2025:BHC-NAG:10813 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO.380 OF 2023 Sau. Barula w/o Namdeo Kodape, aged about 45 years, Occ. Household, r/o manora, Tahsil Ballarpur, Dist. Chandrapur.

... APPELLANT VERSUS

1. Smt. Suman Ramaji Tekam aged about 68 years, Occ. Household.

2. Shri Atul s/o Ramaji Tekam, aged about 45 years, Occ. Labour.

3. Shri Nikhil s/o Ramaji Tekam, aged about

40 years, occ. Labour.

Nos. 1 to 3 r/o Warura Road Tq. Rajura, Dist. Chandrapur.

4. Sau. Shital w/o Ravindra Kodape, aged about 35 years, Occ. Household, r/o Panchgaon (Temburda), tq. Warora, Dist.

Chandrapur.

… RESPONDENTS _____________________________________________________________

Shri Madhur A. Deo, Advocate for the appellant.

None appeared for Respondent.

______________________________________________________________

CORAM : PRAVIN S. PATIL, J.

CLOSED ON : 20.09.2025.

PRONOUNCED ON : 10.10.2025.

JUDGMENT :

1. The present appellant being aggrieved by the judgment and order dated 18.07.2023 passed by the learned District Judge, Chandrapur in Regular Civil Appeal No.47/2016 preferred the present appeal.

2. This Court after hearing the appellant in the matter, by order dated 11.06.2024 framed the following substantial question of law :

Whether the Trial Court as well as the Appellate Court erred by not considering the fact that the burden was upon the respondents to show that the custom within the Gond Community which exclude right of inheritance of female members in the ancestral property of father?

3. In the light of question of law framed by this Court, some material facts of the suit are necessary to be discussed in the matter. For the sake of convenience the appellant is hereinafter referred to as ‘Plaintiff’ and respondents as ‘Defendants’.

4. The appellant is the original plaintiff and the daughter from first wife of deceased Ramaji. Respondent no.1 is the second wife of deceased Ramaji and respondent nos.2 to 4 are the children of respondent no.1 born out of the second marriage of deceased Ramaji.

5. The plaintiff filed a suit for declaration, partition and separate possession against the House Property no.152 ad-measuring area 870 square feet situated at Mauza Rajura, Peth Ward No.3 and construction thereof.

6. Undisputedly, the Plaintiff and Defendants are ‘Gond’ by caste i.e. Scheduled Tribe. Deceased Ramaji and mother of the Plaintiff namely Sundarabai (1^st wife) was residing in the suit property, which is an ancestral property.

7. After the death of Sunderabai, Ramaji has performed second marriage with present Defendant no.1 Suman. Ramaji was expired on

29.04.1993.

8. It is further stated by the Plaintiff that she has performed marriage with one Namdeorao Kodape and residing at Manora. It is her case that she was regularly paying the tax of the suit property though the property is in possession of the Defendants. She further stated that the partition was not effected between the Plaintiff and the Defendants and therefore, they jointly owned the property.

9. According to the Plaintiff, the provisions of Hindu Succession Act, 1956 are not applicable to the Scheduled Tribe/Gond as they are excluded as per Section 2(2) of the Hindu Succession Act. Therefore, it is her submission that as per the customs, the daughter is entitle to inherit the property of her father, if the same being the ancestral property. However, the Defendants are refused for the partition. She therefore issued notices to claim partition but the Defendants refused for the same. Hence, she has instituted the suit praying partition and separate possession of her 1/5^th share in the suit property.

10. The present Defendants contested the suit filed by the Plaintiff. They came with a submission that the Plaintiff is not the daughter of the deceased Ramaji. According to them, deceased Ramaji never performed marriage with the mother of the Plaintiff. The Plaintiff, by hand in gloves with the Revenue Officer, has recorded her name in the suit property, therefore, she h