court held that the validity of
Section 14(1) drawn from the pre-existing limited estate held by a Hindu woman
must be tested on the anvil of socioeconomic justice, equality of status and by
overseeing whether it subserve the constitutional animation.
Article
15(3) relieves the State from the bondage of Articles 14 and 15(1) and charges
it to make special provision to accord socioeconomic equality to woman.
The
Hindu Succession Act revolutionised the therefore, endeavor to find out whether
the disposition clauses in the instrument will elongate the animation of
Section 14 and would permeate the aforestated constitutional conscience to
relieve the Hindu female from the Sashtric bondage of limited estate. Articles
14, 15 and 16 frowns upon discrimination on any ground and enjoin the State to
make special provisions in favour of the woman to remedy past injustice and to
advance their socioeconomic and political status. Economic necessity is not a
sanctuary to abuse woman's person. Section 14, therefore, gives to every Hindu
woman full ownership-of the property irrespective of the time when the
acquisition was made, namely, whether it was before or after the Act had come
into force, provided, she was in possession of the property. Discrimination on
the ground of sex in matter of public employment was buried fathom deep and is
now a relic of the past by decisions of this court. In C.B. Methama v. Union of
India, [(1980) 1 SCR 668], Air India v. Nagesh Mirza, [(1982) 1 SCR 438], and a
host of other decisions are in that path, True that clauses (h) and (j) of para
3 of Schedule 6 of the Constitution give power to District or Regional Councils
in North Eastern States to alter law relating to inheritance and customs;
they
too are bound by the law declared under article 141 of the Constitution to be
consistent with Articles 15(3), 14 and Preamble of the Constitution.
The
public policy and constitutional philosophy envisaged under Articles 38, 39, 46
and 15(1) & (3) and 14 is to accord social and economic democracy to women
as assured in the preamble of the Constitution They constitute core foundation
for economic empowerment and social justice to women for stability of political
democracy. In other words, they frown upon gender discrimination and aim at
elimination of obstacles to enjoy social, economic, political and Cultural
rights on equal footing. Law is a living organism and its utility depends on
its vitality and ability to serve as sustaining pillar of society. contours of
law in evolving society must constantly keep changing as civilization and
culture advances. The customs and mores must undergo change with march of time,
Justice to the individual is one of the highest interests of the democratic
State judiciary cannot protect the interests of the common man unless it would
redefine the protections of the Constitution and the common law if law is to
adapt itself to the needs of the changing society, it must be flexible and
adaptable.
Law is
the manifestation of principles of justice, equity and good conscience. Rule of
law should establish a uniform pattern for harmonious existence in a society
where every individual would exercise his rights to his best advantage to
achieve excellence, subject to protective discrimination. The best advantage of
one person could be the worst disadvantage to another. Law steps in to iron out
such creases and ensures equality of protection to individuals as well as group
liberties. Man's status is a creature of substantive as well as procedural law
to which legal incidents would attach. Justice, equality and fraternity are
trinity for social and economic equality.
Therefore,
law is the foundation on which the potential of the society stands. In Sheikriyammada
Nalla Koya v. Administrator, Union Territory of Laccadives, [AIR 1967 Kerala
259], K.K. Methew. J., as he then was, held that customs which are immoral are
opposed to public policy, can neither be recognized nor be enforced. Its angulation
and perspectives were stated by the learned judge thus:
"It
is admitted that the custom must not be unreasonable or opposed to public
policy. But the question is unreasonable to whom? Is a custom which appears
unreasonable to the Judge be adjudged so or should he be guided by the
prevailing public opinion of the community in the place where the custom
prevails? It has been said that the Judge should not consult his own standards
or predilections but those of the dominant opinion at the given moment, and
that in arriving at the decisions the Judge should consider the social
consequences of the custom especially in the light of the factual evidence
available as to its probable consequences. A judge may not set himself in
opposition to a custom which is fully accepted by the community.
But I
think, that the Judge should not follow merely the mass opinion when it is
clearly in error, but on the contrary he should direct it, not by laying down
his own personal and isolated conceptions but by resting upon the opinion of
the healthy elements of the population, whose guardians of an ancient
tradition, which has proved itself and which serves to inspire not only those
of a conservative spirit but also those who desire in a loyal and disinterested
spirit to make radical alterations to the organizations of existing society.
Thus,
the judge is not bound to heed even to the clearly held opinion of the greater
majority of the community if he is satisfied that that opinion is abhorrent to
right thinking people. In other words, the judge would consult not his personal
inclinations but the sense and needs and the mores of the community in a spirit
of impartiality." As in other parts of the country, in Bihar, most of the tribes like Munda, Oraom and Ho practised
shifting cultivation along with the settled cultivation as it has not been
popular with the tribe to combine various modern productive technology. But, by
passage of time, when the land has become scarce, they too have settled down to
ploughing cultivation on fixed tenures. Due to diverse reasons which it is not
necessary for the purpose of this case to elaborate, major part of the land
slipped out from their holdings.
Notable
researchers, who spent their valuable time living among the tribes, are W.G.
Archer, Dy. Commissioner Santhal Pargana during 1939-40, Prof. Christopher Von Furer-
Haimendorf, a German Sociologist appointed by Nizam of Hyderabad in 1940 who
spent his life with the tribals in Nizam State in Andhra Pradesh as well as Arunanchal
Pradesh.
Portrayed
life style and customs operating among the Tribals, Haimendorf says in his
"Tribes in India, the Struggle for Survival" that
Chenchoo women, tribals in Andhra Pradesh, enjoy equal status with men. They
can own property, but they can not inherit any substantial property.
They
abide by the decision of their husbands. they are equal companions with men
doing as much. if not more, of the work in maintaining the common household.
She and her husband, are joint possessors of the family property insofar as it
is acquired by the daily labour. In South India, in particular Andhra Pradesh,
after the grant of ryotwari pattas to the tillers of the soil including the
tribes, they acquire permanent right to fixed land holdings and there does not exist
any discrimination in matter of intestate succession between man and woman. Issues
in Tribal Development by Prof P. Ramaiah of Kakatiya University, Andhra Pradesh
at. page 9 it dated that "hereditary rights rule the property distribution
arrangement, It a man dies his wife and sons get equal share of property. Widow
gets her husband's share form the property". At page 14 he has further
stated, "land is part of his spiritual as well as economic heritage".
Dr
L.P. Vidyarthi in his Tribal Development Act and Its Administration, published
by Concept Publishing Co., (1986 Edn.), has stated at page 310 that the element
of certainty and definiteness of custom in the tribal society is lacking
because of divergent customs on the same issue adopted by different sections of
the tribes. The element of antiquity is also of little aid in that behalf. In
Tribal Society, custom is generally product of dominating mind, nurtured in the
belief of super-natural forces and taboos than a source of spontaneous growth.
It is mostly based upon the totem and taboos evolved in a particular family
having the force of the family law. The custom in the tribal society is much
influenced by the instinct of possessive authority and not on the basis of
sociological origin but it has been carried, generation after generation, as
being the family law. No scientific explanations are available, but if the
custom is examined in detail it is found deep rooted on the element of totem
and taboos. That is the reason that majority of the customs prevailing in the
tribal society could not attain the status of law and there is no legal
validity except in the cases of inheritance and some family laws like adoption
and marriage. If the working and life of the tribal societies is minutely
observed, it will be found that from morning till night, with the birth of a
baby till death, agricultural operations are the sole occupation for
livelihood; all are tagged, linked and based upon certain conduct and behaviour
reflecting, nearly custom and it may be said that entire tribal society is
based upon the rigid rules of custom and any society still untouched by the
influence of urbanisation exists in the phenomenon of religion mixed with magic
custom.
Archer
in his "Tribal Law and Justice - The Santhal View of Woman" has
stated in 1939-40 that the unmarried daughter has ordinarily no right at all in
land. She cannot ask for partition and if her brothers separate, some land may
be kept by her father or brother for financing her marriage and maintaining
her, but that is to fulfill their duties towards her and does not confer upon
her any rights.
At the
partition, she is given no share. She has a right to maintenance. If her father
or brothers or father's agnates are against discharging their duties, she can
claim enough land for keeping her till marriage. She can acquire the land of
her own which is her absolute property. If her father dies leaving no other
heirs or agnates, she will get his land until she is married. If she is
married, her sisters will share equally with her. If she has no sisters, the
property goes to the village community. With regard to married daughters, he
stated, that two to three bighas of land would be given as Stridhan" at
the time af marriage" In respect of that property, right of the fathers
brother or agnates are extinguished. The property given is her absolute
property. Her children inherit her property. In their absence, it passes on to
the father, brother, mother or her male agnates. With regard to the right of
married woman, at page 156, he has stated that at partition the wife and
children get one share and the husband gets one share. He has given instances
of one Safal Hansdeak of Tharia. With regard to the right of the widow, she is
like a Hindu widow having right to maintenance. If her husband died while he
was joint holder with his brothers she will continue to live in the family and
the situation will not differ materially from what it was in her husband's
lifetime. Her right to maintenance will continue and if her husband's family
neglects her without cause, she can demand sufficient land to keep herself, If
there is a complete family partition the widow and her children will get the
share which would have gone to her husband had he been alive. She gets life
estate like Hindu widow's estate, "The Madras and their Courts" by Sarad
Chandra Roy, 14th Ed. at p.244 to 451 (19159. The Origins of Chotanagpur by Sarad
Chandra Roy at p. 369 to 370 (1915 Ed.) dealt with inheritance on the same
lines, So they need no reiteration.
In Doman
Sahu v. Buka, [AIR 1931 Patna 198], though Mundas and Mundari women in Ranchi
District are akin to other tribals, since they regard themselves as Hindus, It
was held that Hindu law of succession would apply to them.
In Ganesh
Matho v. Shib Charan, [AIR 1931 Patna 305],, Kurmi Mahtons of Chota Nagpur
adopted Hindu religion. The Division Bench held that it must be presumed that
ordinarily they are governed by Hindu law in matters of inheritance and succession
except insofar as parties prove any custom obtaining among them which is at
variance with it. It was held that Mitakshara Hindu law of succession was
applicable to them. They did not prove any special custom alleged them.
In
"Law Enforcement in Tribal Areas" by S.K. Ghosh, Director, Law
Institute, Calcutta, published by Ashish Publishing House at page 89 it is stated
that though the Hindu Succession Act 1956 Hindu marriage Act 1954, Hindu
Adoption and Maintenance Act 1956 did not apply, because of their contracts
with other advanced societies some changes have taken place among tribes in the
observance of marriage, divorce, etc. In the event of any litigation, the
tribal courts are unable to reach a definite conclusion as these customary
codes as they are unwritten code. Therefore, it was recommend that a proper
study of customary codes of the tribals should be made and the same may be
codified properly. " "Some State governments have already taken
action to codify the personal laws of important tribal groups. These laws can
be gradually dispensed with or repealed when the tribals are fully assimilated
with the main body of our national community" at pages 90-91 he explained
the customs among the hills living in Madhya Pradesh and Rajasthan who
constitute largest tribal group in the country of a marriage by elopement or
capture or by arrangement. They are vary truthful people and they do not
hesitate to speak against the culprits, though they may happen to be kith and
kin.
The Garos,
the Khasis and the Jhintias are the main inhabitants of Meghalya State. They
observe monogamy. The daughter (Nokma Dongipa Hechik) descendant from the
ancestor is chosen for marriage for common ancestors. The husband goes and
lives with the wife which in Hindu law known as Illatom son-in-law. The custom
is that the senior- most household of the area maintains a line of inheritance
from the mother to the chosen daughter and the husband of the inheritress
mother, popularly known as Nokma is accepted as the constitutional head of the A'Khing.
The lands are held in common ownership of the machong, the usufruct rights are
granted to all the residents of the A'Khing. Mikirs, a populous tribe in Meghalaya
is patrilineal. The sons inherit property and it is divided among them. In the
absence of male heirs, the nearest agnate inherits that land. The daughters
have been excluded. In the absence of sons and brothers, the widow retains the
property provided she marries one of her husband's clan. The Gonds in Andhra
Pradesh, Madhya Pradesh, Bihar and Orissa observe monogamy. At page 139, he has
stated that the custom is heritable and transferable and right of inheritance
is patrilineal. The male heirs would succeed and the females are completely
excluded. The sons take equal shares, but among the Apa Tanis and the Nactes,
the system of primogeniture prevails, i.e. the eldest son only inherits the
father's landed property which has been softened among Apa Tanis. In Manipur,
the custom among Thandon Kukis is that the property is of the Chief of the
village. The practice is of shifting cultivation and the Chief distributes the
plots among the groups. The system of inheritance among the Naga group is that
at the death of the last owner, the succession is by patrilineal and the rules
of primogeniture prevails among them. The practice is that during his life-time
the father gives some land to the younger brother as well.
In a
report on Codification of Customary Laws and Inheritance Laws in the Tribal
Societies of Orissa by Dr. Bhupinder Singh and Dr. Neeti Mahanti of Jigyansu
Tribal Research Centre, sponsored by the Ministry of Welfare, Government of
India and submitted on May 19, 1993, it is stated at page 1 in last paragraph
of his preface that to reduce tribal customary laws into formal, technical,
straight-jacket frame is likely to rob it of its vitality and strength. It will
expose the innocent, gullible tribals to the machinations of touts, middle-men
etc. The customs which differ, in whatever magnitude, from one community to
other would help exploitation of the tribals by application of the traditional
law. Its relevance, freshness and vitality to a considerable extent, would get
weakened. Whims and fancies in dispensation of justice would be avoided.
They
concluded that "we must proceed deliberately and wirely." In Chapter
III at page 8 it is stated thus:
"Customary
law refers to rules that are transmitted from generation to generation through
social inheritance. In a close-knit simple tribal society, the people
themselves want to live according to customs backed by social sanctions; to
save them from objection and social ridicule of the society." At page 9,
it is stated that "the major areas of interest for a tribal community is
inheritance of land, forest rights and social customs like marriage, divorce,
desertion, child support, death, birth etc." Santhals, one of the largest
tribes of India spread over West Bengal, Orissa, Bihar and parts of Assam and Tripura.
It is observed at page 30 on the "Chapter Succession to Proeprty"
that the succession is in favour of the son, in his absence to the daughter, in
their absence to the relative. Even among Santhals, it is not strictly patrileneal.
If they have no son, succession is open to the daughter and if they have
neither son nor daughter then to the relative of the family.
Some
people among them preferred succession among son and daughter equally. On
husband's demise. the widow gets a share in the property, as life-estate. In
their conclusion at page 37, they have stated that the Santhals and Saora tribals
practice patrilineal is a mode of succession. At pages 38-43, after detailed
discussion it is stated that though there is considerable "on-going
acculturation process", the tribes have not completely discarded the
customs. At page 45, it was mentioned that though Santhal society is
predominantly patrilineal, they do not strictly adhere to it. The inheritance
in favour of the daughter has been softened but Soara society is conservative
and less exposed to winds of change. They preferred sons to daughters only if
there is no son in the family and other relatives of the family. However, the
widow inherits the estate of her husband. The working group of the 7th Five
Year Plan on the tribal development recommended codification of customary laws
prevalent among the tribals in its report at pages 323- 24 of the Planning
Commission documents. Dr. B.L. Maharde, a bureaucrat of Rajasthan Civil
Services, in his "History and Culture of Girjans" in the State of
Rajasthan, narrated the practices of tribals at page 84 stating that the
property after the death of the father is equally divided among the sons by the
village elders of Panchayat and in case of dispute. by the private Panchayat.
The youngest son, since he lives with his father, is entitled to have an extra
share. The grandson of his pre-deceased son is entitled to an equal share.
Daughters are not entitled to inherit their fathers' property, but they can
share the animal wealth. The son-in-law is entitled to equal share. The widow
has right to property which she loses on her remarriage. We do not get any
material as regards succession among the tribals in Madhya Pradesh, Maharashtra and Gujarat and in view of the general trend we assume that in those
States also partilineal succession would be in vogue.
It
would thus be seen that the customs among the Scheduled Tribes, vary from tribe
to tribe and region to region, based upon the established practice prevailing
in the respective regions and among particular tribes.
Therefore,
it would be difficult to decide, without acceptable material among each tribe,
whether customary succession is valid, certain ancient and consistent and whether
it has acquired the status of law. However, as noticed above, Customs are
prevalent and being followed among the tribes in matters of succession and
inheritance apart from other customs like marriage, divorce etc. Cus- toms
became part or the tribal laws as a guide to their attitude and practice in
their social life and not a final definition of law. They are accepted as set
of principles and are being applied when succession is open. They have
accordingly nearly occurred the status of law. Except in Meghalaya, throughout
the country patrilineal succession is being followed according to the unwritten
code of customs.
Like
in Hindu law, they prefer son to the daughter and in his absence daughter
succeeds to the estate as limited owner. Widow also gets only limited estate.
More than 80 per cent of the population is still below poverty line and they
did not come at par with civilized sections of the non- tribals. Under these
circumstances, it is not desirable to grant general declaration that the custom
of inheritance offends Articles 14, 15 and 21 of the Constitution. Each case
must be examined and decided as and when full facts are placed before the
Court.
Section
2(2) of the Hindu Succession Act, similar to Hindu Marriage Act, Hindu Adoption
and Maintenance Act, excludes applicability of customs to the Scheduled Tribes
as defined by clause (25) of Article 366 of the Constitution unless the Central
Government, by notification in the official Gazette otherwise directs.
Explanation 11 to Article 25 does not include them as Hindus. The Chotanagpur
Tenancy Act and the Santhal Parganas Tenancy (Supplementary Provisions) Act,
1949, the Bihar Scheduled Areas Regulation, 1969 intend to protect the lands of
the tribals and their restoration to them Section 7 and 8 of the Act regulates
the right of Khuntketti Raiyats. By operation of customary inheritance, the son
and lineal descendants inherit the lands held by the tribes for the purpose of
cultivation by himself or male members of his family. Section 76 read with Section
6 gives effect to custom, usage or customary right provided thereunder not
inconsistent with or not necessarily modified or abolished by the provisions of
the Act. The law exists to serve the needs of the society which is governed by
it. If the law is to play its allotted role of serving the needs of the
society, it must reflect the ideas and ideologies of that society. As stated
earlier, it must keep pace with march of time with the heart beats of the
society and with the needs and aspirations of the people. As seen, even among
the tribals in Bihar, the customs have now undergone advancement. They prefer
both son and daughter alike though not uniformly. Succession is patrilineal;
Santhals
practically adapted the Mitakshara Hindu law of succession. The Hindu
Succession Act modified the pre- existing law and intestate succession gives
right of succession to Hindu female. Section 14(1) has enlarged limited estate
known to Sastric law into absolute right of property held by a Hindu female. In
the Law of Intestate and Testamentary Succession, (1991 Ed.) at page 21, Prof. Diwan
has stated that Section 2(2) does not mean that Scheduled Tribes which were,
prior to the codified Hindu law governed by Hindu law will not, now be governed
by the Hindu law. If before codification any Scheduled Tribe was governed by
Hindu law it will continue to be governed by it. However, it would be uncodified
Hindu law that would apply to them. It is settled law that the procedural or
substantive law which offend the fundamental right are void. Section 7 and 8 of
the Act exclude woman tribals from inheritance to the Khuntkutti raiyati rights
solely on the basis of sex and confine succession and inheritance among male
descendants only In Maneka Gandhi v. Union of India [(1978) 2 SCR 621], this
Court held that reasonableness is an essential element of equality;
non-arbitrariness pervades Article 14. The Court must consider the direct and
inevitable effect of the action in adjudging whether the State action offends
the fundamental right of the individual. This Court sustained the validity of
Passport Act by reading down the statutory provisions. Justice, equity and good
conscience are integral part of equality under Article 14 of the Constitution
which is the genus and Article 15 is its specie. In Harbans Singh v. Guranchatta
Singh [(1991) 1 SCR 614)], this Court held that though the Transfer of Property
Act did not t apply to the State of Punjab at the relevant time, the general
principles contained therein being consistent with justice, equity and good
conscience would apply.
Under
the General Clauses Act, male includes female. In Jitmohan Singh Munda v. Ramratan
singh [1958 Bihar law Journal Report 373], interpreting Mundari Khunt Kattidari
widow's right to remain in possession of Mundari Khunt Kattidari tenancy, after
the death of her husband, the Bihar High Court held that the widow would have
life estate in tenancy rights as they have adopted Hindu law of succession.
There is no reference whatsoever to the exclusion of the widow of the
particular Mundari.
Therefore,
in respect of Khunt Kattidari tenancy, the widow would be entitled to
possession and Section a is not inconsistent with that position. In Jani Bai v.
State of Rajasthan [AIR 1989 RAJ. 115], interpreting Rajasthan Colonisation
Act, 1954, the Division Bench held that male descendants would include female
descendants and the adult son and the daughter should be treated alike both
being equally eligible for allotment under the rules under that Act. By
operation of Section 13(1) of General Clauses Act, males includes females, of
course, subject to statutory scheme which by now is subject to the
Constitution. In Sections 7 and 8 of the Act if the words "male
descendants" are read to include female descendants, the daughter, married
or unmarried and the widow are entitled to succeed to the estate of the father,
husband or son. Scheduled ribes are as much citizens as others and are entitled
to equality. Sections 7 and 8 are accordingly read down and so on that premise
are valid.
The question
then is whether the interpretation is consistent with Sub-s.(2) of Section 4 of
the Hindu Succession Act, 1956? Entry 7 of list III of Seventh Schedule to the
Government of India Act 1935 provided "Wills, intestacy and succession
save as regards agricultural land." Entry 5 of the Concurrent List in the
Seventh Schedule of the Constitution omitted the words "save as regards
agricultural lands' and provided merely "intestacy and succession; joint
family and partition". In Basavant Gouda v. Smt. Channabasawwa [AIR 1971 Mysore
151], division Bench of Mysore High Court in paragraph 11 had held that Entry 5
of the Concurrent List of the Seventh Schedule would apply to succession of
agricultural lands under Hindu Succession Act. It followed the judgment of Amar
Singh v. Baldev Singh [ AIR 1960 Punjab 666] (Full Bench) in its support. The same view was taken by a Division
Bench of the Orissa High Court, in a judgment rendered by B. Jagannadha Das,
J., as he then was, in Laxmi Debi v. S.K. Panda [AIR 1957 Orissa 1].
In Gopi
Chand v. Bhagwani Devi [AIR 1964 Punjab 272], a Division Bench of Punjab High
Court had held that Sub-s.(2) of Section 4 of Hindu Succession Act does not
apply to the Delhi Land Reforms Act conferring permanent tenancy rights of Bhumidar
or asami, laid down in Section 50 of that Act.
If it
is otherwise, it would be inconsistent with Section 4(1) of the Hindu
Succession Act and would be void. In Phulmani Dibya v. State of Orissa [AIR
1974 Orissa 135] a Full Bench has held that exclusion of woman from succession
to any Brahmottar grant discriminates against woman under Article 15 on ground
of sex and that, therefore, become said offending Article 15(1). In Tokha v. Smt.
Samman, [AIR 1977 Punjab and Haryana 406] a single Judge of that. Court held that
the occupancy rights held by a limited owner (widow) before the Hindu
Succession Act had come into force, enlarged as absolute property under the
Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act and thereby she
become an absolute owner and was entitled to gift over that land as to absolute
owner which was upheld.
In Mayne's
Hindu Law and Usage (13th Ed.), revised by Justice A. Kuppuswami, commenting on
Sub-section (2) of Section 4 of Hindu Succession Act, in paragraph 17 at page
960, it is observed that the legislature can always provide that the devolution
of tenancy rights shall be dependent upon personal law, i.e.., Hindu Succession
Act. The legislature can also lay down that in certain circumstances there
would be one kind of succession and in different circumstances the holding
shall devolve on different persons. Devolution in the case of a Bhumidari under
the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, is not
affected by Section 14 of the Hindu Succession Act as tenures created by the
Uttar Pradesh did not create proprietary interest but only tenancy right. In Bajaya
v. Gopikabai [(1978) 2 SCC 542], a Bench of three Judges of this Court held
that Bhumiswami and Bhumidari rights are two classes of tenure-holders of lands
paying land revenue to the State and are governed by the provisions of the
Hindu Succession Act. The tenancy rights having been separately dealt with by
the Madhya Pradesh Land Revenue Code, the devolution of the rights of an
ordinary tenancy and an occupancy tenant are in accordance with the personal
law of the deceased tenant.
Sub-s.2
of Section 4 of the Hindu Succession Act, to remove any doubts, has declared
that the Act shall not be deemed to affect the provisions of any law in force
providing for
(i) preventions
of fragmentation of agricultural holdings;
(ii)
for the fixation of ceiling; and
(iii) for
the devolution of tenancy rights in respect of such holdings. It is the policy
of the legislature that with a view to distribute the surplus land ceiling on
agricultural land has been prescribed so that the surplus land would be
distributed to the landless persons etc.
Therefore,
the operation of such law was excluded from the purview of the Hindu Succession
Act. This Court in Smt. Soorja v. SDO, Rehli, Civil Appeal No.1180/84 decided
on November 22, 1994, has upheld the ceiling law and
held that married daughters are not entitled to intestate succession of the
father nor a separate holding since the definition of "family" did
not include married daughter. The devolution of the tenancy rights are governed
by Entry 18 to the List II of the Seventh Schedule. Therefore, the Hindu
Succession Act to that extent stands excluded. As regards the prevention of
fragmentation of agricultural land, it is already held that if at the instance
of sons the agricultural lands are divisible and each son is entitled to hold
and enjoy his share separately daughters also would be entitled to a separate
share at a partition and enjoyment therein. The fragmentation in that behalf,
therefore, should not stand an impediment to the daughter's claiming an
intestate succession and to claim a share in the agricultural lands.
The
Hindu Succession Act regulates succession of agricultural land and the word
'property' in Sections 6 to 8, 14 and 15 and other sections in that Act would
include agricultural land, Thus considered the operation of Sub- s.(1) of
Section 4 will have an overriding effect for Hindu female claiming parity with
Hindu male for succession to the agricultural lands held by the father, mother,
etc. and sub- s.(2) does not stand an impediment for such a right of
devolution.
The
reason assigned by the State level committee is that permitting succession to
the female would fragment the holding and in the case of inter-caste marriage
or marriage outside the tribe, the non-tribals or outsiders would enter into
their community to take away their lands. There is no prohibition for a son to
claim partition and to take his share of the property at the partition. If
fragmentation at his instance is permissible under law, why the daughter/widow
is denied inheritance and succession on par with son? In Kerala State, the
Hindu Succession Act, 1956 was modified in relation to its application to the
State of Kerala, by amendment of Devasthanam Properties (Admission of Temporary
Management and Control and Hindu Succession) (Amendment) Act, 1958 and of the (Kullaiamma
Thumporan Korilakam Society Partition) Act, 1961. Kerala Hindu Joint Family
Abolition Act, 1975 brought about change bringing female into the fold for
succession per capita. Equally, the Hindu Succession (A.P. Amendment) Act 13 of
1986, the Andhra Pradesh Legislature took lead and amended Section 6 of the
Parent Hindu Succession Act and Section 29A conferred on the unmarried daughter
the status of co-parcener by birth and has given her right to claim partition
and equal share along with the sons. In the event of sale by the daughter of
the property obtained at the petition Section, 29C gives right to male heirs to
purchase the property on payment of the consideration. In the event of
disagreement on the consideration the Court having the jurisdiction is given
power to determine such consideration. In the event of non- payment by male
heirs, the right has been given to the female heir to sell the Property to
outsiders. Karnataka and Maharashtra legislatures have followed the suit and
suitably amended the Hindu Succession Act, 1950.
Throughout
the country, the respective State laws prohibit sale of all lands in tribal
areas to non-tribals, restoration thereof to the tribals in case of violation
of law and permission of the competent authority for alienation is a must and
mandatory and non-compliance renders the sale void. The Acts referred to
hereinbefore prevailing in Bihar State expressly prohibit the sale of the lands
by the tribals to the non-tribals and also direct resturation or recompensation
by equivalent lands to the tribals.
Therefore,
if the female heirs intend to alienate their lands to non-tribals, the Acts
would operate as a check on their action. In the event of any need for
alienation, by a tribal female, it would be only subject to the operation of
these laws and the first offer should be given to the brothers or agnates. In
the event of their refusal or unwillingness sale would be made to other tribals.
In the event of a disagreement on consideration, the civil court of original
jurisdiction should determine the same which would be binding in the partition.
In the event of their unwillingness to purchase the same, subject to the
permission of the competent officer, female tribal may sell the land to tribals
or non-tribals. Therefore, the apprehension expressed by the State-level
committee is unfounded.
The
Christians in India are governed by the Indian
Succession Act, 1925. It is stated that by operation of Section 1 notification
issued under the Government of India Act of 1935, the operation thereof stood
excluded to the tribal Christians residing in the State of Bihar. There is no
such prohibition in other States. Even otherwise, though the principles of
Indian Succession Act are strictly inapplicable, the general principles therein
being consistent with justice, equity and good conscience should equally be
applicable to the tribal Christians of the Bihar State.
I
would hold that the provisions of Hindu Succession Act, 1956 and the Indian
Succession Act, 1925 though in terms, would not apply to the Scheduled Tribes,
the general principles contained therein being consistent with justice equity,
fairness, justness and good conscience would apply to them. Accordingly I hold
that the Scheduled Tribe women succeed to the estate of their parent, brother,
husband, as heirs by intestate succession and inherit the property with equal
share with male heir with absolute rights as per the general principles of
Hindu Succession Act, 1956, as amended and interpreted by this Court and
equally of the Indian Succession Act to tribal Christian. However, the right of
alienation will be subject to the relevant provisions like the Act, the Bihar
Scheduled Areas Regulation 1969, Santhals tAmendmet) Act, 1958, Santhal Pargaras
tenancy (Supplementary Provisions) Act, 1949 as amended from time to time etc.
They would be applicable to them and subject to the conditions mentioned
therein. In case the tribal woman intends to alienate the land, subject to
obtaining appropriate permission from the competent authority under the
appropriate Act, she should first offer the land for sale to the brother or in
his absence to any male lenial descendant of the family and the sale will be in
terms of mutually agreed consideration and other terms etc. In case of any
disagreement on consideration, the consideration shall be determined on an
application filed by either party before the competent civil court of original
jurisdiction over the area in which the land is situated and the decision of
the civil court after adduction of evidence and consideration thereof, shall be
final and binding on the parties. In case the brother or lenial descendant is
not willing to purchase either by mutual agreement or as per the price settled
by the civil court, the female tribal woman shall be entitled to alienate the
land to the non-tribal but subject to the provisions of the appropriate Act.
The
writ petitions are accordingly allowed and rule nisi is made absolute. The
interim direction given for the protection of the petitioner Nos.2 and 3 in the
first writ petition would continue until they voluntarily seek its withdrawal
or modification in writing made to the District Superintendent of Police and an
order in that behalf is passed and communicated to them.
In the
circumstances, parties are directed to bear their own costs.
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