MADHU KISHWAR AND ORS. v. STATE OF BIHAR

The following Order of the Court was delivered

E These two petitions under Art. 32 of the Constitution challenge the provisions of the Chhota Nagpur Tenancy Act which confines succession'to property to the male line by contending that the provision is discriminatory against women and, therefore, ultra vires the equality claiise in the Con- -Y stitution. Petitioner no. 1 in the first writ petition is the editor of a magazine while petitioners nos. 2 and 3 are two ladies of the 'Ho' tribe, adrllittedly one of the scheduled tribes residing in Singhbhum district of Bihar. The petitioners in the other writ petit.iQn belong to the 'Oraon' tribe of the Chhota Nagpur area. Challenge is essentially to ss. 7 and 8 of the Chhota Nagpur Tenancy Act. of 1908. Sections 7'an_d 8 of the Act provide: "7.(1) Meaning of 'raiyat having khunt-khatti rights'. - "Raiyat having khunt katti rights" means a raiyat in occupation of, or having any subsisting title to, land reclaimed from jungle by the original founders of the village or their descendants in the male line, when such raiyat is a.11Jember of the family which founded . the village or a descendant in the male line of any memoer of such family: Provided that no raiyat shall be deemed to have khunt katti H

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rights in any land unless he and all his predecessors-in-title A have held such land or obtained a title thereto by virtue of inheritance from the original founders of the village.

(2) Nothing in this Act shall prejudicially affect the rights of any person who has lawfully acquired a title to a kbunt kat- tidari tenancy before the commencement of this Act. B 8, Meaning of Mundari Khunt-khattidar. - "Mundari khunt- --( kattidar" means a Mundari who bas acquired a right to hold jungle land for the purpose of bringing suitable portions there- . of under cultivation by himself or by male members of his fami- ly, and includes- C (a) the heirs male in the line of any such Mundari, when they are in possession of such land or have any subsisting title thereto; and -

(b) as regards any portions of such land which have remained D continuously in the possession of any such Mundari and his descendants in the male line, such descendants."

Reliance has been placed on a Division Bench decision of..the Patna High court in the case of Jitmohan singh Munda v. Ramratll1l Singh & Anr., 1958 BUR 373 in support of the proposition that the Patna High Court E had more than 30 years back taken the view that the provision was not operative and- a widow was also entitled to inherit. When analysed the judgment of the Patna High Court does not seem to provide prop for the argument raised in the writ petitions. In paragraph 4 of the judgment the High Court indicated:

"The contention based on section. 8 also terminologically can- F not be accepted in the first place, in defining khunt-kattidari interest. As quoted above, the word used is "includes" whereafter occur clauses (a) and (b) containing reference--rQ- -- the male in the male line of a Mundari. The word "inclli(Jes_" - cannot be taken to be exhaustive. It only states that the heirs In the male line alone are in the category of a Mundari khunt-kat- G tidari in their possession, but in implication it may well be that the heirs of the deceased Mundari who are females will not be entitled to succeed to it. That does not mean that the section is so definite as to exclude the inclusion of the widow of the deceased Mundari as a person who can hold the land. during H

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A her life time. Moreover, clause (a) refers to the heirs male in the male line. The word · "line" is also significant because it evidently refers to a person who has descended from the deceased Mundari whose interest may be in question. Even, therefore, if these words "the heirs male in the male line" were to be given exclusive meaning, then also it would mean only the B persons who are descended from him or represent another male line altogether. There is no reference whatsoever to the exclusion of the widow of the particular Mundari. In my opinion, the position in respect of the interest of the widow of the deceased Mundari is the same in respect of this property as it would be her position in regard to the other properties of her c late husband. Since the court below has accepte~ that the fami- ly has followed the Hindu rites and Hindu religion, the widow of Kartik Singh would be entitled to be in possession. Section 8, as I have discussed, is not inconsistent with this position of the widow and, as such, the court below took the correct view in holding that the plaintiff could not recover possession of the property during the life time of defendant no. 1, but he is entitled to a declaration that he will succeed after the death of the widow."

The interpretatiQn given- of S. 8 in the Division Bench decision, therefore, does not provide full support to the point raised before us by the . writ petitioners in the two cases. It~as a case confined to its own facts and · the Court proceeded to dispose of the case with reference to the widow by bringing in the concept of Hindu law on the finding that the family had adopted Hindu law and was not bound by its own caste custom.

At an earlier stage while one of thes~ writ petitions was heard we had give~ time fo the State of Bihar to consider the feasibility of carrying out an amenqment in the offe~ding sections and to clearly provide that succession was not confined to the male in the male line. A committee appears to have been set up by the State of Bihar to examine this question and it has come to the conclusion that by custom prevalent among the scheduled: tribes a female heir is excluded from succession and in case the law was otherwise interpreted or changed and property was allowed to go into th~ hands of female heirs, there would be great agitation and unrest in the area among the scheduled tribe people who have custom-based living.

Scheduled tribe people are as much citizens as others and they are entitled to the benefit of guarantees of the ~onstitution. It may be that the

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~· law can provide reasonable regulation in the matter of succession to property with a view to maintaining cohesiveness in regard to Scheduled Tribes and their properties. But exclusion from inheritance would not be appropriate. Since this aspect of the matter has not been examined by the State of Bihar and the feasibility of permitting inheritance and simul- ' ; taneously regulating such inheritance for the purpose of ensuring that the property ~oes not go out of the family by way of transfer or otherwise we are of the view that in the peculiar facts of the case the State of Bihar ..-..( should re-examine the matter. In these circumstances, instead of disposing of the two writ petitions by a final order we adjourn the hearing thereof for three months and direct the State of Bihar to immediately take i!lto con· sideration our order and undertake the exercise indicated and report to the Court by way of an affidavit and along with that a copy of the report may be c furnished by the Committee to be set up by the State of Bihar. This matter shall not be considered as part-heard and shall be next listed before a Bench where Justice Kuldip Singh is one of the members.

--, ..... R.P. Petitions adjourned.