Scheduled Tribe Women Not Entitled To Any ‘Right Of Survivorship’ Under Hindu Succession Act: SC
While mincing just no words to state the ground reality, the Apex Court in a most laudable, learned, landmark and latest judgment titled Kamla Neti (Dead) through LRs vs The Special Land Acquisition Officer vs. The Special Land Acquisition Officer & Ors in Civil Appeal No. 6901 of 2022 and cited in 2022 LiveLaw (SC) 1014 that was pronounced as recently as on December 9, 2022 has held in no uncertain terms that female member of the Scheduled Tribe is not entitled to any right of survivorship under the provisions of the Hindu Succession Act. The Apex Court minced just no words to hold that it is high time for the Central Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act by which it is not made applicable to the members of the Scheduled Trines. It was also made clear that the female tribal is entitled to parity with male tribal in interstate succession!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice MR Shah for a Bench of Apex Court comprising of himself and Hon’ble Mr Justice Krishna Murari sets the ball rolling by first and foremost putting forth in para 1 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Orissa at Cuttack in Land Acquisition Appeal No.79 of 2015 by which the High Court has dismissed the said appeal preferred by the appellant herein and has confirmed the order passed by the learned Reference Court, the original applicant has preferred the present appeal.”
To put things in perspective, the Bench then envisages in para 2 that, “The dispute is with respect to the apportionment of the amount of compensation with respect to the land acquired. The land originally stood recorded in the name of late Satyananda Negi a common ancestor of the appellant and the other coparceners. The said Satyananada died leaving behind his two sons namely Chakradhar and Gajadhar. Chakradhar died leaving behind his four sons namely Chintamani, Parakhita, Basudev and Kulamani and one daughter Kamla (the appellant herein). Similarly, Gajadhar died leaving behind his two daughters namely Kumari and Kumudini. With respect to the land acquired, Khasra No.81, Mouza Kopsingha which originally stood recorded in the name of late Satyananda Negi, the amount of compensation was settled at Rs.5,97,35,754/- in favour of the respondent nos. 2 to 5 herein i.e. Kadamba Negi, Janhabi Negi, Basudev Negi, Lalita Negi and daughters of Gajadhar i.e. Kumari Dhrua and Kumudini Majhi.”
Furthermore, the Bench then states in para 2.1 that, “At the instance of the appellant claiming to be the daughter of Chakradhar and claiming 1/5th share in the amount of compensation a reference was made to the Reference Court under Section 30 of the Land Acquisition Act. The Reference Court – the learned Senior Civil Judge, Sundargarh rejected the claim of the appellant/share of the appellant in the compensation, mainly on the ground that as the parties belong to Scheduled Tribe Community, the provisions of the Hindu Succession Act shall not be applicable and therefore the appellant being a daughter shall not be entitled to the share in the amount of compensation. The order passed by the learned Reference Court denying the share in the amount of compensation has been confirmed by the High Court by the impugned judgment and order. Hence, the present appeal against the impugned judgment and order passed by the High Court.”
Quite significantly, after hearing the learned counsel for the respective parties at length as mentioned in para 5, the Bench then propounds in para 6 that, “A short question which is posed for consideration of this Court is whether the appellant/petitioner being the daughter is entitled to the share in the compensation with respect to the land acquired, on survivorship basis under the provisions of Hindu Succession Act? At the outset, it is required to be noted that the appellant belongs to tribal community and is a member of Scheduled Tribe. As per Section 2(2) of the Hindu Succession Act, the Hindu Succession Act will not be applicable to the members of the Scheduled Tribe. Therefore, as such as rightly observed by the High Court the appellant cannot claim any right of survival under the provisions of the Hindu Succession Act. Therefore, so long as Section 2(2) of the Hindu Succession Act stands and there is no amendment, the parties shall be governed by the provisions of Section 2(2) of the Hindu Succession Act. Therefore, though on equity we may be with the appellant being daughter and more than approximately 70 years have passed after the enactment of the Hindu Succession Act and much water has flown thereafter and though we are prima facie of the opinion that not to grant the benefit of survivorship to the daughter in the property of the father can be said to be bad in law and cannot be justified in the present scenario, unless Section 2(2) of the Hindu Succession Act is amended, the parties being member of the Scheduled Tribe are governed by Section 2(2) of the Hindu Succession Act. It is observed and held by this Court in the case of Mohan Koikal (supra) that when there is a conflict between the law and equity, the law would prevail. Equity can only supplement the law. There is a gap in it but it cannot supplant the law.
6.1 If the claim of the appellant on the basis of the survivorship under the Hindu Succession Act is accepted in that case it would tantamount to amend the law. It is for the legislature to amend the law and not the Court.
6.2 Now so far as the reliance placed upon the decision of this Court in the case of Madhu Kishwar (supra) by the learned counsel for the appellant is concerned, at the outset it is required to be noted that by the majority decision this Court refused to strike down the provisions of Chota Nagpur Tenancy Act, 1908 which provided the succession to property in the male line of heirs and denying the right to Succession to the daughter, on the touchstone of Article 14. However, this Court read into the said provisions and observed and held that the intervening right of female dependents/descendants under Sections 7 and 8 of the Act shall be carved out, by suspending the exclusive right of the male succession till the female dependent/descendent chooses other means of livelihood manifested by abandonment or release of the holding kept for the purpose. This Court by observing so disposed of the writ petition. However, by disposing the writ petition this Court issued direction to the State of Bihar to comprehensively examine the question on the premise of our constitutional ethos and the need voiced to amend the law.
6.3 This Court also directed to examine the question of recommending to the Central Government whether the Central Government consider it just and necessary to withdraw the exemptions given under the Hindu Succession Act and the Indian Succession Act in so far as the applicability of these provisions to the Scheduled Tribes in the State of Bihar is concerned.
6.4 However, Mr. Justice K. Ramaswamy in his concurrent judgment has further observed and held that the provisions of the Hindu Succession Act and the Indian Succession Act would apply to the Scheduled Tribes, the general principles contained therein being consistent with justice, equity, fairness, justness and good conscience would apply to them. Thereafter it is held that the Scheduled Tribe women would succeed to the estate of their parent, brother, husband, as heirs by intestate succession and inherit the property with equal share with the male heir with absolute rights as per the general principles of the Hindu Succession Act, 1956, as amended and interpreted by this Court. However, it is required to be noted that the same is minority view.”
Finally and far most significantly, the Bench then concludes by holding in para 7 that, “Under the circumstances in view of Section 2(2) of Hindu Succession Act and the appellant being the member of the Scheduled Tribe and as the female member of the Scheduled Tribe is specifically excluded, the appellant is not entitled to any right of survivorship under the provisions of Hindu Succession Act. No error has been committed by the High Court. The appeal therefore deserves to be dismissed and is accordingly dismissed.
7.1 Before parting, we may observe that there may not be any justification to deny the right of survivorship so far as the female member of the Tribal is concerned. When the daughter belonging to the non-tribal is entitled to the equal share in the property of the father, there is no reason to deny such right to the daughter of the Tribal community. Female tribal is entitled to parity with male tribal in intestate succession. To deny the equal right to the daughter belonging to the tribal even after a period of 70 years of the Constitution of India under which right to equality is guaranteed, it is high time for the Central Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act by which the Hindu Succession Act is not made applicable to the members of the Scheduled Tribe.
7.2 Therefore, though we dismiss the present appeal, it is directed to examine the question by the Central Government to consider it just and necessary to withdraw the exemptions provided under the Hindu Succession Act in so far as the applicability of the provisions of the Hindu Succession Act to the Scheduled Tribes and whether to bring a suitable amendment or not. We hope and trust that the Central Government will look into the matter and take an appropriate decision taking into consideration the right to equality guaranteed under Articles 14 and 21 of the Constitution of India.”
All told, undoubtedly we see for ourselves that the Apex Court has made it indubitably clear that under the present law a Scheduled Tribe women is not entitled to any ‘right of survivorship’ under the Hindu Succession Act. It also merits no reiteration that the Apex Court while dismissing the present appeal has very rightly urged the Central Government to look into the matter as it is high time and if required, to amend the provisions of the Hindu Succession Act by which the Hindu Succession Act is not made applicable to the members of the Scheduled Tribe. The needful must be done forthrightly by the Central Government as urged by the Apex Court in this leading case! There can be just no denying or disputing it!
