Second Appeal No. 746 of 1994. Case: Mst. Sarwango, Mst. Jaituniya and Gaya Prasad Vs Mst. Urchamahin, Kismat Singh and State of M.P.. Chhattisgarh High Court
| Case Number | Second Appeal No. 746 of 1994 |
| Counsel | For Appellant: Mr. J.K. Shashtri, Counsel and For Respondents: Mr. A.K. Prasad, counsel and Mr. Anil S. Pandey, Panel Lawyer |
| Judges | T. P. Sharma, J. |
| Issue | Central Provinces Laws Act, 1875 - Sections 5, 6 |
| Citation | AIR 2013 Chh 98, 2013 (2) MPHT 33 |
| Judgement Date | January 04, 2013 |
| Court | Chhattisgarh High Court |
Judgment:
T. P. Sharma, J.
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The present second appeal has been admitted for consideration on the following substantial question of law:--
Whether in view of Section 6 of Central Provinces Laws Act, 1875 the Court can apply the principles of Hindu Succession Act to the members of Scheduled Tribes?
Vide judgment & decree dated 2.5.1994 the Additional District Judge, Surajpur, in Civil Appeal No. 52A/92 allowed the appeal and dismissed the suit by reversing the judgment & decree dated 10.3.92 passed by the Civil Judge Class-II, Surajpur, in Civil Suit No. 9A/88.
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Undisputed facts of the case, Jhangal and Dakhal were two brothers. Plaintiffs Sarwango and Jaituniya are daughters of Jhangal, defendant Urchamahin was daughter-in-law of Dakhal, brother of Jhangal and Kismat Singh was probably illegitimate grandson of Balam Singh i.e. son of Dakhal. Both brothers Jhangal and Dakhal were joint owner of the property situated at village Kurwa, tahsil Surajpur i.e. 9.88 acres, they were by caste Gond. As per plaint allegation, they follow the Hindu law for their succession, but as per respondents allegation, they were having their own custom for succession.
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After providing opportunity of hearing to the parties, the trial Court has decreed the suit for partition to the extent of half share in favour of the plaintiffs, but same has been reversed by the lower appellate Court.
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I have heard learned counsel for the parties, perused the judgment & decree impugned, judgment & decree of the trial Court and records of the Courts below.
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Learned counsel for the appellant submits that the plaintiffs have specifically pleaded and deposed that they have adopted the Hindu law, especially for the purpose of succession, but the respondents have failed to prove the custom contrary to the Hindu law, therefore, suit ought to have decreed even in terms of Section 6 of the Central Provinces Laws Act, 1875 (for short 'the Act').
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On the other hand, learned counsel for respondent No. 2 opposes the appeal and submits that the parties are members of Scheduled Tribes and in their caste Gond i.e. Gond caste, daughters are not entitled to inherit the property left by their father. Defendant No. 1 Urchamahin has specifically deposed that Jhangal died issueless, Dakhal died leaving only son Balam Singh who has inherited the property left by both brothers.
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Indisputably, it was joint property of Jhangal and Dakhal. Defendants are heirs of Dakhal and the plaintiffs are...
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