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GAUHATI HIGH COURT
M. C. PATHAK AND BAHARUL ISLAM, J.
Satish Chandra Brahma -Appellant
Versus
Bagram Brahma and another -Respondent
Second Appeal No. 153 of 1970
Decided On : 13-11-1972
HINDU SUCCESSION ACT - APPLICABILITY - SCHEDULED TRIBES - BORO-BOROKACHARI COMMUNITY - LIMITED ESTATE OF WIDOW - ALIENATION BY GIFT - VALIDITY.
Fact of the Case:
The plaintiff claimed ownership of the suit land through a gift deed executed by the second defendant, who inherited the land from her husband. The first defendant, who was the brother of the second defendant's husband, contested the suit, claiming that he was a co-sharer in the land and that the second defendant had no right to transfer it. The trial court found in favor of the plaintiff, but the appellate court reversed the decision, holding that the first defendant was a co-sharer and that the second defendant had no right to transfer the land.
Finding of the Court:
The High Court held that the Hindu Succession Act, 1956, which abolished the limited estate of widows and gave them absolute ownership of their husband's property, was not applicable to the parties in the present case because they belonged to the Boro-Borokachari Scheduled Tribe. The Court found that under the customary law and the Hindu law applicable to the Boro-Borokacharis, the second defendant had only a life interest in the suit land and could not alienate it by way of gift.
Issues: 1. Whether the Hindu Succession Act, 1956 is applicable to the parties, who are members of the Boro-Borokachari Scheduled Tribe. 2. Whether the second defendant had the right to alienate the suit land by way of gift.
Ratio Decidendi: 1. The Hindu Succession Act, 1956 is not applicable to members of Scheduled Tribes unless the Central Government directs otherwise by notification. 2. Under the customary law and the Hindu law applicable to the Boro-Borokacharis, a widow has only a life interest in her husband's property and cannot alienate it by way of gift.
Final Decision: The appeal was dismissed, and the judgment and decree of the appellate court were affirmed.
PATHAK, J. :- This appeal is from the judgment and decree passed by the learned Assistant District Judge, Dhubri.
2. The plaintiffs case is that the land described in the schedule to the plaint originally belonged to Bijendra Nath Brahma, who had been enjoying the said land. After his death the suit land was inherited by his widow Rauswari Brahmani, pro forma defendant No. 2, and his son Pagla Brahma. Pagla Brahma died leaving his mother defendant No. 2 as the sole heir of the suit land. After coming into force of the Hindu Succession Act on 17th June, 1956, the defendant No. 2 became the absolute owner of the suit property. Defendant No. 2 continued to live with plaintiff Satish Chandra Brahma alias Satindra Brahma, who cultivated the suit land as an "Adhiar". On 5-2-1962 the defendant No. 2 made a gift of the suit land to the plaintiff and executed a registered deed of gift and since then the plaintiff had been possessing and cultivating the suit land by virtue of his own right. Thereafter at the instance of the defendant No. 1 a proceeding under Sec. 145. Criminal P. C. was started and the suit land was attached in that proceeding. The Criminal Court in the proceeding under Section 145, Criminal P. C. declared possession in favour of the defendant No. 1 Baigram Brahma. The plaintiff therefore filed the suit for declaration of his right, title and interest in the suit land and for recovery of khas possession. Defendant No. 2 filed a written statement admitting that she had made a gift of the suit land to the plaintiff.
3. Defendant No. 1 contested the suit and filed a written statement. The Defendant No. 1 averred that pro forma defendant No. 2 did not execute any deed of gift in favour of the plaintiff and even if any such deed of gift was executed it was invalid in law and the plaintiff could not acquire any title on the strength of such a deed of gift. The defendant No. 1 next averred that the Hindu Succession Act, 1956 which came into force with effect from 17th June, 1956 was not applicable to the instant case inasmuch as the plaintiff and the defendants belonged to the Scheduled Tribal Community of Assam and therefore the defendant No. 2 did not acquire absolute title to the suit property and the transfer by way of gift in favour of plaintiff, if any, did not confer any title on the plaintiff. The defendant No. 1 also denied that the plaintiff was ever allowed to hold the land in question as "Adhiar". The defendant No. 1 further averred that the suit land was not the self-acquired property of late Bijendra Nath Brahma who was the husband of pro forma defendant No. 2 and elder brother of the defendant No. 1. That Binna Ram Brahma the father of late Bijendra Nath Brahma and Baigram Brahma (Defendant No. 1) came to Bangshijhora village. P. S. Bilasipara from Lalmati village. P. S. Golokganj about 30/35 years ago and began to live there with Bania Brahma, the nephew of Binnaram Brahma. At that time Binnaram Brahma was very old and incapable of doing any work. Late Bijendra Brahma and the defendant No. 1 reclaimed the suit land and began to live there by cultivating the same. In the meantime Binnaram Brahma died and after his death late Bijendra Brahma and defendant No. 1 began to live in the same family and to possess the suit land jointly. Afterwards according to prevalent practice a petition was filed for settlement of the said land in favour of Bijendra Brahma, who was the Karta of the family. Accordingly settlement was obtained from the Zamindar of Parvat Jowar in 1346 B. S. (corresponding to 1939-40 A. D.) and both defendant No. 1 and late Bijendra Brahma continued to possess the land jointly. About 18/19 years back Bijendra died and after his death defendant no. 1 kept his nephew late Aduram Brahma and defendant No. 2 Rauswari Brahma in his family and maintained them by cultivating the suit land. Aduram Brahma died 5/6 years after Bijendras death. Defendant No. 2 continued to live in the family of defendant No
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