Point of Law: Section 2 (2) of Hindu Succession Act which is Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to members of any Scheduled Tribe within meaning of clause (25) of Article 366 of Constitution unless Central Government, by notification in Official Gazette, otherwise directs.

JUDGMENT :

NARENDRA KUMAR VYAS, J.

1. Defendant No. 1 has filed present appeal under Section 96 of the CPC challenging the judgment and decree dated 05.04.2006 passed by the learned First Additional District Judge, Raigarh in Civil Suit No. 4-A/2006 by which the learned trial Court decreed the suit for declaration and permanent injunction in favour of the plaintiff granting permanent injunction to plaintiff holding that defendant No. 2 is not in possession of the suit property mentioned in Schedule A and B, therefore, the sale deed executed on 30.09.2003 in favour of defendant No. 1 is not binding upon the plaintiff. Learned trial Court further restrained defendant No. 1 from possession of the suit permanently.

2. For the sake of convenience parties would be referred to as per their status in the suit filed before the trial Court.

3. The brief facts as reflected from the plaint averments are that the plaintiff has filed civil suit for declaration that the sale deed dated 30.09.2003 is not binding upon them. It has been contended that the plaintiff and defendants are Gond tribals and as per their custom defendants cannot inherit succession and in Gond community widow and daughter are only entitled to get maintenance as they have no right over the property as they are not governed by Hindu Law. It has been further contended that total 112 khasra numbers total area 33.804 Ha. are situated in Khadgaon, P.H. No. 1 of Tahsil Kharsiya District - Raigarh were registered in the name of Kushal Singh and Bhuteshwar Singh. After death of Kushal Singh and Bhuteshwar Singh names of legal representatives were recorded in the revenue record but fraudulently the widow of Kushal Singh got registered her name in the revenue record. The Plaintiff never objected in recording the name of defendant No. 2 in revenue record due to love and affection between mother and son and also it is responsibility of the son to take care of his mother. Defendant No. 2 was never in possession of the suit property and has not done any agricultural work over there.

4. On 01.06.2003 defendant No. 1 has provoked his mother defendant No. 2, therefore, she filed an application for partition before the Tahsildar on 12.06.2003. In the said proceedings the plaintiffs have raised objection contending that defendant No. 2 has no share over the property still Tahsildar without following the procedure passed final order on 09.09.2003 for recording the name of defendant No. 2 in the land measuring area 2.247 Ha. in six khasra numbers described in Schedule B of the plaint. The plaintiff preferred an appeal before the Sub Divisional Officer and obtained stay order. During the pendency of the case before the Sub Divisional Officer, defendant No. 1 instigated defendant No. 2 to execute sale deed in his favour for an agreed value of Rs. 1,55,000/- whereas market value of the said land was 1,69,000/-. Defendant No. 2 was never in possession of the said land as plaintiff is in possession of the said land. It has been further contended that the sale deed has been executed without following due procedure, as such the partition and sale deed are not binding upon him. It has been further contended that the plaintiff and defendants No. 1 to 6 belong to Gond community and they are not governed by the Hindu Law as such widow has no right to inherit the property and prayed that the sale deed executed on 30.09.2003 be held not binding upon them, as such it be kindly declared that defendant No. 1 has no right over the suit property pursuant to sale deed dated 30.09.2003 and he be restrained from interfering in the suit property by way of permanent injunction.

5. Defendant No. 1 has filed separate written statement contending that the tribals are following the Hindu law and their rituals are governed as per the Hindu law. He specifically denied that widow and daughter have no right. In fact Gond community is governed by the Hindu law, therefore Hindu Succession Act, 1956 is applicable to them. Due to g