ORDER

11.7.2017 Heard learned counsel for the petitioners, learned counsel appearing for opposite parties 4 to 6 and learned Addl. Government Advocate for the State. None appears for opposite party nos. 2 and 3.

2. In this writ application, the petitioners, being the petitioners in R.P. Case No. 979/1991 of the Court of Commissioner Land Records and Settlement, Odisha, Cuttack, opposite party no. 1, have assailed the judgment dated 09.10.1992 in R.P. Case No. 979/1991 which was later on modified by the same Commissioner on 20.10.1993 in Misc. Case No. 306/1993.

3. The facts of the case are not disputed. The land in question measuring total area of 9 acres has been recorded in the Hal Khata No. 1 of Mouza-Kanjiapal. The Record of Right has been finally published in the name of the petitioners and opposite parties 2 to 6. The admitted case of the parties is that the lands in question are the ancestral properties of the parties though there is some dispute regarding status of opposite party No. 3 Kandhei Dei @ Padhan and Gouri Dei @ Padhan-opposite party No. 2. Both are daughters of Suka Padhan. It is claimed by the petitioners that Suka Padhan is no way related to Bagha Padhan. So Kandhei Dei @ Padhan and Gouri Dei @ Padhan are not entitled to get any property which was recorded in the name of Bagha Padhan. It is borne out from the record that in the year 1928 the Record of Right has been prepared in the name of Bagha Padhan, Caste-Matia (Schedule Tribe) the lands situated in Mouza Kanjiapal.

4. During current settlement in the year 1991 the Hal R.O.R. was published in the said village and Khata No. 1 has been recorded in favor of the writ petitioners and opposite party nos. 2 to 6. It is the case of the petitioners that opposite party nos. 2 and 3 are not descendants of Bagha Padhan. These two opposite parties have not appeared despite sufficient notice. Opposite party nos. 4 to 6 are married daughters of late Madhu Padhan. The petitioners have filed an application before the Commissioner Land Records and Settlement, Orissa, Cuttack for deletion of names of opposite party nos. 2 to 6 which was registered as R.P. Case No. 979/1991 Learned Commissioner dismissed the application holding that the opposite parties though tribals are Hindus and as per the judgment of this Court in Second Appeal No. 2002/1979, Hindu Succession Act, 1956 is applicable to the tribals. Hence the daughters of Madhu Padhan are entitled to record their names with respect to the properties of Bagha Padhan. At the outset learned counsel for the petitioners drew attention of this Court to sub-Section (2) of Section 2 of Hindu Succession Act, 1956. It is appropriate to take note of the same.

“2. Application of Act (1) xx xx xx

(2) Notwithstanding anything contained in sub-Section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Central Government, by notification in the official Gazette, otherwise directs.

(3) xxx xxx xxx xxx.”

5. It is not the case of any of the parties that the Central Government has brought out any notification including the tribe of the present parties to which the Hindu Succession Act, 1956 (Act 30/1956) applies. It is also appropriate to take note of the judgment of this Court in the case of Dhanurjaya Kirsani Vrs. Sukra Kirsani and others; 62 (1986) C.L.T. 123; wherein this Court recognized the fact that the statutory Hindu Law, i.e. Hindu Succession Act, 1956 is not applicable to the tribals. However, it is further observed that unless any custom to the contrary is proved, the original text of Hindu Law also applies to the tribal people living in the interior parts of the country whose way of life, their habits and culture have been influenced by the Aryans and their missionaries through centuries and who in a sense have embraced and profess Hinduism. This is the same jud