IMPORTANT POINTS
(1) Female tribal succession – There may not be any justification to deny right of survivorship so far as female member of Tribal is concerned – When daughter belonging to non-tribal is entitled to equal share in property of father, there is no reason to deny such right to daughter of Tribal community – Female tribal is entitled to parity with male tribal in intestate succession.
(2) When there is conflict between law and equity, law would prevail – Equity can only supplement law – There is a gap in it but it cannot supplant law.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Orissa at Cuttack in Land Acquisition Appeal No.79 of 2015 by which the High Court has dismissed the said appeal preferred by the appellant herein and has confirmed the order passed by the learned Reference Court, the original applicant has preferred the present appeal.

2. The dispute is with respect to the apportionment of the amount of compensation with respect to the land acquired. The land originally stood recorded in the name of late Satyananda Negi a common ancestor of the appellant and the other coparceners. The said Satyananada died leaving behind his two sons namely Chakradhar and Gajadhar. Chakradhar died leaving behind his four sons namely Chintamani, Parakhita, Basudev and Kulamani and one daughter Kamla (the appellant herein). Similarly, Gajadhar died leaving behind his two daughters namely Kumari and Kumudini. With respect to the land acquired, Khasra No.81, Mouza Kopsingha which originally stood recorded in the name of late Satyananda Negi, the amount of compensation was settled at Rs.5,97,35,754/in favour of the respondent nos. 2 to 5 herein i.e. Kadamba Negi, Janhabi Negi, Basudev Negi, Lalita Negi and daughters of Gajadhar i.e. Kumari Dhrua and Kumudini Majhi.

2.1 At the instance of the appellant claiming to be the daughter of Chakradhar and claiming 1/5th share in the amount of compensation a reference was made to the Reference Court under Section 30 of the Land Acquisition Act. The Reference Court – the learned Senior Civil Judge, Sundargarh rejected the claim of the appellant/share of the appellant in the compensation, mainly on the ground that as the parties belong to Scheduled Tribe Community, the provisions of the Hindu Succession Act shall not be applicable and therefore the appellant being a daughter shall not be entitled to the share in the amount of compensation. The order passed by the learned Reference Court denying the share in the amount of compensation has been confirmed by the High Court by the impugned judgment and order. Hence, the present appeal against the impugned judgment and order passed by the High Court.

3. Learned counsel appearing on behalf of the appellant has heavily relied upon the decision of this Court in the case of Madhu Kishwar & Ors. Versus State of Bihar & Ors., (1996) 5 SCC 125 in support of his submission that the appellant being a daughter shall be entitled to the share in the amount of compensation even applying the provisions of the Hindu Succession Act.

3.1 It is vehemently submitted that as observed and held by this Court denial of right to succession to Scheduled Tribe women would amount to deprivation of the right to livelihood under Article 21 of the Constitution of India. It is submitted that as observed and held by this Court exclusive succession in the male line of heirs must remain in suspended animation till the immediate female relatives of the last male tenant continue to depend their livelihood on the land.

3.2 It is submitted that as observed and held by this Court in the aforesaid decision, to deny the equal right to the women/daughter belonging to Scheduled Tribe would be genderbased discrimination and the daughter cannot be denied the right in the joint family property in which all coparceners have the equal share.

Making the above submissions and relying upon above decision, it is prayed to allow the present appeal and to hold that the appellant being daughter of one of the coparceners shall be entitled to 1/5th share in the amount of compensation.

4. Present appeal is vehemently opposed by Dr. Kedarnath Tripathy, learned counsel appearing on behalf of the contesting respondents.

4.1 It is submitted that in the present case the parties are members of the Scheduled Tribe. The suit land belongs to one Satyananda Negi and after his death, the said land devolved upon his two sons Chakradhar and Gajadhar with the right of survivorship bein