2025:CGHC:33625 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR SA No. 367 of 2012 1 - Smt. Kaushilya Bai, S/o Karan Lal Dhurve Aged About 50 Years. 2 - Sushila Bai, D/o Karan Lal Dhurve Aged About 45 Years. 3 - Shakun Bai, D/o Karan Lal Dhurve Aged About 40 Years. All are Rajmahal Chowk, Kawardha, Distt. Kabirdham (C.G.). ... Appellant(s) versus 1 - Chhunni Lal @ Hori Lal S/o Karan Lal Aged About 40 Years. 2 - Bhagwat Singh S/o Karan Lal Dhurve Aged About 38 Years. 3 - Panch Bai W/o Amrit Lal Aged About 40 Years. 4 - Krit Lal S/o Amrit Lal Aged About 24 Years. 5 - (Deleted) Sanwant (Died) Through Lrs. 5.1 - (A) Smt. Vijaylaxmi Wd/o Late Sanvant C/o Mala Bai Bazarpara, Takhatpur, Pin 495330 District Bilaspur Chhattisgarh 6 - (Deleted) Baisakhin Bai (Died) 7 - Nutan Singh S/o Ghunari Dhurve Aged About 25 Years Respondents No. 1 to 4, 7 are R/o Rajmahal Chowk, Kawardha, Distt. Kabirdham (C.G.) 8 - State of Chhttisgarh through Collector, Kabirdham (C.G.) ---- Respondents For Appellant : Mr. Ajit Singh, Advocate. For Resp. No. 1 to 4 : Mr. Pushpendra Kumar Patel, Advocate. For State : Mr. Kalpesh Ruparel, Panel Lawyer. Hon'ble Shri Justice Narendra Kumar Vyas JUDGMENT ON BOARD 17/07/2025 1. This second appeal has been filed by the appellants/plaintiffs under Section 100 of the C.P.C. against judgment and decree dated 09.07.2012 passed by the Additional District Judge Kawardha (Kabirdham) in Civil Appeal No. 4-A/2012 (Kaushilya Bai & others Vs. Chhunni Lal & others) arising out of the judgment and decree dated ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.09.22 17:36:52 +0530 15.03.2010 passed by Civil Judge Class-II, Kawardha, District- Kabirdham (C.G.) in Civil Suit No. 35-A/2009 for declaration of title, partition & possession of the suit property situated at Village- Saigona, Patwari Halka No. 19, Revenue Circle Kawardha bearing Khasra No. 125, area admeasuring 3.38 acres. 2. For the sake of convenience, the parties shall be referred to in terms of their status shown in Civil Suit No. 35A/2009 before the trial Court. 3. The instant Second Appeal has been admitted for hearing by this Court vide its order dated 13.07.2021 on the following substantial questions of law:- “1. Whether both the Courts below were justified in dismissing the suit filed by the plaintiffs holding that the plaintiffs being daughters of original holder-Mr. Karan Lal Dhurve are not entitled to succeed the property of their father by recording a finding which is perverse to the record? 2. Whether both the Courts below were justified in holding that since the provisions of Hindu Succession Act, 1956 is not applicable to the parties herein, therefore, plaintiffs/ daughters are not entitled to succeed the property of their father by recording a finding which is perverse to the record?” 4. The brief facts, as reflected from the plaint averments, are that (A) The plaintiff filed civil suit for declaration of title, partition & possession of the suit property situated at Village- Saigona, Patwari Halka No. 19, Revenue Circle Kawardha bearing Khasra No. 125, area admeasuring 3.38 acres mainly contending that the suit property was registered and owned by Karan Lal Dhurve who expired in the year 1992. After his death, the plaintiff & defendants No. 1 to 6 became owner of the suit property. The plaintiffs & defendants have equal share in the suit property. It has been contended that in the year 2007 after Dashera, Deepawali Festival, defendant No. 7 was stating that they have purchased the property of non-tribal, therefore, they started selling the property which created doubt over mind of the plaintiffs and when they enquired into the matter, no satisfactory explanation was given. (B) It is also the case of the plaintiffs that the plaintiffs claimed their share by partition of the suit property which was denied thereafter the plaintiffs obtained certified copy of the revenue record wherein names of the plaintiffs have not been mentioned as title holder of the suit property and the defendants have recorded their names. On above pleading, the plaintiffs have prayed for partition of 1/7 share and also for declaration of unregistered right of waiver in favour of defendant No. 1 to 6 dated 25.03.1992 to be null and void. 5. Defendants No. 1 to 6 have filed their written statement denying the allegations made in the plaint contending that they belong to tribal and they are followers of Budhadev and they are following Hindu rituals, therefore, provision of Hindu Succession Act is not applicable. It has been further contended that the plaintiffs have already given up their share, accordingly, their names have been deleted by the revenue authorities, therefore, the plaintiffs are not entitled to get any relief and would pray for dismissal of the suit. 6. Defendant No. 7 has also filed his written statement adopting the stand taken by defendants No. 1 to 6 and has denied the allegations made in the plaint mainly contending that the plaintiffs are tribal, therefore, the daughter is not entitled to get share in the suit property and would pray for dismissal of the suit. 7. Learned trial Court on the pleadings of the parties, has framed as many as eight issues. Issue No. 1, 2, 4 & 5 are relevant for adjudication of this appeal, as such, the same are extracted below:- “1. Whether the plaintiff & defendants No. 1 to 6 are governed by Hindu religion? 2. Whether the plaintiff is entitled to get equal right and share in the suit property similar to defendants No. 1 to 6? 4. Whether the plaintiffs have executed any document on 25.03.1992 regarding giving up their right on the suit property? 5. Whether the sale-deed dated 15.10.2007 is binding on the plaintiffs?” 8. The plaintiffs to substantiate their case have examined as Koushilya (PW-1), Kunnilal @ Horilal (PW-2), Bhagwat Dhurve (PW-3), Shushila (PW-4) & Mukta Dhurve (PW-5) and exhibited documents namely copy of order from 18.02.2008 to 31.05.2008 passed in Revenue Case No. 60A/06 (Ex. P/1), copy of application dated 15.02.2008 (Ex. P/2), reply of the application (Ex. P/3) & copy of sale-deed dated 15.10.2007 (Ex. P/4). 9. Koushilya (PW-1) in her examination-in-chief by way of affidavit has admitted that she belongs to tribal and governed by Hindu rituals. She has also stated that they worship of God Ram, Krishna, Shankar and celebrate Holi, Diwali, Dushera & Raksha Bandhan. This witness in her cross-examination has stated that they are Gond Tribal and perform worship Goura Gouri i.e. Budha Dev on the date of Diwali. She has admitted that they used to prepare statue of Budha Dev on the date of Diwali by mud and used to immersion of the statue on the same day. Page 5 of 11 She has denied that her sisters namely Shakun, Sushilabai have written right of waiver before the Patwari on Rs. 5/- stamp paper that she does not wish to take any share in their father’s property. 10. Kunnilal @ Horilal (PW-2) has also examined by way of affidavit reiterated the stand taken by himin the plaint. In the cross-examination, he has admitted that they do not go to masjid or church for worship. He has also stated that he does not go to Mandir. He has also stated that they celebrate festival of Budha Dev and do not celebrate festival of Holi, Diwari, Dushera etc. Bhagwat Dhurve (PW-3) in his cross- examination has stated that the plaintiffs have never tied rakhi. He has further stated that they mainly celebrate festival of Budha Dev and except this, they do not celebrate any festival like Holi, Dushera, Diwali etc. Shushila (PW-4) has stated that they are tribals and denied that they follow Hindu rituals. She has also stated that they worship God Ram, Krishna, Hanuman, Ganesh, Durga Devi and also celebrate Holi, Diwali, Dushera festivals. She has stated that the wedding is performed by Bhawar (Saptapadi) rituals and after death, funeral is performed and also admitted that the daughters have right over property of her father. This witness in her cross-examination has admitted that no pinddan is done at the time of death of family member. Mukta Dhurve (PW-5) has stated that they belong to Gond and daughter has no right over the father’s property and according to his knowledge till date, there is no matter where share of father’s property has been given to daughter. 11. The defendants to substantiate their case examined Prabhakar Kohle (DW-1), Trilochan Dewangan (DW-2), Ishwar Dewangan (DW-3) but no document has been produced in support of their contention. From the perusal of the evidence of the defendants, it is established that the plaintiffs and defendants do not fall within the ambit of Hindu and provisions of Hindu Succession Act is not applicable. 12. Learned trial Court after appreciating the evidence and material on record vide its judgment and decree dated 15.03.2010 has recorded its finding that the plaintiffs are not governed by Hindu law, therefore, the plaintiffs have no right to inherit the property of their father and accordingly, dismissed the suit filed by the plaintiffs. Being aggrieved with the judgment and decree passed by the learned trial Court, the plaintiffs have preferred first appeal before the first appellate court which has also been dismissed vide judgment and decree dated 12.04.2010 passed by the learned Additional District Judge, Kabirdham (Kawardha) in Civil Appeal No. 04A/2012. Being aggrieved with the judgment passed by the learned First Appellate Court, the plaintiffs have preferred the Second Appeal before this Court under Section 100 of the Cr.P.C. which has been admitted by this Court on 13.17.2021 by framing the substantial question of law as aforestated. 13. Learned counsel for the appellants/plaintiffs would submit that the finding recorded by the learned trial Court as well as First Appellate Court are bad in law. He would further submit that the First Appellate Court has committed illegality in recording its finding that it is for the plaintiff to prove that they are governed by Hindu law whereas this plea has been taken by the defendants in the written statement, therefore, it is incumbent upon them to prove that they are not governed by Hindu law and they are not tribals, therefore, they are not entitled to get exemption from application of Hindu Succession Act. It has been further contended that the learned First Appellate Court has taken into consideration the fact that the defendants have admitted that they governed by Hindu Law still the First Appellate Court has committed illegality in shifting the burden upon the plaintiff which is against the well settled position of law to prove this fact, therefore, the finding recorded by the learned First Appellate Court that the plaintiff is not able to plead and prove that they are following Hindu rituals for last many years deserves to be rejected. 14. Per contra, learned counsel for the respondents/defendants would submit that the findings recorded by the learned trial Court as well as by First Appellate Court are just and property and do not warrant any interference by this Court. 15. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 16. Learned counsel for the appellants would submit that the submission made by learned counsel for the respondents that the tribals are not entitled to get benefit under Hindu Succession Act is incorrect in view of well settled position of law by Hon’ble the Supreme Court in case of Tirith Kumar & others Vs. Daduram & others [2024 INSC 1005] without any cogent material placed on record by the defendants that the plaintiffs are not governed by Hindu law. Both the Courts below have committed illegality in shifting the burden upon the plaintiffs because this plea has been taken by the defendants and it is for the defendants to plead and prove this fact which is within their specific knowledge. He would further submit that in the evidence brought on record by the parties, it is quite vivid that the plaintiffs are able to prove the fact that they are governed by the Hindu law and despite sufficient material on record, both the court below have committed illegality in passing the judgment and decree against the plaintiffs. He would further submit that the defendants have admitted in their statement that the parties are governed by the Hindu law and when the fact is specifically admitted by the parties still both the Courts below have committed illegality in passing the judgment and decree against the plaintiffs and would pray for allowing the appeal. 17. On the other hand, learned counsel for the respondents/ defendants would support the judgment and decree passed by both the Courts bewlo and would submit that there is concurrent finding of fact that the plaintiffs are not governed by Hindu Succession Act, 1956 the appeal is liable to be dismissed. 18. Hindu Succession Act, 1956 has been amended in the year 2005 by which the daughter is also held to be coparcener and the daughter is entitled to get share in the property inherited by her father or ancestral property being coparcener. This issue has come up for consideration before Hon’ble the Supreme Court in case of Vinita Sharma Vs. Rakesh Sharma [(2020) 9 SCC 1] has held that the daughter being coparcener is entitled to get share in the property inherited by her father. In view of the above, the substantial question of law No. 1 deserves to be answered in favour of the appellant and similarly substantial question of law No. 2 deserves to be answered in favour of the plaintiff. Page 9 of 11 19. The defendants have taken specific plea that the plaintiffs and defendants are not governed by the Hindu Succession Act but they have not placed any material on record to substantiate this ground depriving the plaintiffs to inherit the ancestral property. Thus, the findings recorded by both the courts below suffer from perversity and illegality. Even otherwise, if it is held that the plaintiffs and defendants are tribals and they are not governed by the Hindu Succession Act, but in view of provisions of the Central Provinces Laws Act, 1875 (for short “the Act, 1875”) which provides that if there is no such provision, the Court shall act according to justice, equity and good conscience in accordance with Section 6 of the Act, 1875 reads as under:- “Section 6- In cases not provided for by section five, or by Rule in cases any other law for the time being in force, the Courts shall act according to justice, equity and good conscience.” 20. The provisions of the Act, 1875, entitlement of daughter belongs to tribal community and their right over the ancestral property, has come up for consideration before Hon’ble the Supreme Court in case of Ram Charan & others Vs. Sukhram & others [2025 INSC 865] wherein it has been held in paragraphs 16, 17, 26 to 29 as under:- “16. At the outset, it is observed that regarding the 1875 law, the impugned judgment notes that the same has been repealed as of March 2018 and, therefore, cannot be applied. We find this position to be mistaken. The Repeal Act No.4 of 2018 provides for a saving clause, which reads as under : “4. Savings.— The repeal by this Act of any enactment shall not affect any other enactment in which the repealed enactment has been applied, incorporated or referred to; and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing; nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in or from any enactment hereby repealed; nor shall the repeal by this Act of any enactment revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter or thing not now existing or in force.” (Emphasis supplied) 17. The effect of Section 4 is clear that no right having been accrued prior to the repeal of the Act shall be affected thereby. As we have already observed, the parties to the instant lis are neither governed by Hindu nor Muslim laws and, therefore, would be covered by Section 6 of the 1875 Act. So, the right having been accrued in favour of the appellant-plaintiffs’ mother upon the death of her father, which was approximately 30 years before the filing of the plaint became crystallized and would not be affected by the fact that the Act was no longer in the statute book. This Act, therefore, necessarily had to be applied by the High Court. At this juncture, it is pertinent to consider the meaning of ‘justice, equity and good conscience’. xxx xxx xxx xxx 26. This discussion on equality under Article 14, which, needless to state, includes the aspect of gender equality within its fold will be, in our view, incomplete without reference to the first and most commendable step taken under the Hindu Law by way of the Hindu Succession (Amendment) Act, 2005 which made daughters the coparceners in joint family property. The object and reasons as stated in the Bill are instructive in the general sense and we reproduce the same with profit : “…The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975...” (Emphasis supplied) 27. Similarly, we are of the view that, unless otherwise prescribed in law, denying the female heir a right in the property only exacerbates gender division and discrimination, which the law should ensure to weed out. 28. Granted that no such custom of female succession could be established by the appellant-plaintiffs, but nonetheless it is also equally true that a custom to the contrary also could not be shown in the slightest, much less proved. That being the case, denying Dhaiya her share in her father’s property, when the custom is silent, would violate her right to equality vis-à-vis her brothers or those of her legal heirs vis-à-vis their cousin. 29. In view of the above discussion, we are of the firm view that in keeping with the principles of justice, equity and good conscience, read along with the overarching effect of Article 14 of the Constitution, the appellant-plaintiffs, being Dhaiya’s legal heirs, are entitled to their equal share in the property. The judgments of the Courts below are accordingly set aside to that extent. The civil appeal is allowed accordingly. 21. In view of the law laid down by Hon’ble the Supreme Court, the tribals’ daughters are also entitled to get property in the share of parental or ancestral property. As such, the judgment and decree dated 15.03.2010 passed by the trial Court i.e. Civil Judge Class-II, Kawardha, District- Kabirdham (C.G.) in Civil Suit No. 35-A/2009 and affirmed by First Appellate Court i.e. Additional District Judge Kawardha (Kabirdham) vide judgment and decree dated 09.07.2012 in Civil Appeal No. 4-A/2012 are set aside. Thus, each of the plaintiffs is entitled to get 1/7th share in the property and sell to the extent of their share, are liable to be set aside and accordingly, it is set aside. 22. Accordingly, the instant Second Appeal is allowed. A decree be drawn up accordingly. - Sd/- (Narendra Kumar Vyas) Judge Arun