2002 Supreme(MP) 15

S.P. Khare, J.
Kailash Singh v. Mewalal
Civil Revision No. 1696 of 2000 (J); Decided on 2.1.2002.*

Headnote:(1) Hindu Succession Act, 1956 -- Ss. 6 and 2(2), 2(1)(c) customary law of Scheduled Tribe has been preserved -- Hindu Law does not apply unless custom to that effect is proved -- widow whether having share in the property of her deceased husband has to be proved.

       

        (2) Civil P.C., 1908 -- O. 39, Rr. 1 and 2 -- strong prima facie case not found in favour of plaintiff -- refusal to grant temporary injunction is proper.

       

        ¼1½ fganw mRrjkf/kdkj vf/kfu;e] 1956 && /kkjk 6 rFkk 2¼2½] 2¼1½¼10½ && tutkfr dh :f<+tU; fof/k ifjjf{kr j[kh xbZ gS && fganw fof/k ykxw ugha gksrh tc rd ml vk‘k; dh :f<+ lkfcr ugha gks tkrh && D;k fo/kok dk vius e`r ifr dh laifRr esa va‘k] lkfcr fd;k tkuk gksrk gSA

       

        ¼2½ flfoy izfdz;k lafgrk] 1908 && vk- 39] fu-1 rFkk 2 && oknh ds i{k esa lcy izFke n`V~;k ekeyk ugha ik;k x;k && vLFkk;h O;kns‘k iznku djus ls bUdkj mfpr gSA

       

        This is a revision by the plaintiff against the order by which the defendants appeal under Order 43 rule 1 (r) CPC has been allowed and the order of temporary injunction passed by the trial Court in favour of the plaintiff has been set aside.

        The lands in dispute belonged to Biran Singh Gond belonging to scheduled tribe. After his death these land came into possession of his widow Shantibai. According to the plaintiff she was absolute owner of these lands; she bequeathed the same to the plaintiff who is son of her brother by her will dated 19.4.1992; she died on 16.8.1992 and the plaintiff came into possession of these lands on her death. On the other hand the defendants who are the reversioners of the husband of Shantibai claim that she was only a limited owner of the lands in dispute after the death of her husband; the will on which the plaintiff is relying is forged and the defendants are in actual possession of the lands after the death of Shantibai.

        The trial Court held on the basis of mutation entry in favour of the plaintiff that he is in possession of the lands in dispute and issued the order of temporary injunction in his favour. The appellate Court has held that the plaintiff does not have a strong prima-facie case because - (a) the Hindu Succession Act, 1956 not being applicable to Gonds, a scheduled tribe, by virtue of section 2(2) of the Act, Shantibai was prima-facie only a limited owner of the lands as per traditional Hindu Law and she could not execute the will in favour of her nephew and (b) the unregistered will requires proper proof of its execution and attestation and that can be done during the trial of the suit only and (c) the lands are in possession of the "defendants. On these prima facie findings, the order of temporary injunction issued by the trial Court has been vacated.

        After hearing the learned counsel for both the sides this Court is of the opinion that the order of the appellate Court is correct. The provisions of Hindu Succession Act, 1956 do not pro tanto apply to the members of the scheduled tribe as per section 2(2) of this Act. The customary law of scheduled tribe has been preserved by this provision. It has been argued on behalf of the plaintiff that it is well settled through a series of decisions that the Gonds in Madhya Pradesh are governed by Hindu law as they have adopted it as a part of their custom and usage. But this does not solve the dispute in the present case. The crucial question is whether it is the traditional Hindu law which was in force before the Hindu Succession Act, 1956 came into force would apply which gave to the widow a "limited estate" or the Hindu law as modified by this Act would apply which gives to a widow the full ownership. This Act by its own force would not apply to the scheduled tribe because of the non-obstante clause in section 2(2) but if it is proved that according to the customary law of a particular scheduled tribe, a widow is entitled to inherit the property of her husband as full owner, she may get absolute title to the property of her husband. Therefore, there should be proper pleadings and proof of such custom. In the present case, as observed by the appellate Court there is no pleading in that respect and the proof is yet to come during the trial. The plaintiff must-plead what is the customary law of Gonds in this respect and prove the same. In this context section 2(1)(c) of the Act may assume importance which provides that this Act applies to "any other person" who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. The applicability of section 2(1)(c) would depend upon the pleadings and proof and that can be decided by the trial Court after the evidence of both the sides has been recorded. It is not possible to decide this question in this revision.

        The view taken by the appellate Court at this stage cannot be said to be unreasonable and is not open to interference in revision. It is made clear that it would be open to plaintiff to plead and prove whether the Hindu law as modified by the statutory law i.e. Hindu Succession Act, 1956 is a part of his customary law and whether according to such law Shantibai had acquired full title to the property left by her husband. The plaintiff may be permitted to amend his plaint fee for this purpose.

       

        The revision is dismissed.