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PETITIONER: MADHU KISHWAR AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT11/10/1991

BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) KULDIP SINGH (J)

CITATION:  1991 SCR  Supl. (1) 477  1992 SCC  (1) 102  JT 1991 (4)   119        1991 SCALE  (2)794

ACT: Chhota Nagpur Tenancy Act, 1908:     S.s.7,8--Scheduled   Tribes--Succession   to    property --Confined  to male in the male line---Inclusion  of  female heirs-Necessity for.

HEADNOTE:     Chhota  Nagpur Tenancy Act, 1908 confined succession  to property to descendants in the male line of Scheduled Tribes covered by the Act.     The  petitioners  who were the ladies belonging  to  the ’Ho’ and ’Oraon’ Tribes of the Chhota Nagpur area  contended that  the provisions of Sections 7 & 8 of the Act were  dis- criminatory  against women and, therefore, ultra  vires  the equality clause in the Constitution.     The  Court at an earlier stage while hearing one of  the writ  petitions, gave time to the respondent-State of  Bihar to consider the feasibility of carrying out an amendment  in the offending sections so as to clearly provide that succes- sion was not confined in the male line. In pursuance  there- of,  a Committee was set up by the State which came  to  the conclusion  that  a  custom prevailed  among  the  Scheduled Tribes  that a female heir be excluded from succession,  and that if there was any change, and the property be allowed to go  into the hands of female heirs there would be  agitation and unrest. Adjourning the hearing of the petitions, this Court,    HELD:  Scheduled  Tribe people are as  much  citizens  as others and they are entitled to the benefit of guarantees of the  Constitution.  It  may be   that the  law  can  provide reasonable regulation in the matter of succession to proper- ty  with  a view to maintaining cohesiveness  in  regard  to Scheduled  Tribes and their properties. But  exclusion  from inheritance  would not be appropriate. Since this aspect  of the  matter  was not examined by the State,  it  should  re- examine the feasibility of permitting inheritance and simul- taneously  regulating  such inheritance for the  purpose  of ensuring 478 that  the property does not go out of the family by  way  of transfer or otherwise. [480 H; 481 AB]     Jitmohan Singh Munda v. Ramratan Singh & Anr., 1958 BLJR

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373, referred to.     In the circumstances, hearing of the matter be adjourned for  three months and the State of Bihar  would  immediately take into consideration the order and undertake the exercise indicated  and report to the Court by way of  an  affidavit, and along with that a copy of the report may be furnished by the Committee to be set up by the State of Bihar. [481 B-C]

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition No. 5723 of 1982  & 219 of 1986. (Under Article 32 of the Constitution of India). Mrs Pinky Anand and D.N. Goburdhan for the Petitioners.     B.B.  Singh, Pramod Swarup, J.P. Verghese, LJ.  Vadakare and Ms. Kamini Jaiswal (N.P.) for the Respondents. The following Order of the Court was delivered     These  two petitions under Art. 32 of  the  Constitution challenge  the provisions of the Chhota Nagpur  Tenancy  Act which  confines succession to property to the male  line  by contending  that  the provision  is  discriminatory  against women and, therefore, ultra vires the equality clause in the Constitution. Petitioner no. 1 in the first writ petition is the editor of a magazine while petitioners nos. 2 and 3  are two  ladies of the ’Ho’ tribe, admittedly one of the  sched- uled  tribes  residing in Singhbhum district of  Bihar.  The petitioners in the other writ petition belong to the ’Oraon’ tribe of the Chhota Nagpur area. Challenge is essentially to ss.  7 and 8 of the Chhota Nagpur Tenancy Act of 1908.  Sec- tions 7 and 8 of the Act provide:               "7.(1) Meaning of ’raiyat having  khunt-khatti               rights’.  -"Raiyat having khunt katti  rights"               means a raiyat in occupation of, or having any               subsisting  title  to,  land  reclaimed   from               jungle by the original founders of the village               or  their descendants in the male  line,  when               such  raiyat is a member of the  family  which               rounded  the  village or a descendant  in  the               male line of any member of such family:               Provided  that  no raiyat shall be  deemed  to               have khunt katti               479               rights  in  any  land unless he  and  all  his               predecessors-in-title  have held such land  or               obtained a title thereto by virtue of  inheri-               tance  from the original founders of the  vil-               lage.               (2)  Nothing in this Act  shall  prejudicially               affect  the rights of any person who has  law-               fully  acquired a title to a  khunt  kattidari               tenancy before the commencement of this Act.               8.   Meaning  of  Mundan  Khunt-khattidar.   -               "Mundari  khuntkattidar" means a  Mundari  who               has  acquired a right to hold jungle land  for               the  purpose  of  bringing  suitable  portions               thereof  under  cultivation by himself  or  by               male members of his family, and includes-               (a)  the  heirs male in the line of  any  such               Mundari,  when they are in possession of  such               land  or have any subsisting  title   thereto;               and               (b) as regards any portions of such land which               have  remained continuously in the  possession               of any such Mundari and his descendants in the

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             male line, such descendants."     Reliance has been placed on a Division Bench decision of the Patna High court in the case of Jitmohan singh Munda  v. Ramaratan  Singh  & Anr., 1958 BLJR 373 in  support  of  the proposition that the Patna High Court had more than 30 years back taken the view that the provision was not operative and a  widow  was also entitled to inherit.  When  analysed  the judgment  of the Patna High Court does not seem  to  provide prop  for  the  argument raised in the  writ  petitions.  In paragraph 4 of the judgment the High Court indicated: "The  contention  based on section 8  also  terminologically cannot  be accepted in the first place, in  defining  khunt- kattidari  interest.  As  quoted above,  the  word  used  is "includes"  whereafter occur clauses (a) and (b)  containing reference  to  the male in the male line of a  Mundari.  The word  "includes" cannot be taken to be exhaustive.  It  only states  that  the heirs in the male line alone  are  in  the category  of a Mundari khunt-kattidari in their  possession, but  in  implication it may well be that the  heirs  of  the deceased  Mundari  who are females will not be  entitled  to succeed  to  it. That does not mean that the section  is  so definite  as  to exclude the inclusion of the widow  of  the deceased Mundari as a person who can hold the land during 480 her life time. Moreover, clause (a) refers to the heirs male in  the male fine. The word "line" is also  significant  be- cause it evidently refers to a person who has descended from the  deceased  Mundari whose interest may  be  in  question. Even, therefore, if these words "the heirs male in the  male line" were to be given exclusive meaning, then also it would mean  only the persons who are descended from him or  repre- sent  another  male line altogether. There is  no  reference whatsoever  to the exclusion of the widow of the  particular Mundari.  In  my  opinion, the position in  respect  of  the interest of the widow of the deceased Mundari is the same in respect  of  this property as it would be  her  position  in regard  to the other properties of her late  husband.  Since the  court below has accepted that the family  has  followed the  Hindu  rites and Hindu religion, the  widow  of  Kartik Singh would be entitled to be in possession. Section 8, as I have  discussed, is not inconsistent with this  position  of the  widow  and, as such, the court below took  the  correct view in holding that the plaintiff could not recover posses- sion  of the property during the life time of defendant  no. 1, but he is entitled to a declaration that he will  succeed after the death of the widow."     The  interpretation given of S. 8 in the Division  Bench decision,  therefore, does not provide full support  to  the point  raised before us by the writ petitioners in  the  two cases. It was a case confined to its own facts and the Court proceeded to dispose of the case with reference to the widow by bringing in the concept of Hindu law on the finding  that the  family had adopted Hindu law and was not bound  by  its own caste custom.     At  an earlier stage while one of these  writ  petitions was heard we had given time to the State of Bihar to consid- er  the  feasibility  of carrying out an  amendment  in  the offending  sections and to clearly provide  that  succession was  not confined to the male in the male line. A  committee appears to have been set up by the State of Bihar to examine this  question  and it has come to the  conclusion  that  by custom prevalent among the scheduled tribes a female heir is excluded  from succession and in case the law was  otherwise interpreted  or changed and property was allowed to go  into the  hands of female heirs, there would be  great  agitation

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and unrest in the area among the scheduled tribe people  who have custom-based living.     Scheduled  tribe people are as much citizens  as  others and  they are entitled to the benefit of guarantees  of  the Constitution. It may be that the 481 law  can  provide  reasonable regulation in  the  matter  of succession to property with a view to maintaining  cohesive- ness in regard to Scheduled Tribes and their properties. But exclusion  from inheritance would not be appropriate.  Since this aspect of the matter has not been examined by the State of  Bihar and the feasibility of permitting inheritance  and simultaneously  regulating such inheritance for the  purpose of ensuring that the property does not go out of the  family by  way of transfer or otherwise we arc of the view that  in the  peculiar  facts of the case the State of  Bihar  should re-examine  the matter. In these circumstances,  instead  of disposing  of  the two writ petitions by a  final  order  we adjourn the hearing thereof for three months and direct  the State  of Bihar to immediately take into  consideration  our order and undertake the exercise indicated and report to the Court  by way of an affidavit and along with that a copy  of the report may be furnished by the Committee to be set up by the State of Bihar.     This  matter shall not be considered as  part-heard  and shall  be  next listed before a Bench where  Justice  Kuldip Singh is one of the members. R.P.                                               Petitions adjourned. 482