( 2025:JHHC:23623 ) IN THE HIGH COURT OF JHARKHAND AT RANCHI Second Appeal No. 26 of 2003 1. Kairo Tudu 2. Dhena Tudu Both sons of late Lerha Tudu 3. Barka Tudu S/o Late Ramjit Tudu All residents of village-Keshari P.S. Jarmundi, P.O. Singhni Chaura Bahiar District-Dumka … … … … Plaintiffs/Appellants/Appellants Versus 1. Brihaspati Rai S/o Batan Rai Resident of Village-Keshari, P.O. Singhni Chaura Bahiar, P.S. Jarmundi, District-Dumka 2. Smt. Saraswati Devi W/o Brihaspati Rai resident of village- Keshari, P.O. Singhai Chaura Bahiar, P.S. Jarmundi, District Dumka 3. Mahendra Rai S/o Brihaspati Rai represented through his father and natural guardian Brihaspati Rai and resides with His parents at Deoghar, P.O. Deoghar, P.S. Deoghar Town, District Deoghar … Defendants 1st party /respondents 1st Party/ Respondents 1st Party 4. Paku Hansda wife of late Jatla Hansda, Resident of village-Keshari P.S. Jarmundi, District-Dumka … Defendant 2nd party/respondent 2nd party/respondent 2nd party --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Rajeeva Sharma, Senior Advocate : Mr. Om Prakash, Advocate : Mr. Ritesh Kumar, Advocate For the Respondents : Mr. Jay Prakash Jha, Senior Advocate : Mr. Aishwarya Prakash, Advocate --- 18/13.08.2025 Heard the learned counsel appearing on behalf of the parties. 2. This appeal has been filed against the judgement dated 30.09.2002 (decree signed on 03.10.2002) passed by District Judge, Dumka in Title Appeal No. 5/2001 confirming the judgment dated 05.01.2001 (decree signed on 16.01.2001) passed by the learned Subordinate Judge, Dumka in Title Suit No. 35/1994. The learned Trial Court had dismissed the suit. 3. This appeal was admitted for final hearing on the following substantial questions of law: - 1. Whether in view of the recital in Exhibit-B, the courts below erred in law in holding that Mostt. Paku Hansda ( 2025:JHHC:23623 ) 2 was not governed by Santhal custom and had ceased to be a scheduled tribe? 2. Whether the provisions of Hindu Adoption and Maintenance Act, 1956 was applicable in case of adoption by a scheduled tribe of a non-scheduled tribe? Submission on behalf of the appellants 4. Learned senior counsel appearing on behalf of the appellants while referring to the substantial question of law has referred to Exhibit-B which is the registered deed of adoption and has submitted that it has been suppressed by the defendant no. 4 that she had a daughter. He submits that the term Santaan has been interpreted to be son. The learned senior counsel has submitted that as per Santhal law of inheritance, the daughter does not inherit the property, rather the inheritance is by performing Gharjamai form of marriage and once Gharjamai form of marriage is performed as per law, the Gharjamai acquires the status of a son and inherits the property. 5. The learned senior counsel has also referred to the recitals in the adoption deed to submit that the various ceremonies have been mentioned by referring to Wang Devta are referable to Santhal custom. Further, the ceremony of 8Nim Damda9 and handing over and taking over of the child has been mentioned in the deed of adoption which itself goes to show that the defendant no. 4 was a Santhal and not Hindu and accordingly, the finding of the learned court that the defendant no.4 was a Hinduised santhal and was governed by the Hindu religion and was governed by Hindu Adoption and Maintenance Act, 1956 is not correct. The learned counsel submits that the defendant no. 4 being a tribal, the Hindu Adoption and Maintenance Act, 1956 does not apply. He has also submitted that there is no concept of a Santhal lady taking anybody in adoption. He has also submitted that otherwise also a santhal lady cannot adopt a Hindu or non-santhal as per customary law of santhal. Submission on behalf of the respondents 6. The learned senior counsel for the respondents has opposed the submission of the appellants and has submitted that there is no legal ( 2025:JHHC:23623 ) 3 bar of a Santhal lady adopting a Hindu boy by way of adoption. The learned senior counsel has also submitted that the ceremonies of both Santhal as well as Hindu were followed. He has also submitted that there was enough evidence that the defendant no. 1 was sufficiently hinduised. However, he has submitted that irrespective of whether he was hinduised or governed by Santhal customary law, the registered deed of adoption is valid in as much as no such customary law has been proved by the plaintiffs that a Santhal woman cannot adopt a Hindu boy. The learned counsel has relied upon the judgment passed by this court in the case reported in 2009 (1) JCR 262 wherein it has been held that there is no bar with respect to a Santhal widow to adopt a child. In the present case also, no such prohibition in the custom amongst Santhal has been brought on record debarring the Santhal woman from adopting a non-santhal child. 7. On the point of hinduised Santhals, the learned senior counsel has relied upon the judgment passed by the Hon9ble Supreme Court reported in (2000) 8 SCC 587 (Labishwar Manjhi versus Pran Manjhi and others). The learned counsel for the respondents has submitted that as per the judgment passed by the learned courts, there was no legal bar in adoption of a Hindu boy by a Santhal Tribal and therefore the substantial question of law does not arise for consideration in this case. Rejoinder argument of the appellants 8. In response, the learned senior counsel for the appellants has submitted that the judgment relied upon by the respondents was in relation to adoption of a child from Santhal community itself and so far as the present case is concerned, the adoption is from outside of Santhal community and therefore the said judgment does not apply to the facts and circumstances of this case. Findings of the Court: - 9. The suit was filed challenging the registered deed of adoption dated 30.09.1994 executed by defendant no. 4 adopting defendant no.3 on the ground of prevailing social customs amongst the schedule tribe community namely santhal. The defendant no.1 and 2 are the natural ( 2025:JHHC:23623 ) 4 father and mother of defendant no.3 respectively. As per the relationships between the plaintiffs and the defendant no. 4, the genealogical table was furnished indicating that the common ancestor Dhani Tudu, had two sons namely Lerha Tudu and Sawan Tudu. Lerha Tudu had two sons namely Kario Tudu and Dhena Tudu who were the plaintiffs nos. 1 and 2 in the suit. The other brother namely Sawan Tudu expired leaving behind one son, namely, Jatla Tudu and defendant no. 4 was the wife of Jatla Tudu who had no male issue but a daughter namely Alodi tudu. Alodi tudu was already married and was not a party to the suit. 10. It was the case of the plaintiffs that Alodi Tudu had married several times and under the influence of defendant no. 1 she developed illicit relationship and then the defendant no. 4 and the daughter Alodi Tudu were completely in the clutches of defendant no.1. The defendant no. 1 got a deed of adoption created on 30.09.1994 falsely and dishonestly by which the defendant no.3 (son of defendant no. 1) was adopted by the defendant no. 4 on 13.01.1994. The defendant no. 2 is the wife of defendant no. 1 and defendant no. 3 is the so-called adopted son and minor. 11. The specific case of the plaintiffs was that no adoption was at all done by performing any ritual or ceremony. It was further stated that there is no prevalent custom of adoption in santhal community by any widow and that too of adoption of non-santhal (Diku) by santhal. Other points were also raised that practically there was no transfer of defendant no. 3 to the family of defendant no. 4 and that the defendant no.3 was still living with his natural parents (defendant no. 1 and 2). The locus standi of the plaintiffs was explained by stating that according to customary law of santhal regarding inheritance, the plaintiffs had the right to inherit the property in absence of any son of defendant no. 4 and therefore they had the locus to challenge the alleged deed of adoption. 12. The defendant nos. 1, 2 and 4 had filed a common written statement and denied the existence of any customary law, if applicable to the society of santhals with respect to succession, inheritance, ( 2025:JHHC:23623 ) 5 marriage and adoption. It was asserted that there was a revolutionary change in the living style, culture amongst the Santhals in the locality and the Santhals have adopted the life style of Hindus in every sphere followed by culture of Hinduism. It was also asserted that the Santhal widow having no son is entitled to take even a Hindu boy of her choice even as per custom. It was further stated that in the locality, there was famous temple of Baba Basukinath and the Santhals of the locality used to worship Baba Basukinath with all religious sincerity and the family of the plaintiffs as well as defendant no. 4 were quite separated from each other since long. 13. It was further asserted that the defendant no. 4, the adopted son and the defendant no. 3 were all living jointly in the house of defendant no. 4 and they are in possession and occupation of the property of the husband of defendant no. 4. 14. The other allegations regarding character etc. of the daughter of defendant no. 4 were denied. 15. It was also asserted that many persons of the locality including the village Pradhan Govind Tudu, who is none else but the own nephew of the plaintiff, had also participated in the eve of adoption and local ceremony known as 8Nimdamari9 meaning as re-naming of adopted boy, was also performed. It was asserted that a Santhal widow has a valid right of adoption and there was no bar in adopting a Hindu boy as the two societies were so intermingled with each other in the locality and they jointly share the feelings together. 16. The learned Trial Court recorded that the following points are to be considered: - I. Whether the defendant no. 4 had a right to adopt? II. If so, whether she has right to adopt a Hindu boy? III. Whether the plaintiffs have any locus standi specially when the defendant no. 4 has a living daughter (of course who has not made a party in the suit)? 17. The learned Trial Court framed the following issues for consideration: - (i) Is the suit, as framed, maintainable? ( 2025:JHHC:23623 ) 6 (ii) Whether the plaintiffs have valid cause of action for the suit? (iii) Whether the plaintiffs have legal status to file the suit? (iv) Whether the defendant no. 3 is adopted son of defendant no.4? (v) Whether deed of adoption no. 152 dated 30.09.92 is valid and genuine? (vi) Whether the plaintiffs are entitled to a decree as prayed for? 18. Both the parties led oral and documentary evidences. The registered deed of adoption was Exhibit-B. 19. The issue nos. (iv) and (v) were taken up together. The learned trial Court discussed the materials and recorded that there was clear cut evidence that the village of the plaintiffs belong to Santhal and densely populated with that of Hindu families. The learned court also recorded that the members of the family of plaintiffs and defendant no. 4 used to worship at the temple of lord Shiva commonly known as Baba Basukinath and followed the puja of Hindu Goddess. The D.W. 1 admitted in her evidence that she used to be guided by the customs of Hindus. D.W. 1 is defendant no. 4. The learned Court ultimately recorded by referring to law of inheritance and observed that the discussion of custom of Santhal as available in the Gantzer9s settlement report does not suggest that a widow of Santhal is lawfully restrained to adopt a boy that too of a Hindu boy. Then the learned court went on to see as to whether the custom of adoption is available in the society of santhals or not. The learned court observed that as per the plaint it was the specific case that there is no prevalent custom of adoption in Santhal community by any widow and that too there is no custom of adoption of any 8Diku9 by santhal community. The learned court reiterated that there was no rule to show which restrains the system of adoption in Santhal community and also referred to Section 24 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 which specifically dealt with adoption amongst Santhal community and ultimately held that adoption in Santhal community is well recognized and prevalent and held that the question that there is no prevalent custom of adoption in Santhal community does not stand. ( 2025:JHHC:23623 ) 7 Then the learned Trial Court went on to consider as to whether there is any custom of adoption of any outsider (Diku) by any Santhal, the learned Court was of the view that the since the plaintiffs have challenged the proprietary of adoption of Diku by Santhal community, it was the plaintiffs who was required to prove the same and the learned court ultimately held that no rule can be formulated governing the choice of a person who desires to take a boy in adoption and it could not be gathered from the evidence of the plaintiffs with regard to such exclusion and that desire and necessity of adoption depends upon the personal choice by selection of a boy. 20. Thereafter the learned court examined exhibit-B and observed that the aforesaid ceremony of 8Neemdamari9 were performed. The learned court observed that there was evidence that on the eve of adoption, the puja according to Hindu customs were also performed in presence of pundit and puja of satya-narayan katha was also observed. 21. The learned trial court after considering the totality of the materials on record was of the view that both customs, Santhal process as well as Hindu custom were performed and the court did not find anything wrong in performance of ceremony of both Hindu custom as well as Santhal custom. The learned trial court also observed that D.W. 2, Govind Tudu, who was the member of the same family, had come up before the court to support the giving and taking of defendant no. 3 in adoption and the ritual of adoption of defendant no. 3 cannot be severed otherwise only because another witness, D.W. 3, reported that he had not seen any Santhal woman taking a 8Diku9 in adoption. The learned court ultimately held that if the said witness D.W. 3 had not experienced any Santhal woman taking any child in adoption that would not take the shape of a binding rule of the custom of adoption by Santhal woman with respect to a child, much less, if the child is Hindu. The learned court also recorded that merely because as per Santhal law of inheritance, a widow has not even a right to create Gharjamai, that does not necessarily mean that she has no right to adopt a child because the rule of inheritance does not guide the rule of ( 2025:JHHC:23623 ) 8 adoption. The learned court observed that both the aspects are different in operations and effects. 22. The learned trial court ultimately came to the conclusion that there was no material to observe that a Santhal woman cannot adopt a child, much less a child of Hindu community. Since the defendant no. 4 herself had asserted to have exercised the right of rituals and customs of adoption, the court came to a definite conclusion that defendant no. 3 is the adopted son of defendant no. 4 and the adoption deed No. 152 dated 30.09.1992 was declared to be valid and genuine and the suit was dismissed. 23. The learned 1st Appellate Court was of the view that defendant no. 4 admittedly took the defendant no. 3 in adoption after death of her husband. She also admitted to have executed a deed of adoption (Exhibit-B), therefore the deed of adoption (exhibit-B) cannot be said to be forged and fabricated. The only question which remained was whether the defendant no. 4 was legally entitled to adopt the defendant no. 3? The learned 1st Appellate Court considered the materials on record and a finding in paragraph 17 of the judgement has been recorded that defendant no.4 had been 8Hinduised9 and the adoption was valid. The extract of paragraph 17 of the judgement relevant for the purposes of this case is quoted as under: - <According to the plaintiffs/appellants since defendant no.4 Paku Hansda is Schedule Tribe (Santhal) widow at the time of adopting the defendant no.3, she was not legally entitled to take any one in adoption that too of a non-Santhal boy. On the other hand according to the defendant/respondents since Santhal of the area and particularly the defendant no.4 became Hinduised, she was entitled to adopt the defendant no.3. It is an admitted possession of Santhal custom that there is no express provision except in the form of Gharjamai marriage or by a widow Santhal that too with the consent of agnates of her husband who will be the ultimate heirs on death of her husband. But in this suit since the defendants no. 4 Paku Hanada as D.W.1 clearly stated on oath that she became Hindu and she adopted Hindu customs and she used to worship Hindu God and Gods, she is being governed by Hindu law and not by Santhal customs. In the opinion of ( 2025:JHHC:23623 ) 9 this court when defendant no.4 that she is observing Hindu Customs and rights no other can challenge it. Besides D.W.2 Gobind Tudu who is nephew of husband of defendant no.4 Paku Hansda also asserted that they adopted Hindu customs and religions. Besides other witnesses of the defendants also supported that defendant no.4 has been observing Hindu customs and religion. Hence in the opinion of this court the learned lower court rightly held that Paku Hansda became Hinduised.= 24. The learned 1st appellate court ultimately dismissed the appeal. 25. This court finds that over and above the above findings that the defendant no.4 was hinduised , the learned courts have also arrived at finding that there was no legal bar amongst Santhal in adoption of Hindu boy by a Santhal widow and the alleged custom that child for adoption, if any, could only be taken from Santhal community, could not be proved by the plaintiffs by cogent evidence. The learned courts also recorded that the plaintiffs had also stated that there was no system of adoption amongst Santhal community, but such plea was also rejected by the learned courts. This court also finds that even as per the judgement passed by this court reported in 2009 (1) JCR 262 (Narayan Soren and others versus Ranjan Murmu and others) (supra) it has been observed in paragraph 19 of the judgement that from the reading of proviso to section 24 (2) of the (Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 there was sufficient indication about the custom of adoption amongst Santhals. The learned trial court has also referred to the custom of Santhal as available in the Gantzer9s Settlement report and held that they do not suggest that the widow of a Santhal is lawfully restrained to adopt a boy that too of a Hindu boy. Thereafter the learned trial court ultimately held that question, that there is no prevalent custom of adoption in Santhal Community, was not correct. The learned trial court further considered the proprietary of adoption of a Diku (here- hindu boy) by a Santhal Community and observed that such challenge was thrown by the plaintiffs and therefore it was the plaintiffs who had to prove it, which the plaintiffs failed to prove. The learned court then held that desire and necessity of adoption depend upon personal ( 2025:JHHC:23623 ) 10 choice. The adoption was ultimately held to be valid by the learned trial court after appreciation of the materials on record, the 1st appeal was also dismissed. 26. So far as 1st substantial question of law is concerned, the same essentially deals with Exhibit-B (registered deed of adoption). Perusal of Exhibit-B reveals that defendant no. 4 stated that she did not have the child and as per Hindu religion and also custom of Santhal, there is a custom of giving Mukhagni as a last rites and shraddha-karm etc. is required to be performed and for that a son is required and that son is also required to carry forward the linage of the family and therefore defendant no.4 thought it proper to adopt a son and after search, she found the defendant no. 3 suitable. It has also been mentioned in the registered deed of adoption (exhibit-B) that the defendant no.4 invited her family members on 13.01.1994 which was a Thursday and Vangdevta was worshipped as per Santhal custom and Hawan was also performed and as per santhal custom, Neemdamari was also performed and there was handing over and taking over of the child. It was also mentioned in the adoption deed that the child once grows up and the defendant no. 4 dies, he would perform the ritual of mukhagni, shraddh as per santhal custom and would also take care of the agriculture of the family. 27. This court finds that as per Exhibit-B she claimed herself to be following Hindu religion and also governed by Santhal custom and referred to mukhagni and shraddha-karma and also hawan and the purpose of adoption was for the aforesaid purposes, a son is necessary. This court also finds that the learned courts have considered the recital of Exhibit-B and also the evidence of witnesses particularly D.W. 6 and D.W. 3 who had also stated that on the eve of adoption, pooja according to Hindu custom was performed in presence of pandit and Satyanarayan katha was also observed and the learned courts observed on the basis of materials on record that the custom in connection with Hindus as well as Santhals were performed at the time of adoption. This court is of the view that Exhibit-B on the one hand revealed that the defendant no. 4 was following Hindu religion ( 2025:JHHC:23623 ) 11 and at the same time, referred to Santhal customs. Further, there was enough evidence on record to show that the family was performing pooja and other rituals by worshipping Lord Shiva at Baba Basukinath Hindu Temple. This evidence was supported by the evidence of the plaintiff (P.W-3) and also D.W-6 and D.W. 2 (the nephew of the husband of the defendant no.4). The defendant no.4, who was examined as D.W-1 clearly asserted that she was guided by Hindu customs. The exhibit-B was not the isolated evidence which was taken into consideration to come to findings. Rather, exhibit-B was seen in the light of the other materials placed on record and the learned court recorded a finding of fact that the defendant no. 4 was sufficiently 8Hinduised9. The 1st substantial question of law is answered by holding that the learned court has not erred in holding that the defendant no.4 was sufficiently 8Hinduised9 and was not governed by Santhal custom even in view of the recital in Exhibit-B as discussed above when exhibit-B is taken in the light of the other evidences placed on record which included the evidence adduced by the plaintiffs themselves. The 1st substantial question of law is accordingly answered against the appellants(plaintiffs) and in favour of the respondents (defendants). 28. So far as the 2nd substantial question of law is concerned, this court finds that there is a clear finding based on materials on record and upheld while answering the 1st substantial question of law that the defendant no.4 was sufficiently 8Hinduised9 and therefore this court is of the considered view that the provisions of Hindu Adoption and Maintenance Act, 1956 was applicable in case of adoption of defendant no.3 (a Hindu boy) by the defendant no.4. In the judgment passed by the Hon9ble Supreme Court in the case of Labishwar Manjhi versus Pran Manjhi and others (supra) it has been clearly held that persons belonging to Santhal schedule tribes are hinduised and following Hindu traditions, exclusion under Section 2(2) of the Hindu Succession Act 1956 will not apply and parties would be governed by the Hindu Succession Act,1956. The 2nd substantial ( 2025:JHHC:23623 ) 12 question of law is also answered against the appellants(plaintiffs) and in favour of the respondents (defendants). 29. Having answered substantial questions of law in favour of the respondents (defendants), this court finds no merit in this appeal which is accordingly dismissed. 30. Pending I.A., if any, is closed. 31. Let this order be communicated to the court concerned through FAX. (Anubha Rawat Choudhary, J.) Dated: 13/08/2025 Uploaded on-20/11/2025 Binit