RANCHHODBHAI JESINGBHAI SINCE DEAD THROUGH HIS HEIRS AND LRS vs ANCHHIBHAI KAVJIBHAI CHAUDHARI SINCE DEAD THROUGH HIS HEIRS AND LRS
- Court
- Gujarat High Court
C/SA/500/2026 (GJHC240603442026) CAV JUDGMENT DATED: 11/09/2026
Reserved On : 20/08/2026
Pronounced On : 11/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 500 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/SECOND APPEAL NO. 500 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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RANCHHODBHAI JESINGBHAI SINCE DEAD THROUGH HIS HEIRS AND
LRS & ORS.
Versus
ANCHHIBHAI KAVJIBHAI CHAUDHARI SINCE DEAD THROUGH HIS
HEIRS AND LRS & ORS.
==========================================================
Appearance:
MR NV GANDHI(1693) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. Heard Mr.N.V.Gandhi, learned advocate for the appellants at
length. Mr. Gandhi, learned advocate, took me through the judgement and
decree passed by the courts below, as well as the pleading and evidence
submitted with the paper-book.
2. The present Second Appeal filed under Section 100 of the Civil
Procedure Code, 1908 (CPC), which is arising out of the judgment and
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rd
decree dated 24.06.2026 passed by the 3 Additional District Judge, Surat
at Bardoli, in Regular Civil Appeal No. 51 of 2015 (Old RCA No. 183 of
2012 & 2 of 2012), whereby the Appellate Court has confirmed the
judgment and decree dated 07.12.2011 passed by the Principal Senior
Civil Judge, Bardoli, in Special Civil Suit No. 111 of 2011 (Old Regular
Civil Suit No. 26 of 2002).
2.1 The appellants herein are the legal heirs of the original plaintiff,
and respondent Nos. 1 and 3 herein are the legal heirs of original
defendant Nos.1 and 3, while the remaining respondents are original
defendant Nos.2, 4 and 5. For the sake of brevity and convenience, as far
as possible, hereinafter, they will be referred to as the ‘plaintiff’ and the
‘defendant’, respectively.
SHORT FACTS
3. The original plaintiff claimed to be the brother of one Chhaniben, who
died issueless on 15.07.1991. The said Chhaniben was married to one
Jivlabhai, who hailed from Village - Nogama, Taluka - Mandvi, District -
Surat, and was holding agricultural lands by way of tenancy rights. Such
lands were subject matter of the suit. Since Jivlabhai died issueless prior
to Chhaniben, being his wife, she had inherited the suit properties, and
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her name was accordingly mutated in the revenue records.
3.1 As per the case of the plaintiff, his sister Chhaniben executed one
registered Will dated 24.07.1972 in favour of his son, namely,
Raysangbhai. It is to be noted here that the plaintiff could not brought the
aforesaid Will on record. Rather, it came on record that Chhaniben
executed registered Will dated 01.07.1991 in favour of the defendant,
thereby bequeathed her agricultural lands in favour of the defendant. The
plaintiff appears to have referred in the plaint that the Will was executed
by Chhaniben in favour of the defendant. Likewise, the plaintiff also
averred in the plaint that he also executed a Will on 01.07.1991 in favour
of the defendant, but, according to the plaintiff, he has cancelled his Will
on 04.07.1997, and one power of attorney issued in favour of the
defendant by the plaintiff was also got cancelled on 27.05.2002.
3.2 Thereafter, on 27.09.2002, Regular Civil Suit No. 26 of 2002 was
instituted by the plaintiff seeking relief of declaration and injunction
against the defendant. It has been prayed that his sister Chhaniben had no
right to execute a Will in favour of the defendant and, for the reasons set
out in the plaint, the Will may be declared as not legal. It was also prayed
that, since the plaintiff happens to be the brother of Chhaniben, as a rule
of survivorship, the plaintiff should be declared as the sole owner of the
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suit properties. The plaintiff further prayed that the defendant should be
directed to hand over the possession of the suit properties along with
mesne profits. The permanent injunction was also sought to the effect that
the defendant shall be restrained from interfering with the possession of
the plaintiff qua the suit property bearing Block Nos.51 and 366 at
Village - Borigala, Taluka - Mandvi, Dist - Surat. It was lastly prayed that
a Will dated 24.07.1972 executed by Chhaniben in favour of the
defendant shall also be declared illegal, as she had no right to execute the
Will.
3.3 Thus, essentially, the plaintiff sought a declaration that his sister
Chhaniben had no right to execute a Will in favour of the defendant and,
being the brother of deceased Chhaniben, as a rule of survivorship, he
should be declared as the owner of her properties. The plaintiff had
declared in the plaint that, since he belongs to the Scheduled Tribe
(Chaudhari Community), exempted from paying any Court fees. It
appears that the caste certificate was produced at Exhibit-58 before the
Trial Court.
3.4 The defendant had appeared and contested the suit by filing a
written statement. It is the case of the defendant that the execution of the
Will dated 01.07.1991 by Chhaniben in favour of the defendant was well
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within the knowledge of the plaintiff, inasmuch as the plaintiff himself,
along with the witness to the Will, went to the office of Advocate for
preparation of the Will and, accordingly, after the demise of Chhaniben,
the name of the defendant entered into the revenue record qua her
agricultural lands bequeathed in favour of the defendant, which are the
subject matter of the suit.
3.5 It is discernible from the pleadings of the defendant that Jivlabhai,
the husband of Chhaniben's, had a brother named Kavlabhai Chogdabhai.
The said Kavlabhai was alive at the time of Channiben’s death and had
instituted Regular Civil Suit No. 46 of 1991 against both the plaintiff as
well as the defendant. It appears that the plaintiff admitted the possession
of the defendant when filed joint written statement with the defendant in
the said suit. It was also disputed that, as a rule of survivorship, the
plaintiff could not have inherited the property of Chhaniben especially
when Chhaniben's brother-in-law, i.e., Kavlabhai, was alive as on the date
of her death.
3.6 The Trial Court framed the following issues and answered
accordingly:-
“ 1) Whether plaintiff proves the existence of will dtd.24.7.72
executed by deceased Chhaniben in favour of Raysingbhai
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Ranchhodbhai Chaudhari?
2) Whether plaintiff proves that will, which had been executed in
favour of defendants by plaintiff, was revoked on 4.7.1997?
3) Whether plaintiff proves that during the life time of deceased
Chhaniben, he is in legal possession upon lands bearing Block
No.51 & 52 as co-owner and after the death of deceased Chhaniben
he became the sole owner of suit lands by rule of survivorship?
4) Whether plaintiff is entitled to get back possession of house
No.4/101 & 4/102 from the defendants?
5) Whether plaintiff is entitled to seek any relief as prayed?
6) What order and decree?
5. My findings as to above issues are as under:
1) In negative.
2)In affirmative.
3) In negative.
4) In negative.
5)In partly affirmative.
6) As per final order.”
3.7 The parties led oral and documentary evidence. The plaintiff
examined himself and submitted few revenue records, including the
registered Will dated 01.07.1991 executed by Chhaniben in favour of the
defendant, along with its index copy submitted at Exhibits 80 and 81,
respectively. Whereas, defendant No.1 examined himself and also
examined the witnesses to the Will, including the Registrar in whose
office the aforesaid Will was presented for the registration. So far as
documentary evidence is concerned, the defendant appears to have
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submitted a certified copy of the written statement and affidavit of the
plaintiff-defendant filed in RCS No. 46 of 1991, along with the certified
copy of the list of documents produced in RCS No. 46 of 1991.
3.8 It appears that RCS No. 46 of 1991 was filed by Kavlabhai
Chogdabhai, who happens to be the brother-in-law of Chhaniben, against
the plaintiff and the defendant. It further appears that final outcome of
RCS No. 46 of 1991 was not placed on record by the parties.
Nonetheless, it came on record that, at the time of death of Chhaniben,
her brother-in-law, namely, Kavlabhai Chogdabhai, was alive. It also
came on record during cross-examination of the defendant No.1 that
Chhaniben and the plaintiff were born of the same mother but different
fathers.
3.9 After appreciating the evidence on record and having considered
the fact that the plaintiff failed to prove the custom of his tribe whereby,
he would only be entitled to inherit the property of his sister, Chhaniben,
by the rule of survivorship, accordingly, the Trial Court disbelieved the
claim of the plaintiff; rather, it relied upon the tenets of old Hindu law, as
the Hindu Succession Act, 1956 (herein after referred as “ the Act, 1956 ”)
is not applicable to the parties. According the Trial Court, as per old
Hindu law, if any woman (widow) died issueless and had inherited the
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property from her husband, such property passed to the next heir of the
male from whom she inherited it, i.e., the brother of her husband.
3.10 The Trial Court held that the plaintiff has admitted in his cross-
examination that Chhaniben's brother-in-law, namely, Kavlabhai, who
happens to be the elder brother of her husband Jivlabhai, was alive at the
time of her death, since the reversioner of deceased Jivlabhai was alive at
the time of death of Chhaniben, the plaintiff, being her brother, had no
right to seek a declaration that he should be declared as the sole owner of
the suit property as per the rule of survivorship and has no right to
challenge the Will executed by Chhaniben. Yet, the plaintiff having found
in possession of one of the suit properties, namely, Block No.366;
therefore, the perpetual injunction was granted in favour of the plaintiff
and against the defendant, whereby the defendant was directed not to
obstruct the possession of the plaintiff qua the said suit property.
3.11 Feeling aggrieved and dissatisfied with the aforesaid judgment and
decree passed by the Trial Court, the plaintiff preferred the aforesaid
Regular Civil Appeal, wherein, after hearing the parties and upon re-
appreciation of the evidence and placing reliance upon some of the
provisions of the Act, 1956, the Appellate Court concerned dismissed the
appeal vide its impugned judgment and decree dated 24.06.2026.
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3.12 Thus, this present Second Appeal is filed against the concurrent
findings of fact recorded by the Courts below against the plaintiff.
SUBMISSIONS OF THE APPELLANT – PLAINTIFF .
4. Mr. N.V. Gandhi, learned advocate appearing for the appellant-
plaintiff, has made the following submissions: -
4.1 The Courts below have committed a serious error in law by placing
reliance upon the provisions of the Hindu Succession Act, 1956 (for
short, ‘ the Act, 1956 ’) or Hindu Law, while adjudicating the lis between
the parties. The deceased, Chhaniben, was a woman belonging to a
Scheduled Tribe and, as per Section 2(2) of the Act, 1956, the provisions
of the Act, 1956 are not applicable to Scheduled Tribe.
4.2 The judgment and decree passed by the Courts below are perverse
and grossly erroneous and require interference by this Court solely on the
ground that the issues decided by the Courts below are based on the
provisions of Hindu law, which are inapplicable to Scheduled Tribe.
4.3 The Courts below have completely lost sight of the fact that the
plaintiff, being the brother of Chhaniben, who died issueless, was the
only legal heir of Chhaniben who could inherit her property after her
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death as a rule of survivorship. Chhaniben had inherited the suit property
from her husband Jivlabhai, and since Jivlabhai and Chhaniben died
issueless, the plaintiff, being only surviving legal heir of Chhaniben, who
was not only residing along with her but was taking due care of her,
entitled to inherit her property.
4.4 The suit properties were restricted-tenure lands and, as per Section
73AA of the Gujarat Land Revenue Code, 1879 (for short, ‘the Code,
1879 ’), Chhaniben could not have bequeathed the suit property by way of
Will and, as such, the defendant has no right to receive the property by
way of her Will.
4.5 The Courts below have erroneously observed that, since the brother
of Jivlabhai, namely, Kavlabhai, was alive at the time of death of
Chhaniben, and had instituted Regular Civil Suit No. 46 of 1991 against
the plaintiff and the defendant, the plaintiff could not maintain the suit
seeking the relief of declaration and injunction. Kavlabhai was not a legal
heir of Chhaniben, unlike the plaintiff.
4.6 In support of his submissions, Mr. Gandhi, learned advocate,
would rely upon the decision of the Coordinate Bench of this Court in the
case of LH of Late Jashvantbhai Abhesingbhai Vasava & Ors. Vs.
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Jesingbhai Abhesingbhai Vasava & Ors . rendered in Second Appeal No.
113 of 2024 , dated 19.11.2024.
4.7 By making the above submissions, Mr. Gandhi, learned advocate,
would request this Court to admit this appeal on the substantial questions
of law framed in para-2 of the memo of appeal.
4.8 No other and further submissions are being made.
ANALYSIS AND REASONS.
5. The facts which are mentioned, at the outset, are not in dispute. It
appears that the plaintiff happens to be the brother of Chhaniben, but not
her real brother, as it came out from the evidence of the parties that
Chhaniben and the plaintiff were born of the same mother but different
fathers. It is also an undisputed fact that Chhaniben died issueless on
15.07.1991 and, prior thereto, her husband, namely, Jivlabhai
Chogdabhai, died in and around year 1958-59, thereby she had inherited
her husband’s properties, i.e., the suit properties.
5.1 The plaintiff admitted in his cross-examination that, at the time of
death of Chhaniben, the brother of her husband, namely Kavlabhai
Chogdabhai, who happens to be the elder brother of husband of
Chhaniben (Jivlabhai Chogdabhai), was alive. It further appears that,
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prior to her death, Chhaniben executed a registered Will in favour of the
defendant on 01.07.1991, wherein she referred the defendant as her
nephews. The defendant proved the Will by examined the witnesses to
Will, including the Registrar in whose office the Will was presented for
the registration. Whereas, the plaintiff failed to prove the execution of the
Will by Chhaniben in favour of his son, Raysangbhai, on 24.07.1972, as
no such Will was produced on record.
5.2 The name of the defendant appears to have been mutated in the
revenue record qua the suit properties which were bequeathed by
Chhaniben in favour of the defendant through the said Will. It also came
on record that said Kavlabhai (brother-in-law of Chhaniben) filed Regular
Civil Suit No. 46 of 1991 against the plaintiff and the defendant. Since
the parties to suit have not produced any final outcome of the said suit
before the Courts below, at this juncture, I would not like to observe
anything except to state that the brother-in-law of Chhaniben, namely
Kavlabhai, was alive at the time of her death.
5.3 It is true that the Trial Court recorded in para 9.2 of its judgment
that the parties belonging to a Scheduled Tribe (ST), whereby, as per
Section 2(2) of the Act, 1956, the provisions of the Act, 1956 are not
applicable to the parties. At the same time, it was also recorded by the
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Trial Court that the plaintiff has not pleaded that the parties are governed
by a particular custom which was prevailing in their community at the
time of death of Chhaniben. Rather, in the para-6 of the defendant No.1’s
affidavit in lieu of examination in chief, it was deposed that since their
community followed the Hindu tradition and as per tradition, Hindu
Succession Act applied to their community, accordingly, Chhaniben
became absolute owner of the suit properties. The Trial Court appears to
have taken note of the tenets of Old Hindu law while disbelieved the
claim of the plaintiff.
5.4 Thus, after appreciating the oral and documentary evidence on the
record, the Trial Court placed reliance upon old Hindu law to decide the
lis between the parties. Consequently, the Trial Court partly allowed the
suit in favour of the plaintiff. Since the plaintiff was found in possession
of one of the suit properties, i.e., Block No. 366 at Village Nogama,
Taluka - Mandvi, the decree of permanent injunction in his favour was
passed qua the said property. The Trial Court refused to grant the
declaration that Chhaniben had no right to execute the Will and that the
plaintiff was entitled to sole ownership under the rule of survivorship.
5.5 Whereas, the Appellate Court has taken note of Sections 14 to 16 and
30 of the Act, 1956 and, considering the aforesaid facts, and since the
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brother-in-law of Chhaniben, namely Kavlabhai, was alive to inherit her
property which was devolved upon her from her husband upon his death,
the Appellate Court found no merit in the plaintiff’s case. Thus, it
dismissed the appeal, thereby confirmed the judgment and decree passed
by the Trial Court.
6. The principal grievances of the appellant-plaintiff before this Court
are twofold; firstly that, despite noticed that the parties were belonging to
Scheduled Tribe and that, as per Section 2(2) of the Act, 1956, the
provisions of the said Act were not applicable to them, the Courts below
relied upon the provisions of old Hindu law as well as the Act, 1956, as
the case may be, and accordingly, committed a serious error in law in not
granting the declarations in favour of the plaintiff, as prayed for.
Secondly, that the suit properties being restricted-tenure lands, the bar
under Section 73AA of the Code, 1879 is attracted, and, in view of the
decision of this Court in the case of LH of Late Jashvantbhai
Abhesingbhai Vasava & Ors. (supra) , the defendant could not derive any
right, title, interest and/or occupy the suit land by virtue of the Will.
6.1 The arguments canvassed by Mr. Gandhi, learned advocate for the
plaintiff, noted above, at first blush look attractive, but, on deeper
scrutiny, they are required to be turned down for the following reasons.
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7. It is true that the provisions of the Act, 1956 are not applicable to
Scheduled Tribe communities as per Section 2(2) of the Act, 1956. At the
same time, the Court cannot be oblivious of the fact that, in the absence
of any custom of a particular tribe which prohibits a woman from
inheriting property from her husband and/or ancestor, the Court can
always believe that such woman has a right of inheritance.
7.1 The plaintiff had not specifically pleaded in the plaint and, as such,
he failed to lead any evidence to show that any custom prevailing in the
community of the parties (Tribal/Adivasi Chaudhari), whereby, in a case
like the present one, if a widowed sister dies issueless, her property which
was inherited by her from her husband passes only to her brother. Rather,
as noted above, in para-6 of the defendant No.1’s affidavit in lieu of
examination in chief, he deposed that since their community followed the
Hindu tradition and as per tradition, Hindu Succession Act applied to
their community, accordingly, Chhaniben became absolute owner of the
suit properties. Mr. Gandhi, learned advocate, has fairly conceded before
this Court during the course of his argument that no such evidence was
led before the Trial Court by the plaintiff.
7.2 Having noted above, none of the provisions of the Act, 1956 are
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applicable to the parties and in the absence of any such custom whereby
the plaintiff could seek a declaration that, as a rule of survivorship, he
should be declared the sole owner of the suit properties, being the brother
of Chhaniben, and non-applicability of the Act, 1956, the Court is bound
to adjudicate the lis on the principles of justice, equity and good
conscience.
7.3 It was not disputed by the plaintiff that the suit property was
inherited by Chhaniben from her husband. Chhaniben's husband,
Jivlabhai, was holding the suit land and had acquired by way of tenancy
rights and both died issueless.
7.4 At this stage, it would be profitable to refer to and rely upon the
recent past judgment of the Hon'ble Apex Court in the case of Ram
Charan and Ors. Vs. Sukhram and Ors. reported in AIR 2025 (Civil) SC
2363 , wherein in somewhat similar factual scenario and circumstances,
the Hon'ble Apex Court has observed and held thus:-
“ 3. The short question involved in this appeal is
whether a tribal woman (or her legal heirs) would be
entitled to an equal share in her ancestral property or
not . One would think that in this day and age, where great
strides have been made in realizing the constitutional goal of
equality, this Court would not need to intervene for equality
between the successors of a common ancestor and the same
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should be a given, irrespective of their biological differences,
but it is not so.
4. The facts lie in a narrow compass. The appellants-plaintiffs
are the legal heirs of one Dhaiya, a woman belonging to a
Scheduled Tribe. They sought partition of a property
belonging to their maternal grandfather, Bhajju alias Bhanjan
Gond. Their mother was one of the six children - five sons and
one daughter, stating that their mother is entitled to an equal
share in the scheduled property. The cause of action arose in
October 1992 when defendant Nos. 6 to 16 refused to make a
partition. The appellant-plaintiffs approached the Trial Court
seeking a declaration of title and partition of the suit property.
12. At the outset of our consideration, it is clarified that the
question of the parties having adopted Hindu customs and
way of life is no longer in play. That apart, we may also notice
Section 2(2) of the Hindu Succession Act, 1956, which
unequivocally excludes from its application, Scheduled Tribes.
It reads:
“ Section 2(2) : Notwithstanding anything contained
in sub-section (1), nothing contained in this Act shall
apply to the members of any Scheduled Tribe within the
meaning of clause (25) of article 366 of the Constitution
unless the Central Government, by notification in the
Official Gazette, otherwise directs.”
13. Since the Hindu Law has no application, the next
possibility to be considered is that of the application
of the custom. For the application of a custom to be
shown, it has to be proved, but it was not in the
present case . In fact, the Courts below proceeded, in our
view, with an assumption in mind and that assumption was
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misplaced. The point of inception regarding the discussion of
customs was at the exclusion stage, meaning thereby that they
assumed there to be an exclusionary custom in a place where
the daughters would not be entitled to any inheritance and
expected the appellant-plaintiffs to prove otherwise. An
alternate scenario was also possible where not exclusion, but
inclusion could have been presumed and the defendants then
could have been asked to show that women were not entitled to
inherit property. This patriarchal predisposition appears to be
an inference from Hindu law, which has no place in the
present case.
18. It is trite in law that this principle can be applied only
when there is a void or, in other words, in the absence of any
law governing that aspect. Since no custom to the effect that
women were entitled to the property, the application thereof
would be consistent with this position. What exactly this
phrase ‘justice, equity and good conscience’ entails has been
considered by this Court on a few occasions. We may refer to
certain instances:
nd
(a) In Niemla Textile Finishing Mills Ltd. v. 2 Punjab
Tribunal (AIR 1957 SC 329), it was held by a
Constitution Bench of this Court that this principle can
be applied even in the context of labour disputes, so long
as the law on the question in consideration is not
codified for there are many situations that arise in
everyday function, which, it is not possible for a
legislature to foresee and account for in the principal
legislation.
(b) The principle of ‘justice, equity and good conscience’
is not of recent application. As J.C. Shah, J.
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demonstrated the Courts, which functioned in the
former British Indian territory, were also equipped to
apply the said principle. See Superintendent and
Remembrancer of Legal Affairs v. Corpn. of Calcutta
(AIR 1967 SC 997).
(c) This principle found an extensive discussion in the
decision of a Constitution Bench of this Court in M.
Siddiq v. Suresh Das (2020) 1 SCC 1, (Ram
Janmabhoomi Temple), relevant extracts whereof are
as follows:
“ Justice, Equity and Good Conscience today
1019. With the development of statutory law and
judicial precedent, including the progressive
codification of customs in the Hindu Code and in the
Shariat Act, 1937, the need to place reliance on justice,
equity and good conscience gradually reduced. There is
(at least in theory) a reduced scope for the application
of justice, equity and good conscience when doctrinal
positions established under a statute cover factual
situations or where the principles underlying the system
of personal law in question can be definitively
ascertained. But even then, it would do disservice to
judicial craft to adopt a theory which excludes the
application of justice, equity and good conscience to
areas of law governed by statute. For the law develops
interstitially, as Judges work themselves in tandem
with statute law to arrive at just outcomes. Where the
rights of the parties are not governed by a particular
personal law, or where the personal law is silent or
incapable of being ascertained by a court, where a code
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has a lacuna, or where the source of law fails or
requires to be supplemented, justice, equity and good
conscience may properly be referred to.
…
1022. The common underlying thread is that justice,
good conscience and equity plays a supplementary role
in enabling courts to mould the relief to suit the
circumstances that present themselves before courts
with the principal purpose of ensuring a just outcome.
Where the existing statutory framework is inadequate
for courts to adjudicate upon the dispute before them, or
no settled judicial doctrine or custom can be availed of,
courts may legitimately take recourse to the principles
of justice, equity and good conscience to effectively and
fairly dispose of the case. A court cannot abdicate its
responsibility to decide a dispute over legal rights
merely because the facts of a case do not readily submit
themselves to the application of the letter of the existing
law. Courts in India have long availed of the principles
of justice, good conscience and equity to supplement the
incompleteness or inapplicability of the letter of the law
with the ground realities of legal disputes to do justice
between the parties. Equity, as an essential component
of justice, formed the final step in the just adjudication
of disputes. After taking recourse to legal principles
from varied legal systems, scholarly written work on
the subject, and the experience of the Bar and Bench, if
no decisive or just outcome could be reached, a Judge
may apply the principles of equity between the parties
to ensure that justice is done. This has often found form
in the power of the court to craft reliefs that are both
legally sustainable and just.”
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(Emphasis supplied)
(d) In Tirith Kumar (AIR 2025 SC 119) (supra ),
which was also an appeal arising from a judgment of
the High Court of Chhattisgarh, this Court speaking
through one of us (Sanjay Karol J.) had the occasion to
consider the application of this principle and in
accordance with it, the order of the High Court granting
right over the property to the female heirs was
confirmed.
19. When applying the principle of justice, equity and good
conscience, the Courts have to be mindful of the above and
apply this otherwise open-ended principle contextually . In the
present case, a woman or her successors, if the views
of the lower Court are upheld, would be denied a right
to property on the basis of the absence of a positive
assertion to such inheritance in custom. However,
customs too, like the law, cannot remain stuck in time
and others cannot be allowed to take refuge in
customs or hide behind them to deprive others of their
right.
20. Apart from the application of this general principle, we
also find this to be a question of violation of Article 14 of the
Constitution of India. There appears to be no rational nexus or
reasonable classification for only males to be granted
succession over the property of their forebears and not
women, more so in the case where no prohibition to such effect
can be shown to be prevalent as per law. Article 15(1) states
that the State shall not discriminate against any person on
grounds of religion, race, caste, sex or place of birth. This,
along with Articles 38 and 46, points to the collective ethos of
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the Constitution in ensuring that there is no discrimination
against women.
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.
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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. Pending
application(s), if any, shall stand disposed of.
(Emphasis supplied)
7.5 Thus, in view of the above exposition of law laid down by the
Hon'ble Apex Court, the Scheduled Tribe woman is entitled to inherit an
equal share in the property of her ancestor who died intestate. Applying
the aforesaid principle to the facts of the case, no gross error of law can
be found in the finding of the fact recorded by the Courts below that
Chhaniben inherited the suit property from her husband. Rather, it can be
safely held that, once Chhaniben inherited the suit property from her
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husband, it became her self-acquired property. In such circumstances, she
was not prohibited from executing the Will, inasmuch as no such custom
was brought to the notice of the Courts below and/or this Court by the
plaintiff, whereby she was prohibited to execute the Will of her property.
7.6 Apart from the aforesaid, it is an undisputed fact that the suit
properties were originally acquired by Chhaniben's husband and
Chhaniben, being the wife of Jivlabhai, inherited that properties, and both
died issueless. In such a situation, the disposition of her property would
be through execution of a Will or by the rule of survivorship if any
prevailed as per their custom which also prevented her from executing the
Will.
7.7 Since the execution of the Will dated 01.07.1991 by Chhaniben in
favour of the defendant is duly proved before the Trial Court and the
plaintiff has failed to prove that such Will was in any manner defective
and/or not proved in accordance with law, in this Second Appeal, this
Court would not like to disturb the finding of fact recorded by the Courts
below that the execution of the Will of Chhaniben in favour of the
defendant is duly proved.
7.8 Therefore, even if the provisions of the Act, 1956 are not
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applicable to the parties, as observed supra, Chhaniben was well within
her right to execute the Will. The effect of the Will in favour of the
defendant would be that the defendant derived the suit properties by
virtue of the Will and, as such, the name of the defendant was mutated in
the revenue records without any objection.
7.9 Furthermore, it has come on record and, as such, admitted by the
plaintiff that Chhaniben's brother-in-law, Kavlabhai Chogda, was alive,
who happens to be the elder brother of Chhaniben's husband, namely,
Jivlabhai. Since no custom was proved within Jivlabhai’s tribe regarding
the devolution of an issueless widow’s property passes only in favour of
her birth family, the plaintiff’s prayer for a declaration of sole ownership
under the doctrine of survivorship must fail. Rather, as per the tenets of
Hindu law (though not applicable), in a case like the present one, the
property of Chhaniben passes to the next heir of the male from whom she
inherited it, i.e., Kavlabhai (her brother-in-law). Since the said Kavlabhai
was not joined as a party to the suit, this issue does not warrant any
further deliberation. Nevertheless, the plaintiff cannot claim that, being
the brother of the deceased Chhaniben, he is the sole person entitled to
the ownership of the suit properties upon the death of his sister.
8. Thus, in view of the aforesaid, the first grievance of the plaintiff is
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unsustainable in law and correctly not entertained by the Courts below.
9. So far as second grievance of the plaintiff that the suit properties
being restricted-tenure lands, the bar under Section 73AA of the Code,
1879 is attracted, and the defendant could not derive any right, title,
interest and/or occupy the suit land by virtue of the Will. For the
foregoing reasons, such grievance is also devoid of merit.
9.1 First of all, the said grievance and or argument was never pressed
into service before the Courts below, and there is also nothing on record
to show that any revenue proceeding was initiated by the plaintiff as per
Section 73AA(3)(a) of the Code, 1879, before the Collector concerned.
Moreover, nothing was brought on record to show that even revenue
authority at given point of time suo motu initiated any inquiry/proceeding
against mutation of the revenue entry in favour of the defendant. In the
absence of any such material evidence on record, prima facie , at the stage
of the Second Appeal, the plaintiff cannot be allowed to raise such a new
plea.
9.2 Furthermore, the decision of this Court in the case of LH of Late
Jashvantbhai Abhesingbhai Vasava & Ors. (supra) is not applicable to
the case at hand, inasmuch as the defendant herein has neither filed any
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counter-claim nor sought any declaration that they should be declared as
owner by virtue of the execution of the Will by Chhaniben in their favour.
Whereas, in the cited case, the appellant therein, who happens to be a
plaintiff, went to the Court seeking a declaration that the plaintiff be
declared as the absolute owner and occupier of the suit property on the
basis of the Will executed by the deceased concerned in favour of the
plaintiff, and, in light of such fact, it was held that restricted property (as
per Section 73AA of the Code, 1879), cannot be transferred on the
strength of the Will. It was also observed that before claiming right over
the property, the plaintiff ought to have obtain the probate, which was not
obtained. Thus, in light of the said peculiar facts and circumstances, this
Court dismissed the second appeal.
9.3 Apart from the aforesaid, it came on record especially in the oral
evidence of the witness to the Will that preparation and execution of the
Will of Chhaniben, was at the instance of the original plaintiff, meaning
thereby, he was instrumental in process of the Will. Even assuming for
the time being that through Will, the suit land could not have been
transferred in favour of defendant as alleged, at least the plaintiff being
wrongdoer cannot later on cry-foul and allow to make a grievance that no
suit land could have been transferred by way of Will in favour of
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defendant, when no such objections raised by the revenue authorities by
mutating the name of defendant in the revenue record.
9.4 Without adding anything further on this, it can only be observed
that, in the absence of any initiation of any revenue proceedings either by
the plaintiff or suo motu by the Revenue Authority against mutation of
the name of the defendant in the revenue record on the strength of the
said Will of Chhaniben in relation to concerned the suit properties, now,
at this stage, in absence of any such issue raised before the Courts below,
the plaintiff cannot be allowed to raise a new plea, whereby claimed that
Chhaniben had no right to execute the Will in favour of the defendant and
or the defendant cannot be allowed to possess the suit properties by virtue
of the Chhaniben’s Will.
10. It is settled position of law that if the issue raised in the Second
Appeal is already decided by Hon'ble Apex Court and/or this Court, such
issue cannot be considered as a substantial question of law.
10.1 At this juncture, it is profitable to rely upon the Constitution Bench
decision of the Hon’ble Apex Court in the case of Sir Chunilal V. Mehta
And Sons Limited Versus Century Spinning And Manufacturing
Company Limited , reported in AIR 1962 SC 1314 : 1962 (0) AIJEL-SC
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5258 , where in para 3 and para 6, it has been held that:-
“3. The next question is whether the interpretation of a
document of the kind referred to above raises a substantial
question of law. For, Art. 133(1) provides that where the
judgment, decree or final order appealed, from affirms the
decision of the court immediately below in any case other
than a case referred to in sub-cl. (c) an appeal shall be to this
Court if the High Court certifies that the appeal involves some
substantial question of law. To the same effect are the
provisions of sec. 110 of the Code of Civil Procedure. In the old
Judicial Commissioner's Court of Oudh the view was taken
that a substantial question of law meant a question of general
importance. Following that view its successor, the Chief Court
of oudh, refused to grant a certificate to one Raghunath
Prasad Singh whose appeal it had dismissed. The appellant,
therefore, moved the Privy Council for special leave on the
ground that the appeal raised a substantial question of law.
The Privy Council granted special leave to the appellant and
while granting it made the following observation in their
judgment:
"Admittedly here the decision of the Court affirmed the
decision of the Court immediately below and, therefore,
the whole question turns upon whether there is a
substantial question of law. There seems to have been
some doubt, at any rate in the old court of Oudh, to
which the present court succeeded as to whether a
substantial question of law meant a question of general
importance. Their Lordships think it is quite clear-and
indeed it was conceded by Mr. De Gruyther-that that is
not the meaning but that "substantial question of law"
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is substantial question of law as between the parties in
the case involved."
Then their Lordships observed that as the case had occupied
the High Court for a very long time and on which a very
elaborate Judgement was delivered the appeal on its face
raised as between the parties a substantial question of law.
This case is reported in 54 Ind App 126 : AIR 1927 PC 110.
What is a substantial question of law as between the parties
would certainly depend upon the facts and circumstances of
every case. Thus, for instance, if a question of law had been
settled by the highest court of the country the question of law
however important or difficult it may have been regarded in
the past and however much it may affect any of the parties
would cease to be a substantial question of law. Nor, again,
would a question of law which is palpably absurd be a
substantial question of law as between the parties. The
Bombay High Court, however, in their earlier decision
already adverted to have not properly appreciated the test
laid down by the Privy Council for ascertaining what is a
substantial question of law. Apparently the Judgement of the
Privy Council was brought to their notice for, though they do
not make a direct reference to it, they have observed as
follows :
" The only guidance that we have had from the
Privy Council is that substantial question is not
necessarily a question which is of public
importance. It must be a substantial question
of law as between the parties in the case
involved. But here again it must not be
forgotten that what is contemplated, is not a
question of law alone; it must be a substantial
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question. One can define it negatively. For
instance, if there is a well established principle
of law and that principle is applied to a given
set of facts, that would certainly not be a
substantial question of law. Where the
question of law is not well settled or where
there is some doubt as to the principle of law
involved, it certainly would raise a substantial
question of law which would require a final
adjudication by the highest Court. "
One of the points which the learned judges of the Bombay
High Court had to consider in this case was whether the
question of the construction to be placed upon a decree was a
substantial question of law. The learned Judges said in their
Judgement that the decree was undoubtedly of a complicated
character but even so they refused to grant a certificate u/s.
110 of the Code of Civil Procedure for appeal to the Federal
Court because the construction which the Court was called
upon to place on the decree did not raise a substantial
question of law. They have observed that even though a
decree may be of a complicated character what the Court has
to do is to look at its various provisions and draw its
inference therefrom. Thus according to the learned
Judges merely because the inference to be drawn is
from a complicated decree no substantial question of
law would arise. Apparently in coming to this
conclusion they omitted to attach sufficient weight to
the view of the Privy Council that a question of law is
"a substantial question of law" when it affects the
rights of the parties to the proceeding. Further the
learned Judges seem to have taken the view that there should
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be a doubt in the mind of the Court as to the principle of law
involved and unless there is such doubt in its mind the
question of law decided by it cannot be said to be "a
substantial question of law" so as to entitle a party to a
certificate under S. 110 of the Code of Civil Procedure. It is
true that they have not said in so many words that such a
doubt must be entertained by the Court itself but that is what
we understand their Judgement to mean and in particular the
last sentence in the portion of their Judgement which we have
quoted above.
6. We are in general agreement with the view taken by the
Madras High Court and we think that while the view taken by
the Bombay High Court is rather narrow the one taken by the
former High Court of Nagpur is too wide. The proper test
for determining whether a question of law raised in
the case is substantial would, in our opinion, be
whether it is of general public importance or
whether it directly and, substantially affects the
rights of the parties and if so whether it is either an
open question in the sense that it is not finally,
settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for
discussion of alternative views. If the question is
settled by the highest Court or the general principles
to be applied in determining the question are well
settled and there is a mere question of applying those
principles or that the plea raised is palpably absurd
the question would not be a substantial question of
law.”
(Emphasis supplied)
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11. Thus, in view of the aforesaid pronouncement of law by the
Highest Court and after going through the substantial questions of law
proposed by the appellant in para-2 of this second appeal, in view of the
reasons supra, the same can hardly be treated as substantial questions of
law; rather, according to my view, they may be treated as questions of
law.
12. It is now a well-settled position of law that even if any erroneous
finding of fact recorded by the Courts below cannot be a ground to
interfere with such judgment and decree by this Court while exercising its
powers under Section 100 of the CPC, as the Second Appeal cannot be
entertained merely on question of law.
12.1 It is not out of place to refer to and rely upon the decision of the
Hon’ble Apex Court in the case of Jaichand (Dead) through Lrs and
Others v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864 ,
whereby, the Hon’ble Apex Court held as under:
“25. In Kshitisn Chandra Purkait v. Santhosh Kumar
Purkait reported in (1997) 5 S.C.C. 438) , this Court held
that in the Second Appeal, the High Court should be
satisfied that the case involves a substantial question of
law and not mere question of law.
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27. This Court in Kondira Dagadu Kadam v. Savitribai
Sopan Gujar reported in AIR 1999 S.C. 2213 held:-
“ The High Court cannot substitute its opinion for
the opinion of the first appellate Court unless it is
found that the conclusions drawn by the lower
appellate Court were erroneous being contrary to
the mandatory provisions of law applicable or its
settled position on the basis of pronouncements
made by the Apex Court, or was based upon
inadmissible evidence or arrived at without
evidence .”
28. It is thus clear that under Section 100, C.P.C., the High Court
cannot interfere with the findings of fact arrived at by the first
Appellate Court which is the final Court of facts except in such
cases where such findings were erroneous being contrary to the
mandatory provisions of law, or its settled position on the basis
of the pronouncement made by the Apex Court or based upon
inadmissible evidence or without evidence.”
(Emphasis supplied)
12.2 Even, recently also, the Hon'ble Apex Court in the case of Russi
Fisheries (P) Ltd. v. Bhavna Seth, reported in 2026 SCC OnLine SC
555, wherein it has been categorically held that this Court should not
interfere with finding of fact recorded by the Courts below unless it is so
perverse or grossly erroneous, and / or runs contrary to a settled
principles of law. The pertinent observations made in the said decision
read thus:
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“31. It is settled in law that the findings of fact howsoever
erroneous, cannot be reopened and disturbed in second
appeal which is required to be adjudicated only upon the
substantial question of law, if any, arising therein. Thus, the
argument that the High Court in second appeal ought to have
examined the evidence to ensure the correctness of the
findings of the First Appellate Court has no legs to stand and
fails.
32. Long back in 1981, three judges of this Court in the case of
Bholaram v. Ameerchand had ruled that even if
findings of facts by courts below are wrong or
grossly inexcusable that by itself would not entitle
the High Court to interfere under Section 100 CPC in
the absence of clear error of law . A similar view was
reiterated in Madhavan Nair v. Bhaskar Pillai (Dead)
by Lrs ., wherein it has been laid down that even if the First
Appellate Court commits an error in recording a finding of
fact, that itself will not be a ground for the High Court to
upset the same.
33. In Kashibai w/o Lachiram v. Parwatibai w/o
Lachiram , a similar proposition of law was laid down by
this Court and it was held that the High Court cannot
reappreciate the evidence and interfere with the findings of
facts unless a substantial question of law or a question of law
duly formulated is to be decided. The second appeal does not
lie on the ground of erroneous findings of facts based on
appreciation of the relevant evidence.
35. Again, in Kulwant Kaur v. Gurdial Singh Mann
(Dead) by Lrs , it was emphasized that the fact remains that
in a second appeal, a finding of fact, even if erroneous,
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will not be disturbed unless it is found that it stands
vitiated for want of perversity. No such case for
interference has been made out in the present case.”
(Emphasis supplied)
CONCLUSION .
13. In view of the foregoing observations, discussion and reasons, I am
of the considered opinion that deceased Chhaniben entitled to inherit the
property of her husband late Jivlabhai and having been inherited the suit
property, as a sole survivor of late Jivlabhai, she became absolute owner
of the suit property. In absence of any custom prevailing in the tribe of
deceased Chhaniben, whereby she was prevented to execute the Will,
according to me, deceased Chhaniben was entitled to execute the Will.
13.1 Since the execution of Will of deceased Chhaniben was duly
proved on record by the defendant and in absence of any perversity in the
finding of facts recorded by the Courts below in this regard, the plaintiff
cannot allow to claim the ownership over the suit property on the basis of
rule of survivorship, especially when Kavlabhai – brother-in-law of
deceased Chhaniben was alive at the time of her death, who was not
joined in the suit proceedings.
14. The concurrent findings and final conclusion recorded by the
Courts below cannot be said to be either perverse or grossly erroneous
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nor do they run contrary to the settled position of law declared by the
Hon’ble Apex Court. In such circumstances, no interference by this Court
is warranted under Section 100 of the CPC.
15. Before parting with the matter, I deem it necessary to observe that,
in order to prevent such type of disputes and conflicting claims arising
upon the death of a member of a Scheduled Tribe, it is imperative that the
State Government initiate necessary steps for the issuance of an
appropriate notification by the Central Government under Section 2(2) of
the Hindu Succession Act, 1956. Such a measure is essential to protect
the equal property rights of tribal women and to provide a clear
framework for the devolution of property of those dying intestate within
the State especially those tribe which are profess Hindu traditions.
16. The Registry shall send a copy of this judgment to the Office of the
Government Pleader, High Court of Gujarat, which, in turn, shall send it
to the concerned Department of the State of Gujarat for onward action, as
suggested supra, if they so desire.
17. In view of the foregoing conclusion, the present Second Appeal is
found to be meritless and, accordingly, it is hereby dismissed in limine .
The judgments and decree passed by the Courts below are hereby
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C/SA/500/2026 (GJHC240603442026) CAV JUDGMENT DATED: 11/09/2026
confirmed. There shall be no order as to costs. Decree shall be drawn
accordingly.
18. As a sequel, the Connected Civil Application for the stay also
stands disposed of.
Sd/-
(MAULIK J.SHELAT,J)
Lalji Desai
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