Case Note & Summary
The case involves a dispute between brothers and sisters belonging to the Gond tribe over the inheritance of their deceased father Bapurao Kodape's property. The daughters (plaintiffs) filed a suit for partition and separate possession, claiming equal share as legal heirs under the Hindu Succession Act, 1956. The sons (defendants) contended that the suit property was self-acquired and that Gond customary law excludes daughters from inheritance. The trial court framed issues including whether the property was ancestral and whether the plaintiffs were entitled to partition. The trial court held that the property was not ancestral but was the self-acquired property of Bapurao Kodape. However, it held that the plaintiffs were entitled to 1/4th share each, rejecting the defendants' claim of custom. The lower appellate court confirmed this finding. In second appeal, the High Court considered whether the Hindu Succession Act applies to members of Scheduled Tribes and whether the alleged custom was proved. The court noted that under Section 2(2) of the Hindu Succession Act, the Act applies to Scheduled Tribes unless a contrary custom is proved. The burden of proving such custom lies on the person asserting it. The appellants (sons) examined two witnesses and relied on a book 'Gondwana and the Gonds' by Dr. B.S. Mehta. The court found that the oral evidence was insufficient to establish the custom as ancient, certain, and reasonable. The book was not proved as a recognized legal treatise and its author was not examined. The court held that the appellants failed to discharge the burden of proof. Consequently, the Hindu Succession Act applies, and the daughters are entitled to equal share. The High Court dismissed the second appeal, confirming the concurrent findings of the courts below.
Headnote
A) Hindu Law - Succession - Applicability of Hindu Succession Act to Scheduled Tribes - Section 2(2) of Hindu Succession Act, 1956 - The Act applies to members of Scheduled Tribes unless it is proved that the custom governing them is to the contrary. The burden of proving such custom lies on the person asserting it. The court held that the appellants failed to prove the alleged Gond custom excluding daughters from inheritance, as the evidence was insufficient to establish the custom as ancient, certain, and reasonable. (Paras 4-8) B) Evidence - Custom - Proof of Custom - Sections 48, 49, 50 of Indian Evidence Act, 1872 - A custom must be ancient, certain, continuous, and reasonable. The court found that the appellants' evidence, consisting of oral testimony of two witnesses and a book excerpt, did not meet the standard of proof required to establish a valid custom. The book excerpt was not proved as a recognized legal treatise, and the oral evidence was vague and contradictory. (Paras 5-7) C) Hindu Law - Intestate Succession - Equal Share of Daughters - Section 8 of Hindu Succession Act, 1956 - In the absence of a proved custom to the contrary, the Hindu Succession Act applies to members of Scheduled Tribes. The daughters of the deceased are Class I heirs and entitled to equal share along with sons. The court upheld the concurrent findings of the courts below granting the daughters 1/4th share each in the suit property. (Paras 8-9)
Issue of Consideration
Whether daughters of a deceased Gond tribe member are entitled to equal share in the intestate property along with sons, or whether the Gond customary law excluding daughters from inheritance prevails over the Hindu Succession Act, 1956.
Final Decision
Second Appeal dismissed. The concurrent findings of the courts below are confirmed. The daughters are entitled to 1/4th share each in the suit property. No order as to costs.
Law Points
- Hindu Succession Act
- 1956 applies to Scheduled Tribes in absence of proof of custom to contrary
- Burden of proof of custom lies on person asserting it
- Custom must be ancient
- certain
- reasonable and not opposed to public policy
- Daughters entitled to equal share in intestate succession
