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Bhanu Ram vs Mahar Singh (Died) Through Lrs. 40 … on 13 November, 2019

1

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Second Appeal No.163 of 2006

1. Bhanu Ram, S/o Shri Babulal Gond, aged about 35 years.

2. Santram (dead) through LRs: –

2(a). Agasiya Bai, W/o Late Santram, aged about 44 years.

2(b). Kamal Singh, S/o Late Santram, aged about 28 years.

2(c). Jayant, S/o Late Santram, aged about 25 years.

All No.2(a) to 2(c) R/o Village Amadula, Tahsil Balod, District Durg,
now Balod (C.G.)

3. Narendra, S/o Shri Babulal Gond, aged about 30 years.

4. Preet Ram, S/o Shri Babulal Gond, aged about 28 years.

All No.1, 3 and 4 farmer and resident of Village Aamadula, Tahsil
Balod, District Durg (C.G.)
(Plaintiffs)
—- Appellants

Versus

1. Mahar Singh (dead) through LR-

(a) Bhuwan Ram Darra, S/o Late Mahar Singh, aged about 40
years, R/o Village Telguda, Tahsil Charama, District Kanker (C.G.)

2. State of Chhattisgarh, through Collector, Kanker, Tahsil, P.O. and
District Kanker (C.G.)
(Defendants)
—- Respondents

For Appellants: Mr. R.N. Jha, Advocate.
For Respondent No.1(a): –
Mr. Raghavendra Pradhan and Mr. Shikhar
Sharma, Advocates.
For Respondent No.2 / State: –
Mr. Aakash Pandey, Panel Lawyer.

Hon’ble Shri Justice Sanjay K. Agrawal

Judgment On Board

13/11/2019

1. This second appeal preferred by the plaintiffs / appellants was
2

admitted for hearing by framing the following two substantial

questions of law: –

“(1) Whether the lower appellate Court was not justified
in holding that the original defendant no.2 Dashmat Bai
was having no right to execute sale deed according to
the custom being the widow of the Gond community and
also being remarried before the date of sale?

(2) Whether the lower appellate Court erred in law in
holding that defendant no.1 was an adopted son of
Dharam Singh?”

(For the sake of convenience, parties would be referred
hereinafter as per their status shown in the suit before the trial
Court.)

2. The suit property was originally held by Dharam Singh. He died on

9-12-1974 leaving behind his wife Dashmat Bai. Dashmat Bai sold

the suit land area 10.17 acres situated at Village Tirkadand, Tahsil

Charama, Distt. Kanker, vide Ex.P-1 in favour of the plaintiffs and

prior to alienation, the name of Dashmat Bai was recorded in the

revenue records which was challenged originally by defendant No.1

Mahar Singh claiming to be the adopted son of Dharam Singh

Dashmat Bai and also challenged the sale deed dated 20-1-1977

before the revenue court. It is the case of the plaintiffs that the sale

deed was set-aside by the Commissioner leading to filing of suit for

declaration of title and permanent injunction over the suit land area

10.17 acres in which defendant No.1 setup the plea that he is the

adopted son of Dharam Singh Dashmat Bai as per the custom

prevailing in the Gond community and the sale deed dated 20-1-

1977 is null and void and prayed that the suit be dismissed.

3. Upon appreciation of oral and documentary evidence on record, the

trial Court held that the adoption was not proved by defendant No.1,
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by Dharam Singh Dashmat Bai and the plaintiffs having

purchased the suit land from Dashmat Bai on payment of

consideration, and the revenue Court has no jurisdiction to declare

the sale deed as void and accordingly, decreed the suit and also

granted permanent injunction in favour of the plaintiffs. On appeal

being preferred by defendant No.1, the first appellate Court allowed

the appeal and set-aside the decree of the trial Court by dismissing

the suit holding that adoption by Dharam Singh – original holder of

the land Dashmat Bai is proved and further held that since

Dashmat Bai has entered into second marriage after death of her

husband Dharam Singh, therefore, she has lost the right to

property, even otherwise, Dashmat Bai was the aboriginal tribe and

in their custom, widow has no right to alienate the property after

death of husband, which has been questioned in this second

appeal preferred by the plaintiffs and in which two substantial

questions of law have been framed which have been set-out in the

opening paragraph of this judgment.

4. Mr. R.N. Jha, learned counsel appearing for the appellants /

plaintiffs, would submit that the finding recorded by the first

appellate Court holding that original defendant No.1 was the

adopted son of Dharam Singh Dashmat Bai, is absolutely

perverse and contrary to record. He would further submit that there

is no pleading that Dashmat Bai has ever remarried with someone

after death of her husband Dharam Singh and further, according to

Section 6 of the Central Provinces Laws Act, 1875, even if the

SectionHindu Succession Act, 1956 is not applicable, widow would be

entitled to inherit her husband’s property and she cannot be
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deprived of the property of her husband, as right to property is a

constitutional right under SectionArticle 300-A of the Constitution of India.

As such, the first appellate Court is absolutely unjustified in setting-

aside the well-reasoned and well-merited judgment decree of the

trial Court, that be set-aside and the appeal be allowed restoring

the judgment decree of the trial Court.

5. Mr. Raghavendra Pradhan, learned counsel for respondent No.1 /

legal representative of the original defendant No.1, would submit

that the first appellate Court is absolutely justified in holding that

defendant No.1 was the adopted son of Dharam Singh Dashmat

Bai and the first appellate Court is further justified in holding that

Dashmat Bai being the widow as a member of aboriginal tribe, did

not have salable right in the suit property to the plaintiffs and even

otherwise, she having entered into remarriage, has lost her property

rights, therefore, even she could not have alienated the suit

property in favour of the plaintiffs as such, no exception can be

taken into the judgment decree of the first appellate Court and the

appeal deserves to be dismissed.

6. I have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

7. For the sake of convenience, the second substantial question of law

with regard to adoption is taken first.

8. The trial Court has framed issue with regard to the fact as to

whether defendant No.1 Mahar Singh was the adopted son of

Dharam Singh Dashmat Bai to whom the said property belonged
5

and returned finding based upon oral and documentary evidence

that he is not the adopted son of Dharam Singh Dashmat Bai.

The trial Court clearly recorded that in all the documents filed by the

defendants – Exs.D-1 to D-7, name of the father of defendant No.1

is recorded as Ramji Gond i.e. the natural father and no other

document has been filed showing the father of defendant No.1 as

Dharam Singh – adoptive father. The first appellate Court has also

taken note of the statement of defendant No.1 Mahar Singh that in

school his father’s name is recorded as Ramji who is resident of

Telguda, Tahsil Charama, whereas Dharam Singh Dashmat Bai

were staying at Village Tirkadand, Tahsil Charama and he is in

possession of his natural father’s property. The trial Court has even

noted the statement of Hajari Ram (DW-3) to hold that defendant

No.1 is still cultivating the land owned by his natural father Ramji,

and no documentary evidence has been filed to say that his father’s

name is Dharam Singh – adoptive father and thereby disbelieved

the story of adoption projected by defendant No.1. Whereas, the

first appellate Court reversed this finding relying upon the statement

of Narayan Singh (DW-1) that ceremony of adoption took place in

the house of Ramji and defendant No.1 was adopted by Dharam

Singh Dashmat Bai and the fact of defendant No.1’s cultivating

and possessing the land held by Ramji could have no

consequence, as the adopted son can cultivate the land of his

natural father. Dashmat Bai has admitted the fact of Mahar Singh

having been adopted, in the Tahsil Court.

9. A careful scrutiny of the statement of defendant witnesses,

particularly of defendant No.1 Mahar Singh (DW-2), would show
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that defendant No.1 has clearly admitted that his father’s name is

Ramji – natural father and he has also admitted the fact that his

father is resident of Village Telguda and he stayed therein and in

the school, his father’s name is recorded as Ramji, whereas, his

alleged adoptive father Dharam Singh stayed at Village Tirkadand

which is at a distance of 13 Kms. from Village Telguda. Likewise, in

all the documents Exs.D-1 to D-7 filed by the defendants which are

copies of kistbandi khatauni of the years 1983-84, 1992-93, 2000-

2001, 1984-85 and 2000-2001, father’s name of defendant No.1 is

recorded as Ramji. As such, there is sufficient evidence available

on record to hold that father of defendant No.1 was his natural

father Ramji and there is no mention of any other document that he

was ever adopted by Dharam Singh. Even in the school records,

as admitted by defendant No.1, his father’s name is recorded as

Ramji – natural father. If defendant No.1 was really adopted by

Dharam Singh, his father’s name as Dharam Singh could have

been recorded not only in the revenue records, but also in the

school, but admittedly, it was not recorded obviously for the reason

that there is no adoption at all. Even otherwise, there is no

evidence on record to hold that his natural father namely, Ramji had

given defendant No.1 in adoption to Dharam Singh Dashmat Bai

in any ceremony held to adopt defendant No.1 which is very much

essential even under the Hindu Adoptions and SectionMaintenance Act,

1956, though it is not applicable, but, drawing the analogy, it ought

to have been pleaded and established that natural father of

defendant No.1 – Ramji given defendant No.1 on adoption in a

specific ceremony to Dharam Singh Dashmat Bai, as such, there
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is no evidence brought on record to that effect, even though

Dashmat Bai was impleaded as defendant No.2 before the trial

Court, but subsequently, her name was deleted from the plaint on

her death. Therefore, the finding recorded by the first appellate

Court that defendant No.1 was the adopted son of Dharam Singh

Dashmat Bai is a finding which is contrary to the record and being

perverse, it is liable to be set aside and the finding of the trial Court

holding that defendant No.1 has failed to prove that he is the

adopted son of Dharam Singh Dashmat Bai to whom the property

belonged, is liable to be restored. It is held accordingly.

10. This will lead me to the first substantial question of law.

11. It was pleaded by defendant No.1 that Dashmat Bai being the

widow of Dharam Singh, was the member of aboriginal tribe,

therefore, as per the custom, a tribal widow had no right to alienate

the property held by her husband. The trial Court relying upon the

statement of Narayan Singh (DW-1) who has stated that in Gond

caste, widow has right to alienate the property of her husband, held

that defendant No.1 has failed to prove the custom which is

required to be pleaded and established that widow had any such

right and answered issues No.2 10 in negative, but the first

appellate Court reversed the finding that in Gond caste, a tribal

widow had no right to alienate the property of her husband, as she

would not succeed. It is clear from the record that both the parties

have failed to establish the custom governing succession in their

caste.

12. The Central Provinces Laws Act, 1875 has been enacted to

regulate the inheritance, special property of females, betrothal,
8

marriage, dower, adoption and other system and customs.

Sections 5 and Section6 of the said Act reads as follows: –

“5. Rule of decision in cases of certain classes.- In
questions regarding inheritance, special property of
females, betrothal, marriage, dower, adoption,
guardianship, minority, bastardy, family relations, wills,
legacies, gifts, partitions or any religious usage or
institution, the rule of decision shall be the Muhammadan
Law in cases where the parties are Muhammadans, and
the

Hindu Law in cases where the parties are Hindus,
except in so far as such law has been by the legislative
enactment altered or abolished, or is opposed to the
provisions of this Act:

Provided that when among any class or body of
persons or among the members of any family any
custom prevails which is inconsistent with the law
applicable between such persons under this section, and
which if not inconsistent with such law, would have been
given effect to as legally binding, such custom shall,
notwithstanding anything herein contained, be given
effect to.

6. Rules in cases not expressly provided for.- In cases
not provided for by section 5, or by any law for the time
being in force, the Courts shall act according to justice,
equity and good conscience.”

13. Their Lordships of the Supreme Court have also in the matter of

M.V. Elisabeth and others v. Harwan Investment and Trading

Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama,

Goa 1 held that where statute is silent and judicial intervention is

required, Courts strive to redress grievances according to what is

perceived to be principles of justice, equity and good conscience. It

was observed as under: –

“86. The judicial power of this country, which is an
aspect of national sovereignty, is vested in the people
and is articulated in the provisions of the Constitution and
the laws and is exercised by courts empowered to
exercise it. It is absurd to confine that power to the
provisions of imperial statutes of a bygone age. Access

1 1993 Supp (2) SCC 433
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to court which is an important right vested in every citizen
implies the existence of the power of the Court to render
justice according to law. Where statute is silent and
judicial intervention is required, Courts strive to redress
grievances according to what is perceived to be
principles of justice, equity and good conscience.”

14. Now, the question is, what is meaning and significance of the

expression “justice, equity and good conscience”.

15. In the matter of SectionU. Bransly Nongaiang v. U. Drolishon

Syiemiong and others 2, meaning and significance of the

expression “justice, equity and good conscience” has been

considered by the Gauhati High Court and it was held as under: –

“The Formula “Justice, Equity and Good Conscience”–
The origin of the formula lie in the Romeo canonical
sources, way back in the 16th Century. Late the formula
was applied in Italy, Germany and France. It appealed
the English legal system which modified and
incorporated it in their own system. The preamble to the
Act of Succession enacted in 1536 used the expressions
“Equity, reason and good conscience”. The East India
Company carried the principle to India. In 1688, the
Judges appointed in Bombay under the Company’s Law
were “to behave themselves according to good
conscience”. The Royal Charters of 1683, 1687, 1726
and 1753 also used the expressions “Equity and Good
Conscience” and “Justice and Right”. The Regulation of
1781 enjoined that in all cases for which no directions
were given the respective Judge “do act according to
justice, equity and good conscience”. The principles
were to be applied where positive law or custom did not
assist the Court to dispense judicial Justice. Indeed, the
term “Justice” eludes a precise definition. It means the
constant and perpetual disposition to render to every
man his due. The Courts are to administer “commutative
justice” and “distributive justice” as well. The expression
“commutative justice” means that virtue whose object is
to render to every one what belongs to him, as nearly as
may be, or that which governs contracts. To render
commutative justice, the judge must make an equality
between the parties, so that no one may be gainer by
another’s loss. The expressions “distributive justice”

means that virtue whose object is to distribute rewards
and punishments to each one according to his merits,
observing a just proportion by comparing one person or
fact with another, so that neither equal persons have

2 (1986) 2 Gauhati Law Reports 487
10

unequal things nor unequal persons things equal.
“Equity’ is a system of law or rules more consonant than
the ordinary law which opinions current for the time being
as to a just regulation of the mutual rights and duties of
men living in a civilized society, vide Halsbury’s Laws of
England, 3rd Edn,, Vol. 14, p. 464. “Equity’ according to
Blackstone means “that portion of remedial justice which
was formerly exclusively administered by a court of
Equity as contra-distinguished from that portion which
was formerly exclusively administered by a court of
common law” – vide Blackstone’s Commentaries, 429-

437. The meaning of the expressions “Justice, equity
and good conscience” was summed up by Lord
Hobhouse in SectionWaghela Rajsanji v. Shekh Masludin (1887)
13 Ind. Appl. 89(96). “Justice, equity and good
conscience” could be interpreted to mean the rules of
English Law and found applicable to Indian society and
circumstances”.

16. In the matter of Chuiyya s/o Jhadi and another v. Mangari Bai

and another 3, the M.P. High Court while dealing with the issue of

inheritance of property of father by daughter belonging to “Oraon

tribe” held as under: –

“It is true that the provisions of SectionHindu Succession Act,
1956 do not apply to the members of the Scheduled
Tribe as per Sectionsection 2(2) of this Act. It is also true that
parties are Scheduled Tribes. In the absence of son the
daughter was entitled to inheritance and she used to get
“limited Estate” and on her death it used to pass on to
the reversioners of her father. That rule has been
abrogated. Section 14 of the Hindu Succession Act,
1956 confers full heritable capacity on a female heir.
There is no definite evidence that amongst the Oraons a
daughter is excluded from inheriting the property of her
father. There should be no disparity in the rights of man
and woman in matters of succession and inheritance.
This is recognized in all the systems. It is for the person
setting up the plea of exclusion of daughter from
inheritance to prove and establish that there is such a
caste custom. A custom is a rule which has by long
usage obtained the force of law. It must be ancient,
certain and reasonable. The daughter is entitled to the
share in the lands in dispute.”

17. Similarly, in the matter of SectionSukhmani and others v. Jagarnath 4, the

M.P. High Court applying the principles of equity, justice and good

3 2000(2) M.P.L.J. 441
4 2000 RN 301
11

conscience, finding no provision of law governing right to

succession among Gond-caste held as under: –

“10. The trial Court had rightly held that the daughters
are entitled to a share in the property of father in the
Gond community and they along with Sonamati and the
respondent succeeded to the property of Jatu. After the
death of Sonamati half share of Sonamati was also
transmitted to the appellants as there was no prohibition
in law to succeed the property of their step-mother. In
fact, sections 5 and 6 of the Central Provinces Law read
together would show that in absence of any law
governing the right to succession, the principles of equity,
justice and good conscience shall apply.

11. For all these reasons, this Court comes to the
conclusion that the appellants and the respondent are
entitled to 1/6th share each in the suit property.”

18. This Court also in the matter of Mst. SectionSarwango and others v.

Mst. Urchamahin and others 5, applying Section 6 of the Central

Provinces Laws Act, 1875, held that in absence of any law of

inheritance or custom prevailing in Gond-caste, Courts are required

to decide right according to justice, equity and good conscience

and allotted ½ share to daughters on the property left by their

father. It was observed as under: –

“10. In the present case, both the parties have failed to
prove any law of inheritance or custom prevailing in their
Gond caste i.e. member of Scheduled Caste whom
Hindu Law or other law governing inheritance is not
applicable. In absence of any law of inheritance or
custom prevailing in their caste governing the inheritance
the Courts are required to decide the rights according to
justice, equity and good conscience in term of Section 6
of the Act. Plaintiffs Sawango and Jaituniya are
daughters of Jhangal, nearest relative rather the
respondents, who were daughter-in-law of brother of
Jhangal and legitimate or illegitimate son of Balam
Singh, son of Dakhal.

11. In these circumstances, plaintiffs Sawango and
Jaituniya would be the persons’ best entitlement to inherit
the property left by their father. The Courts below ought
to have decreed the suit for partition to the extent of

5 AIR 2013 Chhattisgarh 98
12

share of Jhangal, but the Court below i.e. the lower
appellate Court has allowed the appeal and dismissed
the suit in absence of any law or custom for inheritance
for a member of Schedule Tribe. The Courts below are
required to decide their rights of inheritance in
accordance with the provisions of Section 6 of the Act
applicable to the State of Chhattisgarh and undivided
State of Madhya Pradesh.”

19. In view of the aforesaid legal position, it is held that defendant No.1

has failed to establish that being the members of aboriginal tribe,

they have given up their customary succession and have become

“Hindus out-and-out” or “sufficiently Hinduised” and in the matter of

succession they are governed by any particular School of Hindu

Law. Consequently, the legislative bar contained in Section 2(2) of

the Hindu Succession Act, 1956 would apply in full force and

hence, the provisions of the said Act would not apply to the parties

to suit i.e. Gond caste in absence of notification by the Central

Government applying the provisions of the Act of 1956 to them and

in absence of any law of inheritance or custom prevailing in Gond

caste, the provisions of Section 6 of the Central Provinces Laws

Act, 1875 would apply as held above and the courts are required to

decide right according to justice, equity and good conscience

applying the said principles and following the principles of law laid

down in this behalf in the above-stated judgments – Sukhmani

(supra) and Mst. Sarwango (supra). It is held that Dashmat Bai

would succeed the property of her husband and she has also the

salable right over the suit property.

20. The first appellate Court has also held that since Dashmat Bai has

remarried after death of her husband Dharam Singh on 9-12-1974,

therefore, she could not have alienated the suit property on 20-1-

1977, as she has become disqualified from alienating the suit
13

property. The finding recorded by the first appellate Court cannot

be accepted for two reasons. Firstly, in the written statement filed

by defendant No.1, there is no whisper about the fact of remarriage

by Dashmat Bai after death of Dharam Singh. In order to prove,

remarriage, performance of all the ceremonies will have to be done

in her remarriage. There can be no valid marriage in any form

without a substantial performance of the requisite religious

ceremonies, therefore, performance of all ceremonies is necessary

for completion of marriage. The effect of valid remarriage is the

widow losing her right in the property inherited from the previous

husband. Therefore, where the fact of remarriage is set up as

defence, it has be strictly proved looking to the devastating

consequence to be befallen upon widow in shape of depriving her

right to property. As such, there is no pleading and proof of

remarriage by Dashmat Bai after death of her husband Dharam

Singh. Even otherwise, Hajari Ram (DW-3) has clearly stated in

paragraph 7 of his statement that after death of Dharam Singh,

Dashmat Bai stayed in the house of Dharam Singh for 4-5 years.

Dharam Singh died on 9-12-1974 and the sale deed was executed

on 20-1-1977, as such, even on facts, the finding recorded is

perverse. One more reason is that, in the instant case, the first

appellate Court has held that since Dashmat Bai remarried (though

the said fact is not established), therefore, she has lost her right

over the property.

21. At this stage, Section 2 of the Hindu Widow’s SectionRemarriage Act, 1856

requires to be noticed which provides as under: –

“2. Rights of widow in deceased husband’s property
14

to cease on her remarriage.–All rights and interests
which any widow may have in her deceased husband’s
property by way of maintenance, or by inheritance to her
husband or to his lineal successors, or by virtue of any
will or testamentary disposition conferring upon her,
without express permission to remarry, only a limited
interest in such property, with no power of alienating the
same, shall upon her remarriage cease and determine as
if she had then died; and the next heirs of her deceased
husband, or other persons entitled to the property on her
death, shall thereupon succeed to the same.”

[The Hindu Widow’s SectionRemarriage Act, 1856 was repealed by

the Hindu Widows’ Re-marriage (Repeal) Act, 1983 with effect from

31-8-1983.]

22. A focused glance of the aforesaid provision would show that the

said provision has taken away the right of a widow in the event of

remarriage and the provision is very specific to the effect that widow

on remarriage would be deemed to be otherwise dead and in the

event of remarriage, one loses the rights of even limited interest in

such property. This position continued till the SectionHindu Succession

Act, 1956 came into operation with effect from 18-5-1956. Section

4 of the Hindu Succession Act, 1956 has an overriding effect. The

provisions of the SectionHindu Succession Act, 1956, thus, shall prevail

over the text of any Hindu law or the provisions of the 1856 Act and

Section 2 of the 1856 Act would not prevail over the provisions of

the 1956 Act having regard to Sections 4 and Section24 thereof. (See

Cherotte Sugathan (Dead) Through LRs. and others v.

Cherotte Bharathi and others 6.)

23. After coming into force of the SectionHindu Succession Act, 1956, the

provisions of the Hindu Widow’s SectionRemarriage Act, 1856, would not

prevail and widow on remarriage, would not lose her right which

6 (2008) 2 SCC 610
15

she had otherwise. In view of that, since the fact of remarriage has

not been expressly pleaded nor it has not been proved and widow

had right to alienate the property, the finding recorded by the first

appellate is contrary to law and is perverse. As such, judgment

decree of the first appellate Court are set-aside and that of the trial

Court are restored.

24. The substantial questions of law are answered accordingly and the

second appeal is allowed to the extent indicated herein-above. No

order as to cost(s).

25. Decree be drawn-up accordingly.

Sd/-

(Sanjay K. Agrawal)
Judge
Soma

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