JUDGMENT

A.S. Chandurkar, J. (Oral) - The original plaintiff has filed the present Second Appeal as the suit for partition and separate possession filed by her has been dismissed and the said decree has been confirmed by the appellate Court. As per the plaint averments one Mara Uikey was the common ancestor. He expired in the year 1971. He was survived by his widow, two sons and a daughter Rayabai. The plaintiff is a granddaughter of Mara Uikey and the daughter of Rayabai. The plaintiff''s mother expired in the year 1981 and the plaintiff being the only heir filed aforesaid suit for partition and separate possession. The brothers of Rayabai were arrayed as defendants. The plaintiff claimed entitlement on the ground that the parties were governed by Hindu law. In the written statement a stand was taken that the parties were "Gond" and hence being members of Scheduled Tribe, Hindu law was not applicable to them. It was further pleaded that in the Gond community daughters were not entitled to the share in the estate and hence the plaintiff was not entitled to claim partition.

2. After the parties led evidence, the trial Court by its judgment dated 25/09/2000 held that the parties being "Gond" Scheduled Tribe, they were not governed by provisions of Hindu Succession Act, 1956 (for short, the said Act). It further held that even as per customary law, the plaintiff was not entitled for any share in the property. The suit was accordingly dismissed. The first Appellate Court confirmed this judgment and dismissed the appeal.

3. The following substantial question of law was framed while admitting the Second Appeal :

" Whether the appellate Court was justified in rejecting the claim of the appellant/plaintiff when the appellate Court arrived at a conclusion that the plaintiff was a Hindu, merely by holding that the plaintiff had failed to prove instances in the Gond community of allotting any property to the sisters and daughters ?

4. Shri S.K. Pardhy, learned counsel for the appellant/plaintiff submitted that the first appellate Court in paragraph 11 of its judgment had held that the parties to the dispute were Hindus and therefore as per provisions of the said Act, the suit for partition ought to have been decreed. It was submitted that the bar as laid down by provisions of Section 2(2) of the said Act would not come into operation. The evidence on record was sufficient to come to the conclusion that the parties were not following the customs relating to "Gond" community. Relying upon judgment of the Honourable Supreme Court in Labishwar Manjhi v. Pran Manjhi and ors. (2000) 8 SCC 587 as well as the judgment in Laxmi Narayan Tudu alias Lakshmi Narayan Manjhi and anr. AIR 2004 Jharkhand 121 , it was submitted that the parties being Hinduised they were governed by the provisions of the said Act. It was therefore submitted that the plaintiff was entitled for a share in the property.

5. Shri D.V. Mahajan, learned counsel for the respondent-defendant supported the impugned judgment. According to him the pleadings in the plaint were not sufficient to contend that the parties were not governed by customary law. On the contrary the evidence on record indicated that those customs were still being followed. There was no evidence on record to come to the conclusion that after giving up the practices of Gond community, the parties were following Hindu customs. He referred to the provisions of Section 48 of the Evidence Act and submitted that the plaintiff or her witnesses did not lead any sufficient evidence on the basis of which any relief could be granted to her. There was also no evidence to come to the conclusion that as per customary law a daughter was entitled to share in the suit property. In support of his submissions, learned counsel placed reliance on the decision in Madhu Kishwar and ors. v. State of Bihar and ors. AIR 1996 SC 1864 and Second Appeal No. 143/2004 (Ganeshsingh Uttamsingh Thakur and ors. v. Premsingh Narayansingh Thakur and