IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 487 of 2003
Dhabai Marandi ........Appellant
Versus
Bibhuti Marandi @ Lodo Marandi & Others ...Respondents
Coram :THE HON'BLE MR. JUSTICE R.K. MERATHIA
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For the Appellants : Mr. Rajiv Ranjan, Advocate
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C.A.V. On 17.2.2009 Delivered on 25/2/2009
8/25.2.2009
Learned counsel appearing for the appellant submitted that
there is no custom of adoption in Santhals ( a Scheduled Tribe) and
Hindu Law of Succession is not applicable to them. He relied on the
judgment reported in AIR 1996 SC 1864-Madhu Kishwar etc. 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.
2. After taking into consideration Madhu Kishwar ( supra) and
the judgment reported in (2000) 8 SCC 587-Labishwar Manjhi etc.
Learned Single Judge of this Court, in the case of Ram Nath Munda etc.
2004 (3) JCR 561 ( Jhr) inter alia held as follows:-
“12. The learned counsel for the appellant
has argued relying on a decision reported in AIR
1996 SC 1864 (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 tribal and the plaintiff-respondents
are tribal. 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
christen tribes. No where it was pleaded that any
2of 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 Christan 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.
13. 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, Muslims, 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”.
3. 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.
( R.K. Merathia, J)
Rakesh/