'The Tribal Society Too Isn't Untouched By The Winds of Socio-Economic Change': Jharkhand HC Upholds Inheritance By Female Heir

The Jharkhand High Court recently upheld the right of a female on inheritance, despite being barred by customary law white, noting that each case has to be judged individually regarding the applicable custom. Justice Gautam Kumar Choudhary noted that,

"Society do not exist frozen in time and the tribal society too is not untouched by the winds of socio-economic change. Other vehicle of change being education, urbanization, industrial revolution, so on and so forth. Tribal society is not unaffected by these changes and are leaving their mark in every walk of national life. Customs are not fossilized structures, nor are they etched on stone but are living organism rooted in the life of the society. Customs do change with change in occupation, belief and life of the society."

An appeal was preferred against judgment and decree by Additional Munsif-II to declare the impugned sale deed void and inoperative, executed in violation of the Chotanagpur Tenancy Act, 1908. The plaintiff is a woman from the Oraon tribe. The title and possession to her admitted ancestral property is under challenge because, being a woman, she has no right of inheritance under customary law applicable to tribals.

The plaintiff's case that the suit land was recorded in the name of Manu Oraon, who died in 1945, leaving behind Saran Linda as the only male heir. Saran Linda also died in 1974, leaving behind three daughters, including the plaintiff, but no male heir. The name of Saran Linda's wife was mutated, and since then, the rent receipts have been regularly issued in her name. Linda's wife also died in 1998, leaving behind the plaintiff in cultivating possession of the land, which is her only source of livelihood. In 2002, the defendants started some construction work on the suit land, initiating proceedings under Section 144 CrPC.

It was then that the plaintiff learned about the execution of a sale deed by the defendants. The main plea of the defendants is that both the parties are members of Scheduled Tribes and are governed by their customary law of succession in which the females are excluded from inheritance. The plaintiff has no right to title interest and possession over the suit land.

The issue before the Court is whether, under the Oraon Customary Law, daughters are heirs and entitled to succession?

The Court placed reliance on the case of Laxmibai & Anr v. Bhagwantbuwa & Ors, which lays down the test of a binding custom. In the said case, it was held that,

"A custom is an established practice at variance with the general law....... Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it. Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He who relies upon custom varying general law, must plead and prove it. Custom must be established by clear and unambiguous evidence."

Based on the findings in the Laxmibai case, the High Court noted that an irregular and inconsistent practice of a custom could not accord it a binding force of general customary law. There is a difference between general and special customs. It then remarked that a brief reference to some of the cases should demonstrate that such a custom has not been uniformly accepted and recognized by the Courts. There are cases where they have been recognized as customary law of inheritance, but then there is a very large body of judgments where the courts have refused to give relief of title based on such customary law.

It also placed reliance on the case of Joseph Munda v. Most Fudi (2009), where the High Court refused to deny the right to inheritance to females on the ground that it was barred under customary law. This case clarified that the revenue Court and the High Court recognized the right of female inheritance of a member of a scheduled tribe. The Court refused to apply the said custom debarring female from inheritance.

On examining a catena of precedents with divergent views, the Court noted that the cumulative effect of these judicial precedent demonstrate and reflect beyond doubt that general customary law of inheritance among Oraon and Santhal tribes has not crystallized into a uniform general customary law having binding force debarring natural female heirs from the right of inheritance. It remarked,

"Judicial decision also reflects an unease to accept and recognize such inequitable custom. The Courts have refrained to uniformly or consistently recognize the customary law of inheritance excluding female from inheritance so as to hold that they have acquired binding force of general customary law. In every case the claim of title is to be decided on the pleading and proof of customary law regarding the prevailing custom."

The Court noted that, ideally, it is high time that customary law of succession should be codified and be given a statutory shape. But in the meantime, each case has to be judged individually regarding the applicable custom.

In the present case, as the defendants have failed to prove general binding custom among the Oraon tribe that females were excluded from inheritance, the issue was answered in favor of the plaintiff.

Case Title: Prabha Minz v. Martha Ekka and Ors

Citation: 2022 LiveLaw (Jha) 38

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