(A). Sardar Singh v. Govind Singh Died Through Lrs.

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR SA No. 342 of 2003 • (A). Sardar Singh S/o Late Budhan Singh Aged About 35 Years R/o Village Sundarpur, Tehsil Sonhat, District Koria Chhattisgarh 1.1 - (B). Shivrath Singh S/o Late Budhan Singh Aged About 32 Years R/o Village Sundarpur, Tehsil Sonhat, District Koria Chhattisgarh 1.2 - (C). Kamleshwar Singh S/o Late Budhan Singh Aged About 29 Years R/o Village Sundarpur, Tehsil Sonhat, District Koria Chhattisgarh. 1.3 - (D). Lalan Singh S/o Late Budhan Singh Aged About 20 Years R/o Village Sundarpur, Tehsil Sonhat, District Koria Chhattisgarh • (Deleted) Kaushilyabai As Per Hon'ble Court Order Dated 23-06-2014. • Smt.

Sumitra (Died) Through Lrs.

3.1 - (A). Pratap Singh S/o Kailal Gond Aged About 40 Years R/o Village - Charcha, Tahsil - Baikunthpur, District Koria Chhattisgarh 3.2 - (B). Rajkumar Singh S/o Jailal Gond, Aged About 36 Years R/o Village - Charcha, Tahsil - Baikunthpur, District Koria Chhattisgarh 3.3 - (C). Vijay Singh S/o Jailal Gond Aged About 32 Years R/o Village - Charcha, Tahsil - Baikunthpur, District Koria Chhattisgarh 3.4 - (D). Soni Bai D/o Kailal Gond Aged About 50 Years W/o Rama Singh, R/o Village - Dondibhara, Tahsil - Baikunthpur, District Koria Chhattisgarh ---- Appellants

Versus

1. Govind Singh Died Through LRs.

1 (A). Ranvijay Singh S/o Late Govind Singh Aged About 44 Years R/o Village Majhartola Up Tahsil - Sonhat, District Koriya Chhattisgarh 1 (B). Bhuwan Singh (Died) Through Lrs.

1(B)(a) Rambai Wd/o late Bhuwan Singh, aged about 45 years 1(B)(b) Khira Bai D/o late Bhuwan Singh, aged about 27 years 1(B)(c) Hemantkali D/o late Bhuwan Singh, aged about 25 years 1(B)(e) Laxmi Bai D/o late Bhuwan Singh, aged about 20 years All resident of Majhartola, P.S., Post and Tahsil - Katghori - Koriya (CG) 1 (C). Rudra Singh S/o Late Govind Singh Aged About 41 Years R/o Village Majhartola Up Tahsil - Sonhat, District Koriya Chhattisgarh 1 (D). Nagendra Singh S/o Late Govind Singh Aged About 38 Years R/o Village Majhartola Up Tahsil - Sonhat, District Koriya Chhattisgarh 1 (E). Revat Singh S/o Late Govind Singh Aged About 35 Years R/o Village Majhartola Up Tahsil - Sonhat, District Koriya Chhattisgarh

2. Smt.

Kaikai (Died) Through LRs.

2.1 - (B). Shiv Mangal Singh S/o Mohar Sai Gond Aged About 25 Years

3. Surendra Nath Singh S/o Ramsagar Singh Aged About 35 Years Occupation - Service, Present Address Katkona Colliery, Police Station And Post Patan, Tehsil Baikunthpur, District Surguja (Now Koria) Chhattisgarh

4. The State Of Madhya Pradesh (Now Chhattisgarh) Through Collector Surguja, At And Post Ambikapur, District Surguja Chhattisgarh ---- Respondents For Appellant :

Shri A.K.Prasad, Advocate For Respondent / State :

Shri Aditya Bharadwaj, Panel Lawyer for the State.

S.B.:

Hon'ble Shri Justice Manindra Mohan Shrivastava Judgment On Board 29/08/2019 This appeal is directed against impugned judgment and decree dated 16/12/2002 passed in Civil Appeal No.12-A/2002 arising out of judgment and decree dated 01/04/1988 passed in Civil Suit No.11-A/84 whereby the appeal of the appellant / plaintiff has been dismissed affirming judgment and decree passed by the learned Trial Court.

2.

This appeal was admitted on following two substantial question of law - i) Whether the wife of Roop Sai namely Nanki Bai who executed the sale deed, had limited interest being the widow in the property of Roop Sai ? ii) Whether the suit property had devolved on the plaintiffs as reversioner after death of their mother in the year 1978 ?

3.

The appellant / plaintiffs filed a suit against purchaser impleading one of their sister - Kaushalya also and subsequent purchaser on the pleadings inter alia that the plaintiffs and defendant No.2 - Kaushalya are daughters of one Roopsai who

died in the year 1958. According to the plaintiff's pleading, in accordance with law of succession which was applicable to plaintiff's tribal community of Gond in the State of Koriya (Baikunthpur) upon death of male, when there were no male descendants (heirs), the property would devolve upon the survivor widow who could enjoy only limited interest and not absolute interest in the property. The plaintiff's mother - Nanki Bai, widow of Roopsai had only limited right of maintenance out of the property which she received from her deceased husband but she had no right to sell the property which was received by her from her husband. It was pleaded that unless there was legal necessity, the widow mother could not have sold the property. Later on, the plaintiffs came to know that their mother sold a part of the property to defendant No.1.

According to the plaintiff's pleading, out of total area of 27.45 acres in the hands of Nanki Bai, she sold 5.59 acres of land to defendant No.1 - Govind Singh for a consideration of Rs.800/- and later on, a registered deed of sale was also prepared on 28/09/1965. A parcel of land admeasuring 7.56 acres was also sold by Nanki Bai on 14/10/1969 for a consideration of Rs.1500/- to defendant - Govind Singh vide registered sale deed 16/10/1969. According to the plaintiffs, late Nanki Bai could not have sold the property. According to the plaintiffs, after death of Nanki Bai, Govind Singh ceased to have any interest in the property by virtue of sale deed executed in his favour. By way of amendment, pleadings with regard to subsequent transfer of interest in the property in favour of defendant No.3 were made. 4.

According to plaintiff's pleading, Gond tribes residing in the State of Koriya were governed by Hindu Law of Succession and not by any other customary law of succession.

5.

The defendant / purchaser - Govind Singh, defendant No.3- Surendra Nath Singh and other defendants, except Kaikai, resisted plaintiff's claim stating that

Hindu Law was not applicable to Gond tribe residing in Koriya State and under their own customary law of succession, upon death of husband, the widow was entitled to take full interest in the property and not merely limited interest and therefore, Nanki Bai had all the right to sell the property. 6.

Learned Trial Court framed as many as 8 issues. The most important issue was as to whether Hindu Succession Law of Mitakshara school was prevalent and applicable to the parties who are Gond Tribes and whether after death of Roopsai, his wife - Nanki succeeded to only limited interests. Learned Trial Court also framed issues as to whether after death of Nanki, the property in dispute reverted to the plaintiffs as the reversioners. Learned Trial Court also framed issue as to whether the property was sold by Nanki Bai without any legal necessity. Learned Trial Court recorded all the findings against the plaintiff and having recorded that the plaintiffs failed to prove that in the matter of succession, Hindu Law of Succession is applicable to the parties who are Gond tribes, dismissed the suit. 7.

Aggrieved by the judgment and decree of the Trial Court, plaintiffs filed an appeal which was also dismissed by the learned lower Appellate Court holding that upon death of a Kashtkar, in the absence of there being a son, grand son or great grand son, the widow would succeed to the property and the daughters would not get any interest in the property.

8.

Learned counsel for the appellant would argue that the learned Courts below, while appreciating the evidence of the plaintiffs and the defendants, have ignored clear admission made by the defendant's witnesses that in the matter of succession, Hindu Law of Succession was made applicable and prevalent amongst Gond Tribes of Koriya State and upon death of a Kashtkar, widow would take only limited interest and she could sell the property only on legal necessity, otherwise,

she had no absolute right to sell the property and after her demise, the property would devolve upon the daughters. He would argue that the evidence of defendant's witnesses, particularly, what has been stated by them in the crossexamination, fully supported the plaintiff's case but the Courts below, without properly appreciating the evidence, have recorded a perverse finding that the plaintiff failed to prove that the Hindu Law is applicable and upon death of a Kashtkar, widow would take only limited interest and she could not sell the property except on account of legal necessity and after her death, the property would revert to the plaintiff.

He would further argue that the learned Courts below, while appreciating the evidence, have committed patent illegality in ignoring that once there was an admission on the part of the defendants, that was the best piece of evidence and learned Courts below erred in recording finding against the appellant. Reliance has been placed on decision in the case of Union of India v. Ibrahim Uddin and anr., 2012 (8) SCC 148 and Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar v. Chandran and ors, 2017 (3) SCC 702.

Reliance has been placed on judgment of Madhya Pradesh High Court in the case of Manraj v. Jaikaran and ors. decided on 11/08/1986 in S.A.No.436/81, photo copy of which was placed before this Court. In that case, death has taken place in the year 1947 whereas in the present case, death of Roopsai, according to the petitioner, had taken place in the year 1958. In that case, the law with regard to succession was examined which was prevalent on the date in that case i.e. in the year 1947 based on certain provisions contained in C.P. States Land Tenure Order, 1949.

9.

Learned State counsel submits that the State is a formal party. 10.

I have heard learned counsel for the parties and perused the record.

11.

The plaintiff's case has been that there was no separate customary law applicable to the Gond tribes in the Koriya State and it is the Hindu Law of Succession which was prevalent and applicable in their community under which, the widow would only have limited interest and she could sell the property only out of legal necessity and she did not enjoy any absolute interest in the property. The defendant's case has been that the widow would take the property in absolute right. The plaintiffs have examined as many as three witnesses namely Sumitra Bai, Jaikaran Singh, Sheshmani Prasad and Hiralal who have stated regarding the customary law applicable to Hindu in the matter of succession that the widow would have limited right to maintain herself during her lifetime and witnesses have stated that she could sell the property only on legal necessity and only on her death, the property would devolve upon the daughters.

12.

On the other hand, defendant's witnesses namely Govind Ram (DW1), Sukhraj (DW2), Gajmohar Singh (DW3) and Drupal Singh (DW4) have stated that after death, as per customary law of succession prevailing in their community, the property would be received by the widow and daughters would not get any right. These witnesses in their examination-in-chief have stated that in their customary laws, the daughters are not successors and they do not get any property upon death of either their father or mother. Thus, according to these witnesses, upon death of a person, his widow would be entitled to interest. The daughters would not get anything.

Govind Ram (DW1) in his cross-examination has stated that after death of son, his widow is entitled to succeed to the property who could earn and live upon the property during her life time and after her death, the property used to be given to the daughters.

Sukhraj (DW2) has however stated in his cross-examination that the

daughters are not entitled to any successory rights. He also states that in Sunderpur, daughters have succeeded to the property of their father. Gajmohar Singh (DW3) in his cross-examination states that what customary law is entitled, he cannot definitely say, but according to him, the daughters were not given any successory rights as informed by him by his father. Drupal Singh (DW4), in his cross-examination states that regarding grant of successory rights to daughters, in the new age, they practice Hindu law. 13.

It is, thus, found that the plaintiffs and defendants both have come out with their respective evidence and irrespective of preponderance of probability, it is clear that it is a matter in the realm of appreciation of evidence. It is not a case that the defendants have admitted plaintiff's case in the pleadings. The defendants have denied plaint allegations. It also cannot be denied that there are discrepancies in what has been stated by the defence witnesses in the cross-examination and examination-in-chief.

14.

In order to establish that in the tribe community of Gond in Koriya State, only Hindu law was prevalent and applicable, much more evidence was required to be led. The plaintiffs were required to lead specific instances that upon death of a Kashtkar leaving behind no successors, the widow enjoyed only limited interest and after her death, the property actually devolved upon surviving female members of the family. Except making statement that Hindu law is applicable, no specific instances have been given in the plaintiff's evidence. The burden was on the plaintiffs to prove this aspect. The findings, therefore, as to whether Hindu Law was applicable or not, is essentially a finding of fact and in the absence of patent perversity in the order, this Court is not inclined to interfere with those findings. 15.

It is also to be noticed that having specifically pleaded that Nanki Bai had

sold the property in dispute vide registered sale deed in favour of defendant No.1, the plaintiffs have not sought any relief of declaration that the sale deed is void ab initio. Having clearly pleaded in the plaint that the property was sold by registered sale deed, unless a relief of getting the sale deed avoided was appropriately made, the suit was liable to be dismissed only on this ground. 16.

In the result, no case is made out for interference by this Court. This appeal is accordingly dismissed. Parties to bear their respective costs. Let appellate decree be drawn accordingly.

Sd/- ( Manindra Mohan Shrivastava ) Judge Deepti