The explanation to Clause 3(1) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 does not apply to the sale of land by a Scheduled tribe lady after her marriage to a non-tribal.

JUDGMENT :

L. Rath, J. - This petition is at the instance of a lady belonging to the Scheduled tribe for restoration of the order passed by the Special Officer under the Orissa Scheduled Areas Transfer of Immoveable property (By Scheduled Tribes) Regulations, 1956 (for short, the 'Regulations') in her favour reversed in appeal.

2. The brief facts are that the Petitioner filed an application under the Regulations to set aside the impugned sale in favour of the opposite parties who are non-tribal. The application was contested contending that the Petitioner had ceased to be a member of the Scheduled tribe on account of her marriage with a non-tribal Kangali Mohapatra and that she had also described herself as of Khandayat caste in the sale deeds. In the proceeding the Petitioner also took the stand, in view of the objection of the opposite parties, that she is not the married wife but the concubine of Kangali Mohapatra. While the Special Officer held the sale to be null and void, the Additional District Magistrate held in appeal that the Petitioner was estoppel from claiming herself as a Scheduled tribe lady entitled to protection under the Regulations, she having led the opposite parties to believe her caste as Khandayat describing herself as such in the sale deed and further held relying upon the provisions of the explanation to Clause 3(1) of the Regulations that it having provided the purchase of land by a tribal lady married to a nontrivial person from a tribal to be deemed as purchase by a non-tribal, that sale of land by a tribal lady after her marriage to a non-tribal no longer enjoyed the protection of the Regulations so as to declare the sale invalid.

3. Both the points on which the appellate order rests are not sustainable. 50 far as the position u/s 115 of the Evidence Act is concerned, if the sale was made in vitiating of the provisions of the Regulations, a plea of estoppel would not be available in defence as there is no estoppel against the statute. Besides merely because, a statement has been made in the sale deed, it would not amount to an admission on the part of the vendor lady since it is not on record that the statement was to her knowledge and that she had understood the import d such mention in the sale deed. Besides at any rate, a mere dentitions in the sale deed would also not change her caste. So far as the explanation is concerned, it may be extracted:

Explanation-For the purpose of this Sub-section a transfer of immoveable property in favour of a female member of a Scheduled tribe who is married to a person who does not belong to any Scheduled tribe shall be deemed to be a transfer made in favour of a person not belonging to a Scheduled tribe.

The explanation, inserted by way of amendment in 1977 is apparently for the purpose of safe-guarding against exploitation of tribals by persons belonging to other communities by marriage to tribal women which comes handy. For the purpose, the purchase of land by a scheduled' tribe woman from another Scheduled tribe effected after her marriage outside the Scheduled tribe communities has to be treated under the deeming provisions of the statute as purchase by a non-scheduled tribe person and hence hit by the provisions of the Regulations. The same is not the case so far as transfer of land by a Scheduled tribe lady after her marriage to a non-tribal is concerned. The mere marriage, without anything more, does not ipso facto change her status of being a member of the Scheduled tribe. In Chatturbhuj Vithaldas Jasani Vs. Moreshwar Parashram and Others, dealing with a case if conversion of a Scheduled caste to Mahanubhava Panth, the Supreme Court held that what is to be determined is the social and political consequences of such conversions. In that case conclusion was reached that the conversion had little meaning beyond an intellectual acceptance of certain ideological tenets and did not alter the convert's caste status. It was also held in AIR 1359 S.C. 1318 V.V. Giri