IMPORTANT POINT
Rules of Succession may indeed provide different treatment, not necessarily equal and yet may not fall foul of Article 14 of Constitution.

Rohit B. Deo, J.—Heard Shri D.R. Bhoyar, the learned counsel for the appellants and Shri H.D. Dangre, the learned counsel for the respondents.

2. The internecine dispute between brothers and sisters who belong to the Gond tribe has reached this Court in Second Appeal. At stake, is the house property and agricultural land (“the suit property” for short) owned by their deceased father Bapurao Kodape, who indubitably died intestate. Both the Courts below have concurrently held that the daughters of deceased Bapurao Kodape have equal share in the suit property alongwith the sons. This finding is assailed by the sons of Bapurao Kodape who contend that the Gond customary law excludes daughters from inheritance.

3. Pleadings:

3.1) The daughters of deceased Bapurao Kodape – who shall be referred to as the plaintiffs instituted Regular Civil Suit 159 of 2010 seeking decree of partition, separate possession and permanent injunction. The plaintiffs aver that the suit property is ancestral property and since Bapurao Kodape died intestate leaving behind the plaintiffs – daughters and defendants – sons as the only legal heirs, the plaintiffs and the defendants have equal share in the suit property. The plaintiffs then aver that although their names are duly mutated in the revenue record, defendant 1 Babulal is in cultivating possession of the agricultural land and the plaintiffs are excluded from the proceeds thereof. The plaintiffs issued notice dated 21.12.2009 calling upon their brothers – the defendants to effect partition, but in vain.

The defendant 1 Babulal filed written statement (Exh. 9) stating that the suit property is not ancestral and is the self acquired property of deceased Bapurao Kodape. The defendant 1 admits that the names of the plaintiffs are duly mutated in the revenue record. The defendant 1 however, asserts that the revenue entries does not confer ownership and serve a limited fiscal purpose. The defendant 1 denies that the plaintiffs are entitled to share in the property and contends that tribal customs exclude the daughters from inheritance. The defendant 2 adopted the written statement of defendant 1 by praecipe dated 13.12.2010.

3.2) Issues framed by the trial Court:

The trial Court framed the following issues:

1. Whether it is proved that, suit property is Ancestral ancestral property of Bapurao Kodape? ......Negative.

2. Whether it is proved that plaintiffs are entitled for partition of ¼ share each as prayed? ......Affirmative.

3. Whether it is proved that, suit property cannot be partitioned as per provisions of Scheduled Tribes Rules? ......Negative.

4. Whether it is proved that plaintiffs are entitled to mesne profit as prayed? ......Affirmative.

5. What relief the plaintiffs are entitled? ......As per final order.

3.3) Evidence:

Plaintiff 2 Smt. Kamalbai Madavi stepped into the witness box. In the examination in chief, she deposed in consonance with the plaint averments. Kamalbai proved the 7/12 extract of the agricultural field survey number 172/1 in which the names of the plaintiffs are recorded as owners alongwith their brothers Babulal and Shalik (Exh. 20). The 7/12 extract of field Survey number 172/3 which similarly records the names of the daughters and sons of deceased Bapurao as the owners, is proved and marked Exh. 21. Form 8A which is the Jamabandi Patrika of field survey number 107 in which the names of the daughters and sons of the deceased Bapurao Kodape are recorded as owners is proved and marked Exh. 22. The property tax register of Gram Panchayat Satoda is proved and marked Exh. 26 to demonstrate that the names of the plaintiffs and the defendants are recorded as owners of the house property. In response to a question in the cross examination, Kamalbai states that it is true that daughters get share in the property in accordance with the customs of the tribal community.

3.3(i) The defendants filed praecipe dated 11.11.2011 Exh. 34 stating that they did not w