Family Law

Sarwango v. Urchamahin

AIR 2013 Chh 98

Facts

Jhangal and Dakhal were brothers belonging to the Gond Scheduled Tribe.
They jointly owned approximately 9.88 acres of land in village Kurwa, Surajpur.
Sarwango and Jaituniya were the daughters of Jhangal.
After Jhangal’s death, the daughters claimed his half share in the joint property and filed a suit for partition.
The defendants represented Dakhal’s branch of the family.
They argued that:
the parties were members of a Scheduled Tribe;
the Hindu Succession Act, 1956 did not directly apply because of Section 2(2);
according to Gond custom, daughters could not inherit their father’s property.
The daughters claimed that the family followed Hindu succession principles.
Neither side produced satisfactory evidence proving any definite Gond custom governing inheritance.
The Trial Court granted the daughters half of the property.
The First Appellate Court reversed the decree on the ground that Hindu succession law could not be applied to Scheduled Tribes.
The daughters approached the Chhattisgarh High Court.

How should succession be determined when the parties are Scheduled Tribe members but neither side proves a governing tribal custom?
Could the daughters be denied inheritance merely because the Hindu Succession Act did not directly apply?

Section 2(2) of the Hindu Succession Act excludes Scheduled Tribe members from its direct operation unless the Central Government issues a notification.
However, exclusion from the Act does not itself establish a custom excluding women.
Under Sections 5 and 6 of the Central Provinces Laws Act, 1875:
a proved personal law or binding custom must ordinarily be applied;
where no applicable law or custom is proved, the court must decide according to justice, equity and good conscience.
A party relying on a special customary rule bears the burden of proving it.
Courts cannot presume that every tribal community follows male-only succession.

The defendants asserted that Gond daughters were excluded from inheritance but failed to prove:
an ancient and continuous custom;
previous instances where daughters were excluded;
authoritative community evidence supporting their claim.
The daughters also did not conclusively prove a formal adoption of Hindu law.
Therefore, neither alleged system could be mechanically imposed.
The First Appellate Court made a serious error by treating the non-application of the Hindu Succession Act as automatically defeating the daughters’ claim.
Section 2(2) merely excludes the statute; it does not create a rule that only men may inherit.
In the absence of a proved custom, the court had to apply justice, equity and good conscience.
Sarwango and Jaituniya were:
Jhangal’s biological daughters;
his nearest surviving relatives;
members of his direct line.
The defendants claimed through the branch of Jhangal’s brother and were therefore more remote relatives regarding Jhangal’s half share.
Excluding the daughters and transferring their father’s entire interest to a collateral branch would be inequitable where no custom required such a result.
The equality-oriented principles underlying modern succession law could guide the court without formally applying the Hindu Succession Act.
Consequently, the daughters were the persons best entitled to inherit Jhangal’s share.

The second appeal was allowed.
The First Appellate Court’s judgment was set aside.
The Trial Court’s partition decree was restored.
Sarwango and Jaituniya were entitled to their father’s half share.
Use this case for: where no tribal succession custom is proved, inheritance must be decided according to justice, equity and good conscience, and daughters cannot be excluded merely because the Hindu Succession Act is inapplicable.