A.S.No.905 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 22.02.2023

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

A.S.No.905 of 2018

1.Saravanan

2.Venkatachalam

.. Appellants

Vs.

1.Semmayee

2.Poonkodi

3.Murugan

.. Respondents

Prayer: Appeal Suit is filed under Section 96 of the Civil Procedure Code,

to set aside the judgement and decree dated in O.S.No.30 of 2014 on the file

of the II Additional District Court, Salem, dated 06.10.2017.

For Appellant

: Mr.C.Jagadish

For Respondent

:

(For R1 & R2)

: Mr.K.Siva Subramanian

(For R3)

: No Appearance

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A.S.No.905 of 2018

J U D G M E N T

The lis on hand raises an important question, whether the tribal

women in the State of Tamil Nadu can be excluded from their share in the

family property under the Hindu Succession Act, 1956.

2.The facts as detailed in the impugned judgment, broadly are not

disputed between the parties and more so, the Trial Court decreed the suit in

favour of the plaintiff, who claimed equal share in the family property by

instituting a suit for partition. The Trial Court invoked the provisions of the

Hindu Succession Act, 1956 and held that the Tribal Women are also

entitled for equal share in their family property on par with the other male

coparceners and the defendants in the suit has chosen to file the present

appeal suit.

3.The suit was instituted by the respondent herein: wife and daughter

of Mr.Ramasamy, seeking a partition of the suit mentioned property, which

belonged to Mr.Ramar @ Ramasamy. The plaintiffs claimed that they are

entitled for 2/5 equal and separate shares in the suit mentioned property. The

defendants filed a written statement denying the plaint averments. The

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A.S.No.905 of 2018

defendants denied the right to property to the plaintiffs on the ground that

some of the properties were sold in favour of the husband of the second

plaintiff and regarding the other properties, there was an oral partition

between the parties and therefore, the plaintiffs have no right to claim any

share in the suit mentioned property.

4.The Trial Court adjudicated the issues with reference to the

documents and evidences and formed an opinion that the defendant had not

established their case and therefore, the plaintiffs are entitled for equal share

in the suit mentioned property as prayed for.

5.The learned counsel for the appellant, beyond the facts adjudicated

by the Trial Court, raised an important legal question that the tribal women

are expressly excluded from the application of the provisions of the Hindu

Succession Act. Section 2(2) of the Hindu Succession Act, 1956 stipulates “

Notwithstanding anything contained in sub-section (1), nothing contained

in this Act shall apply to the members of any Scheduled Tribe within the

meaning of clause (25) of Article 366 of the Constitution unless the

Central Government, by notification in the Official Gazette, otherwise

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A.S.No.905 of 2018

directs.” Relying on the above provision, the learned counsel for the

appellant reiterated that, the scheduled tribe women are expressly excluded

from the provisions of the Act and therefore, the Trial Court has erroneously

applied the Hindu Succession Act and granted relief in the suit, which is

untenable.

6.The learned counsel for the respondent strenuously objected to the

said contention by stating that the defendants have miserably failed to

establish the custom and practice, if any prevailing amongst the community,

where the plaintiff and defendant belong and in the absence of any such

proof to establish such custom of practice, the Hindu Succession Act alone

should be applied and therefore, the Trial Court is right in granting the relief

of partition to the plaintiffs. It is further contended that the tribal women

cannot be d