Back
GAUHATI HIGH COURT
S.K.Dutta, M.C.Pathak, JJ.
Singma Sangma Mechik -Appellant
Versus
Khilji Sangma Mechik -Respondent
Civil Revn.No. 10 (H) of 1967
Decided On : 05-07-1968
GARO CUSTOMARY LAW - AKHING LAND - TRANSFER BY FATHER OF THE HOUSE - VALIDITY - CONSENT OF MOTHER OF THE HOUSE AND OTHER FEMALE MEMBERS OF THE FAMILY - NECESSITY - LIMITATION ACT, 1908 - APPLICABILITY TO SCHEDULED TRIBES.
Fact of the Case:
The plaintiff, claiming to be the Nokma of the Boldamgiri Akhing, filed a suit against the defendants, who claimed the same title through their deceased husband and father, Khewil Marak. The plaintiff's father, Tosu, had incurred debts and transferred the Akhing land to Khewil in satisfaction of those debts. The plaintiff contended that the transfer was conditional and not absolute, and that she was entitled to the Akhing land as the legal representative of her mother, Namje, who was the mother of the house.
Finding of the Court:
The court held that under the Garo customary law, the Akhing land belongs to the mother of the house and her Nokma, and not to the father of the house. The father of the house is only a guardian and manager of his wife's properties and cannot dispose of them or make them liable for any debt incurred by him without the express consent of the mother of the house and other female members of the family. In the present case, there was no evidence that Namje had consented to the transfer of the Akhing land to Khewil, and therefore the transfer was invalid.
Issues: 1. Whether the transfer of the Akhing land by Tosu to Khewil was valid under the Garo customary law. 2. Whether the Limitation Act, 1908, was applicable to the case.
Ratio Decidendi: 1. The court held that the transfer of the Akhing land by Tosu to Khewil was invalid because it was made without the consent of Namje, the mother of the house. The court relied on the Garo customary law, which provides that the Akhing land belongs to the mother of the house and her Nokma, and that the father of the house cannot dispose of it without the express consent of the mother of the house and other female members of the family. 2. The court held that the Limitation Act, 1908, was not applicable to the case because both parties belonged to a Scheduled Tribe.
Final Decision: The court allowed the plaintiff's petition and set aside the judgment and order of the District Court, Garo Hills District Council, Tura. The court directed that the names of the defendants as Nokmas of the Boldamgiri Akhing land be removed and that the members of the 'Sko Mechik' clan should now select the Nokma of the Boldamgiri Akhing in accordance with the customary law of the Garos.
2. The facts of the case are briefly as follows: The plaintiff-petitioner instituted Miscellaneous Case No. 32 of 1963 In the Subordinate Court of the Garo Hills District Council claiming the Akhing of Boldamgiri village as the Nokma of the clan. Her case was that her father late Tosu was the Nokma of Boldamgiri Akhing. Late Tosu incurred some debts, but could not repay. One Khewil Marak cleared the debts of Tosu and he got the Akhing land temporarily transferred in his favour from Tosu Nokma. Khewil had two wives, namely. Damje Sangma and Gonje Sangma. Khewil died in 1963. Gonje had one female issue, namely Jiji Mechik. Damje had none. Jiji was married to Singwan Marak, defendant No. 2. Both his wives having died. Khewil married Khilji Sangma, defendant No. 1.
3. Tosu had also two wives, namely Namje Sangma and Manje Sangma. The main wife Namje had two daughters, Singme Sangma Mechik, the plaintiff and Dongme. But Manje had no issue.
4. It was contended by the plaintiff that the transfer of the Akhing land by Tosu to Khewil was only conditional and not absolute and as such it did not confer any title on Khewil and through him on the defendants. The Akhing land or any part of it could not be sold out without the consent of the Maharis, and that at the time of transfer of the Akhing in question, a condition was laid down that on the plaintiff attaining majority, the Akhing would revert to the plaintiff and that the third wife of late Khewil. namely defendant No. 1. did not belong to 'Sko-Mechik clan and that she was not supplied as wife to late Khewil by her Maharis and as such she could not be Nokma of the Akhing and that the defendants secretly registered their names as Nokmas of the Akhing and therefore they could not legally claim the Nokma-ship under the customary law.
5. The case of the defendants-respondents was that the property was transferred by Tosu Nokma to Khewil Marak as he had paid all the debts of Tosu and that Khewil Nokma had two wives, namely Damje Sangma and Ganje Sangma and that Damje Sangma had no issue while Ganje Sangma had one daughter, Jiji Sangma, wife of defendant No. 2 and that after the death of Damje. Khewil took defendant No. 1 as his third wife and thus the defendants claimed the property through Khewil Sangma.
6. The case was heard by the Learned Judicial Officer, Subordinate Court, Garo Hills District Council, who dismissed the plaintiff's case. The plaintiff preferred an appeal before the Garo Hills District Council Court, which dismissed the appeal. Thereafter the plaintiff moved the High Court under Cl. 6 of the Assam High Court (Jurisdiction over District Council Courts) Order. 1954. in Civil Revision No. 2 (H) of 1964 and the High Court by its judgment and order dated 21-12-1964 set aside the judgments and orders of the Courts below and sent the case back to the Subordinate District Council Court for proper decision.
7. After remand, the Learned Judicial Officer. Subordinate Court, Garo Hills District Council, recorded evidence of the parties and by his judgment and order dated 29-8-1966 dismissed the plaintiff's case. Against the said judgment and order, the plaintiff preferred an appeal before the District Court, Garo Hills District Council, which was registered as Miscellaneous Appeal No. 6 of 1966. The Learned Judicial Officer by his order dated 29-4-1967 dismissed the plaintiff-petitione
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
