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1971 Supreme(Ori) 8
Orissa High Court
R.N.MISRA
Dasarath Naik - Appellant
Versus
Gura Bewa - Respondent
First Appeal No.22 of 1965
Decided On : 01/15/1971
B. Patnaik, for Appellant; C.K. Ghosh, for Respondents.
The burden of proving that the parties had become Hinduised and adopted Hindu Law lay on the plaintiffs, and the existence of movable properties for partition must be established by the plaintiffs.
Headnote:
HINDU WOMEN'S RIGHT TO PROPERTY ACT, 1937 - SECTION 3 - APPLICABILITY TO SCHEDULED TRIBES - BURDEN OF PROOF - HINDU SUCCESSION ACT, 1956 - SECTION 2(2) - APPLICABILITY TO SCHEDULED TRIBES - BURDEN OF PROOF - PARTITION OF MOVABLE PROPERTIES - EXISTENCE OF MOVABLES - BURDEN OF PROOF.
Fact of the Case:
The plaintiffs filed a suit for partition of immovable and movable properties, claiming half share in the properties as widows of pre-deceased son and grandson of the deceased owner. The defendant, the appellant, disputed the plaintiffs' claim, contending that the parties were members of a scheduled tribe and not governed by Hindu Law, that the plaintiff No.1 was a pre-Act widow and not entitled to a share, that the plaintiff No.2 was entitled only to 1/3rd share in the immovable properties, and that the existence of the movable properties was disputed.
Finding of the Court:
The court held that the burden of proving that the parties had become Hinduised and adopted Hindu Law lay on the plaintiffs, but since the dispute on this issue was not specifically raised in the pleadings, the court refused to accept the defendant's contention at the first appellate stage. The court also held that the plaintiff No.1 was not entitled to a share in the property as she was a pre-Act widow, and that the plaintiff No.2 was entitled only to 1/3rd share in the immovable properties as her husband had died before the extension of the Hindu Women's Right to Property Act, 1937 to the ex-State area of Keonjhar. The court further held that the plaintiff No.3 was not entitled to a share in the property as the Hindu Succession Act, 1956 did not apply to members of the scheduled tribe, and that the existence of the movable properties was disputed and the plaintiffs had failed to establish their existence.
Issues: 1. Whether the parties were members of a scheduled tribe and not governed by Hindu Law. 2. Whether the plaintiff No.1 was a pre-Act widow and not entitled to a share. 3. Whether the plaintiff No.2 was entitled only to 1/3rd share in the immovable properties. 4. Whether the plaintiff No.3 was entitled to a share in the property. 5. Whether the existence of the movable properties was disputed.
Ratio Decidendi: 1. The burden of proving that the parties had become Hinduised and adopted Hindu Law lay on the plaintiffs, but since the dispute on this issue was not specifically raised in the pleadings, the court refused to accept the defendant's contention at the first appellate stage. 2. The plaintiff No.1 was not entitled to a share in the property as she was a pre-Act widow. 3. The plaintiff No.2 was entitled only to 1/3rd share in the immovable properties as her husband had died before the extension of the Hindu Women's Right to Property Act, 1937 to the ex-State area of Keonjhar. 4. The plaintiff No.3 was not entitled to a share in the property as the Hindu Succession Act, 1956 did not apply to members of the scheduled tribe. 5. The existence of the movable properties was disputed and the plaintiffs had failed to establish their existence.
Final Decision: The court granted a preliminary decree for partition in respect of the plaintiff No.2's 1/3rd share in the immovable properties and 1/3rd share in the two items of movable properties, namely a pair of bullocks and a pair of buffaloes.
JUDGMENT :- The defendant is the appellant. The plaintiffs filed a suit for partition of immovable properties contained in Kha and Ga schedules and of movables under Gha schedule and claimed that they were entitled to half share in the said properties. The relationship of the parties can be found out from the genealogy appended below:-
2. The plaintiffs claimed that the immovable properties were the separate properties of Dutia and Dutia having died 3 or 4 years prior to the institution of the suit and the plaintiff No.1 being the widow of the pre-deceased son and the plaintiff No.2 the widow of the predeceased grandson of Dutia, both of whom became widows after the commencement of the Hindu Women's Right to Property Act, they are entitled to half share in the property equal to the share that Dalu was entitled to in the property.
3. In the written statement the plaintiff's claim that the property was the separate property of Dutia was disputed. Existence of the movables as alleged was also disputed and it was claimed that whatever movables existed were brought by the wife of the defendant at the time of marriage. In the trial court no specific plea was taken on the ground that the parties were not Hindus or that they were members of the scheduled tribe who were ordinarily not governed by Hindu Law and until the plaintiffs established that the parties became Hinduised and had adopted Hindu Law they could not take advantage of either the Hindu Women's Right to Property Act (hereinafter called the 1937 Act) or of the Hindu Succession Act.
4. The learned trial Judge on a consideration of the evidence placed before him came to hold that the plaintiffs were entitled to half share in the immovable properties covered by Kha and Ga schedules. Coming to the movables, he found that certain items did not exist; but in respect of the remainder that he found to be existing, he gave a decree to the plaintiffs to the extent of a moiety share. Aggrieved by this preliminary decree the defendant is in appeal before this Court.
5. Mr. Patnaik, learned counsel for the defendant-appellant has raised four contentions in this appeal. They are (1) the parties are Bathudi by caste which has been declared to be one of the scheduled tribes. As such, they are not governed by Hindu Law and the plaintiffs are not entitled to claim on the basis of the 1937 Act. In support of his contention Mr. Patnaik relies upon the Constitution (Scheduled Tribes) Order, 1950, where under item No.4 in relation to the State of Orissa. Bathudis have been declared to be members of the scheduled tribe; (2) conceding that the 1937 Act applies, according to Mr. Patnaik, the plaintiff No.1 would not be entitled to a share because even on the finding recorded by the learned trial judge, she must be taken to have become a widow prior to the extension of the 1937 Act to the ex-State of Keonjhar. It has been found by the trial court that the Act got extended to that ex-State area in 1948 and that finding is not assailed in appeal. Mr. Patnaik therefore contends that on that finding it must be taken that the plaintiff No.1 was virtually a pre-Act widow and she would not, therefore, be entitled to any share. It is contended that Panchu's widow (plaintiff No.2) alone would be entitled to a share in the property in Kha and Ga schedules equal to the interest her husband had therein at the time of his death after the extension of the 1937 Act to the ex-State areas of Keonjhar. Section 3 of the 1937 Act provides:-
"(1) When a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow or if there is more than one widow, all his widows together shall, subject to the provisions of sub-sec.(3), be entitled in respect of property in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall
