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2010 Supreme(MP) 471
2011 jk fu 59 2011 RN 59
¼mPp U;k;ky;½ (HIGH COURT)
U;k- izdk‘k JhokLro
Prakash Shrivastava, J.
frokjh ckbZ rFkk vU; fo- lhrkckbZ rFkk vU;
Tiwari Bai and others
Vs.
Sita Bai and others
f}rh; vihy dz- 346 lu~ 1995] ¼bankSj½( fu.khZr fnukad 28-6-2010A
Second Appeal No. 346 of 1995 (Indore);
Decided on: 28.6.2010
Advocates Appeared:
Ms. M. Ravindran for appellants;
B.S. Gandhi for respondent No.1.
Headnote:¼1½ fganw mRrjkf/kdkj vf/kfu;e] 1956 & /kkjk 2 ¼2½ & Hkhy tkfr dh vuqlwfpr tutkfr dh fookfgr iqf=;k¡ & mRrjkf/kdkj & vf/kfu;e ds mica/k ykxw ugha & mRrjkf/kdkj tutkfr dh izFkk }kjk fofu;fer gS & ,slh izFkk lkfcr ugha ftlds v/khu os vius firk dh laifRr fojklr esa izkIr djus dh gdnkj gSA , vkb vkj 1925 ih lh 267 rFkk , vkb vkj 1952 ,l- lh- 231 vuqlfjrA 1983 jk fu 64 ¼mPp U;k;k-½ voyafcrA ¼iSjk 8] 10 ,oa 18½
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 164 & Hkhy tkfr dh fookfgr iqf=;ka & muds }kjk vius firk ds 1@2 fgLlk ds gd dh ?kks"k.kk rFkk dCts ds fy, okn izLrqr fd;k x;k & mRrjkf/kdkj tutkfr dh izFkk ls fofu;fer gS & ,slh izFkk lkfcr ugha dh xbZ fd fookfgr iqf=;k¡ vius firk dh laifRr fojklr esa izkIr djus dh gdnkj gSa & Hkhy tkfr esa izpfyr izzFkk & fookfgr iqf=;k¡ vius firk dh laifRr esa fgLlk izkIr ugha djrh & os firk dh laifRr esa fgLlk izkIr djus dh gdnkj dsoy rHkh gS tc muds ifr ?kj tekbZ ds :i esa jgrs gksa & fopkj.k U;k;ky; }kjk okn [kkfjt & fopkj.k U;k;ky; dk fu.kZ; fLFkj fd;k x;kA , vkb vkj 1925 ih lh 267 rFkk , vkb vkj 1952 ,l-lh- 231 vuqlfjrA 1983 jk fu 64 ¼mPp U;k-½ voyafcrA ¼iSjk 15 ls 19½
¼3½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 164 & Hkhy tkfr ds nks HkkbZ & ,d HkkbZ xuir rhu fookfgr iqf=;ka NksM+dj e`r & Hkhy tkfr dh izzFkk vuqlkj & e`rd dk fgLlk mlds HkkbZ lkset;k dks U;kxfer gksxk rFkk e`rd dh fookfgr iqf=;ksa dks ugha & lkset;k }kjk viuk 1@2 fgLlk rFkk 1@2 fgLlk tks mlus xuir ls fojklr esa izkIr fd;k ds fodz; fof/kekU; gSa rFkk xuir dh fookfgr iqf=;ksa ij vkc)dj gSA ¼iSjk 20½
(1) Hindu Succession Act, 1956 -- S. 2 (2) -- married daughters of Scheduled Tribe by cast of Bhil -- inheritance -- provisions of Act not applicable -- inheritance is governed by Tribe custom -- such custom not proved under which they are entitled to inherit property of their father. AIR 1925 PC 267 and AIR 1952 SC 231 followed. 1983 RN 64 (HC) relied on. [Paras 8, 10 and 18
(2) Land Revenue Code, 1959 (M.P.) -- S.164 -- married daughters by cast of Bhil -- suit filed by them for declaration of title and possession of 1/2 share of their father -- inheritance is governed by Tribe custom -- such custom not proved that married daughters are entitled to inherit property of their father -- prevailing custom in Bhil cast -- married daughters do not receive share in property of father -- they are entitled to receive share in father‘s property only if their husbands live as Ghar Jamai -- suit dismissed by trial Court -- judgment of trial Court upheld. AIR 1925 PC 267 and AIR 1952 SC 231 followed. 1983 RN 64 (HC) relied on. [Paras 15 to 19
(3) Land Revenue Code, 1959 (M.P.) -- S. 164 -- two brothers of Bhil cast -- one brother Ganpat died leaving three married daughters -- as per custom of Bhil cast -- share of deceased devolved upon his brother Somjya and not married daughters of deceased -- sales by Somjya of his 1/2 share and 1/2 share which was inherited by him from Ganpat are valid and are binding on married daughters of Ganpat. [Para 20
1. This second appeal under section 100 of the Code of Criminal Procedure has been filed against the judgement dated 2.9.1995 passed by the first Appellate Court allowing the appeal of the respondent No.1 to 3 and reversing the judgment of the trial Court. The trial Court by judgment dated 11.4.1987 passed in civil suit No. 119-A/84 had dismissed the suit filed by the respondent No.1 to 3 and the first Appellate Court by allowing the appeal has decreed the suit of the respondents No.1 to 3.
2. The respondents No.1 to 3 had filed civil suit No. 119-A/84 pleading that the suit property originally belonged to the two brothers Ganpat and Somjya. The plaintiffs are daughters of Ganpat. No partition of properties had taken place between Ganpat and Somjya and after the death of Ganpat, Somjya was giving the agricultural proceeds to the respondents No.1 to 3 in accordance with to their share and 2 years prior to filing of the suit, the respondent No.4 Somjya stopped giving the share to the respondent No.1 to 3 and had illegally sold the suit land to the appellants by executing the sale-deed dated 4.3.1968 (Ex. D/1) and 7.2.1973 (Ex. D/2) in favour of the originally appellant Tiwaribai, the sale-deed dated 20.8.1982 (Ex. D/4) in favour of the originally appellant No.2 Ratan and the sale-deed dated 23.1.1969 (Ex. D/3) in favour of the respondent No.7 Bhiliya. Consequently the respondents No.1 to 3 (plaintiffs) filed the suit for declaration and possession.
3. The respondent No.4 Somjya had not opposed the suit. A joint written-statement was filed by the appellants as well as the respondent No.7 taking the plea that as per the customs prevailing in the caste concerned, the respondents No. 1 to 3 had lost their right in the suit property after their marriage and, therefore, Somjya was the sole owner of the property and the sale-deeds were lawfully executed by Somjya in favour of these respondents.
4. The trial Court by the judgment dated 11.4.1987 dismissed the suit filed by the respondents No.1 to 3 on reaching t6 the conclusion that as per the customs prevailing in Bhil Caste, the respondents No.1 to 3 had lost their right on the suit property after their marriage. The trial Court also found that the partition between Ganpat and Samjya was proved on the basis of the contents of the sale-deeds Exs. D/1 and D/3. The trial Court took the view that Ganpat had not taken any objection to the sale-deeds Exs. D/1 to D/3 which were executed during his lifetime, therefore, these sale-deeds are binding on the respondents No.1 to 3 who are the daughters of Ganpat.
5. The first appellate Court by the judgment dated 2.9.1995 while allowing the appeal of the respondents No.1 to 3 has decreed their suit. The first Appellate Court found that the present appellants who had raised the plea of prevailing customs failed to prove the custom existing in the caste that the married daughter will not get any share in the property of the father. The first Appellate Court held that the sale-deeds dated 7.2.1973 (Ex. D/2) and dated 20.8.1982 (Ex. D/4) executed by Somjya were in excess of his share, therefore, those two sale-deeds were declared null and void and it was directed by the first Appellant Court that the respondents No.1 to 3 (plaintiffs) are entitled to receive the possession of the subject-matter of those sale-deeds from the present appellants. Aggrieved with the judgment, the present appeal has been preferred.
6. This Court by order dated 22.4.2002 while admitting the appeal had formulated the following substantial question of law:-
"(1) Whether the lower appellate Court was justified in reversing the decree passed by the trial Court which had dismissed the suit?
(2) Whether the sale-deed Exhibit D/1, D/2, D/3 and D/4 executed by Somajya are binding upon the plaintiffs and they being successor-in-title representing the other branch of Ganpat-brother of Somajya?
(3) When admittedly Somajya had a share in the property being a co-owner, whether sale-deed
