Dhabai Marandi vs Bibhuti Marandi @ Lodo Marandi and Others

R.K. Merathia, J.—Learned Counsel appearing for the Appellant submitted that there is no custom of adoption in Santhals (a Schedule Tribe) and Hindu Law of Succession is not applicable to them. He relied on the judgment reported in Madhu Kishwar and others Vs. State of Bihar and others, The concurrent findings of fact against the Appellant, inter alia, is that adoption is prevalent in Santhals of the instant case and they are Hinduised Santhals.

After taking into consideration Madhu Kishwar, (supra) and the judgment reported in Labishwar Manjhi Vs. Pran Manjhi and Others, Judge of this Court, in the case of Ram Nath Munda and Another Vs. Khaintu Munda and Another, inter alia as follows:

The learned Counsel for the Appellant has argued relying on a decision reported in Madhu Kishwar and others Vs. State of Bihar and others, (a judgment given by three Judges Bench) where it has been held by a majority view that neither Hindu Succession Act, nor Succession Act nor even Shariat Law is applicable to people governed by triable and the Plaintiff-Respondents are triable. To the contrary the learned Counsel for the Respondent relying on 2001 (2) Supreme 568 and also on the minority view of the above decisions (supra) has argued that if the parties have sufficiently been Hinduised then in that circumstances they were to be governed by Hindu Succession Act. The argument was raised on behalf of the Appellant that the decision given in 2001 Supreme is a two Judges Bench decision whereas that of the 1996 is three Judges Bench decision and its majority view is binding. In the background of the aforesaid contention I have carefully gone through both the cases. In 1996 case a petition has been filed by certain voluntary organizations that the tribal women in the State of Bihar were being discriminated against male as they had no right to succeed the property though the tribals male has got such right and this was in violation of Article 14 of the Constitution of India and certain, provision of C.N.T. Act were sought to be quashed. In that case some women were tribals and some were Christian tribes. No where it was pleaded that any of the women had been sufficiently Hinduised and therefore that decision is to be understood only in the background of the fact that the ladies whose case were being espoused were tribals pure and simple, or Christen Tribal. Therefore, as the provision of the Hindu Succession Act bars application of the Act to tribal thus aforesaid decision was given. Thus in that case this aspect that what should happen to those tribal who have been sufficiently Hinduised was not at all considered whereas in 2001 cases this was a matter in issue.

Section 2 of the Act defines Hindu which is as follows:

2(1)(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person, who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by this Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Clause (c) finds a negative definition of Hindu by excluding Muslims, Christian, Parsi or Jews, meaning thereby that if they are not Christian, Muslim, Jews they are Hindu provided they could not have been governed by Hindu Law or its custom. Section 2(1) of the aforesaid clause do not exclude the scheduled tribes from the definition of Hindu. Section 2(2) only postpones the application of Hindu Succession Act till the notification as required under this provision is issued. This by implication means that S.T. are also Hindues only, the application of Hindu Succession Act is simply contingent to certain notification. A scheduled tribe, pure and simple who is adhering to his custom is to be distinguished from that who has been Hinduised prior to commencement of the Hindu Succession Act and in my view such Hinduised tribal do fall within Section 2(1)(c) of the Act and may be treated as Hindu because there is no proving on the record that such tribals could not have been governed by the Hindu Law. Nothing has been shown that the custom bars the Munda from adopting any form of Hindu Religion.

In my opinion, no substantial question of law is involved in this appeal, which is required to be decided. Accordingly, this Second Appeal is dismissed. However, no costs.