1. The substantial questions of law formulated and to be answered by this Court in defendants' second appeal are as under:-

"(i) Whether in view of the bar contained in sub-section (2) of Section 2 of Hindu Succession Act, the lower appellate Court was justified in applying the provisions of Hindu Succession Act in the present case?

(ii) Whether in view of the admissions made by the plaintiff in paragraph 7 of her testimony, the lower appellate Court was wrong in holding that no custom relating to disentitlement of a female to inheritance of the property existed?"

[For sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court.]

2. The imperative facts required for determination of this second appeal are as under:-

2.1 The following is the Genealogy, demonstrating relationship of the parties :-

Laxman (Died) Son of Nakul Halba

Basanti Bai W/o. Manbodh (Daughter, died 8.2.1989) Balram Singh (Son) (died on 26.03.1993) = Butaki Bai (wife)/Def.-1

Sukhbati (Daughter) Plaintiff Daymati Def. No. 6 Sonmati (Daughter) Def. No.7 Ashok (Son) Def.8 Bujlata (Daughter) Def. No. 9 Lata (Daughter) Def. No.4 Lalita (Daughter) Def. No.5 Ani (Son) Def.2 Sunil (Son) Def.3 Geeta (Daughter) Def. No. 10 Sita (Daughter) Def. No. 11

2.2 The suit land mentioned in Schedule-A, 8.37 acres of agriculture land situated at Gram Jojal, Tahsil Jagdalpur, District Bastar, attached with the plaint and suit house situated at Hikmipara, Tahsil Jagdalpur District Bastar, Sheet No. 47, Plot No. 38/1, area 1722 were originally held by late Shri Laxman. Laxman had one son Balram Singh and daughter Basanti Bai.

2.3 After death of Balram Singh and Basanti Bai, the Basanti Bai's daughter Smt. Sukhbati filed a suit for declaration of title, partition and possession stating inter alia that they are Halba scheduled tribes of Bastar and they are governed by their own custom in the matter of succession, which is similar to Mitakshara School of Hindu Law.

2.4 It is further case of plaintiff that after the death of Laxman, Balram Singh got his name recorded in the revenue record, but according to law of succession, prevalent her mother Smt. Basanti Bai also had half share in the suit land and suit house and as such, she and her sisters/brothers along with sons and daughters of Balram Singh are entitled for equal share in the suit property and prayed for decree of declaration of title, partition and possession in her favour.

2.5 The appellants/defendants filed their written statement stating inter alia that parties are Halba scheduled tribes of Bastar and as such, the provisions of the Hindu Law, are not applicable to them and as per their custom, applicable daughters are not entitled to get any share in the ancestral property of their father, as such, suit deserves to be dismissed.

2.6 On the pleadings of the parties, the Trial Court framed as many as six issues and answered the said issues as under:-

1- D;k gYck tkfr esa izpfyr izFkk ds vuqlkj iqf=;ksa dks iSr`d laifr U;kxfer gksrh gS\ & ughaA

2- D;k gYck tkfr esa ek¡ dh laifr dh iqf=;ka mrjkf/kdkjh gS\ & vizekf.krA

3- ;fn gka rks okfnuh dk okn laifr esa va’k D;k gksxk\ & ughaA

4- D;k okfnuh okn laifr dk caVokjk djkdj vius va’k ij dCtk izkIr djus dh gdnkj gS\ & ughA

5- D;k okfnuh us okn dk mfpr :i ls ewY;kadu dj i;kZIr U;k;’kqYd vnk fd;k gS\ gk¡A

6- lgk;rk ,oa O;;\ ughaA

2.7 The Trial Court by its judgment and decree dated 03.02.1997 dismissed the suit of the plaintiff holding that the parties being Halba scheduled tribes, are governed by their own custom in matter of inheritance and succession and as per their custom, daughters are not entitled for share in the property of their father.

2.8 The First Appeal preferred by the plaintiff was allowed by the First Appellate Court holding that the daughters are entitled for share in the property of their father, as the defendants have failed to plead and e