Tirith Kumar vs Daduram

Court: Supreme Court
Case type: Civil Appeal
Decided on: 19-12-2024

<pre> REPORTABLE 

IN THE SUPREME COURT OF INDIA 
2024 INSC 1005
 
CIVIL APPELLATE JURISDICTION 
 
 
 
CIVIL APPEAL NO. 13516 OF 2024 
(Arising out of SLP (C) NO.21506/2019)
 
 
TIRITH KUMAR & ORS. … APPELLANTS 
 
VERSUS 
 
DADURAM & ORS. … RESPONDENTS 

 
J U D G M E N T 
 
 
SANJAY KAROL, J. 
 
THE CHALLENGE 

1. This appeal questions the correctness of the judgment and order passed by the
High Court of Chhattisgarh, Bilaspur, in Second Appeal No. 270 of 2003,
th
dated 6 February 2019 and it raises the question as to whether the Hindu
1
Succession Act, 1956 could be applied to the parties to the instant lis ? The
2
Courts below i.e. the First Appellate Court in Civil Appeal No.09A/2001 vide
th 3
judgment dated 27 January, 2003 and the Trial Court in Civil Suit No. 131A
th
of 1995, by judgment dated 16 December, 2000 found the appellants to be
Signature Not Verified
Digitally signed by Dr.
Naveen Rawal
Date: 2024.12.19
12:30:36 IST
Reason:

1
Hereinafter referred to as ‘HSA, 1956’.
2
The Court of Additional District Judge, Sakti, District Bilaspur.
3
The Court of Civil Judge Class-2, Sakti, District Bilaspur.
1 |SLP(C)No.21506/2019

‘sufficiently hinduised', having given up their customs as part of a tribal
community and therefore are governed by Hindu law, and thereby the
respondents herein do not have any rights over the property originally
belonging to Mardan.

BRIEF FACTS 
2. Brief facts as emanating from the record are:-
2.1 This dispute, at the heart of it, pertains to ownership of land
between two sides of the same family, with a common ancestor by the
name of Chuchrung. This common ancestor had two sons named Mardan
and Puni Ram. The sons and legal heirs of Puni Ram set the law in
motion, seeking a declaration that the suit property situated at village
Bagri Pali, measuring 13.95 acres bearing Khasra No. 26, belongs to
them and for a permanent injunction against the respondents.
2.2 The following is the family tree:
2 |SLP(C)No.21506/2019

2.3 The dispute came before the Court of Civil Judge Class-2, Sakti,
District Bilaspur, wherein six issues were framed. A perusal of the
judgment shows that questions 2 to 6 were questions of fact. It was held
as follows:
2.3.1 Relying on the testimony and cross-examination of PW1,
Anandram is now represented by the present appellants and also the
statement of DW1, Daduram, it was held that both the plaintiffs and
defendants “abide and follow the Hindu principles of law”.
2.3.2 The dispute regarding the death of Mardan was resolved
with the Court observing that he had indeed died prior to the coming
into force of the Hindu Succession Act, 1956. To return such a
finding, reliance was placed on the evidence of PW1, Ugrasen PW2
and Karamaha PW3. It was further stated that DW1 himself, in his
cross-examination, accepted such a fact.
2.3.3 Qua the possession of the suit property, it was held that post
the death of Mardan in 1951, Puni Ram, father of the plaintiff, took
possession. Any right possessed by Mardan would not have
transferred over to his daughters as prior to the HSA 1956, a
daughter does not receive any property upon the death of her father.
2.3.4 In conclusion, it was held that the defendants did not have
any right of ownership over the property, which originally belonged
3 |SLP(C)No.21506/2019

to Mardan and that the successors of Puni Ram had the right over
the said property. It was ordered that the defendants would not
interfere in the ownership of the plaintiffs.
2.4 The defendants, aggrieved by the findings summarised above,
appealed the judgment. The First Appellate Court agreed with the
findings arrived by the Court below in as much as that both parties did
indeed follow the Hindu Religion and that the death of Mardan was prior
to coming into force of the HSA, 1956, and as a result, the daughters of
Mardan had no right over the subject property.
2.5 Further aggrieved, the matter was carried to the High Court in
the Second Appeal. The substantial questions of law framed are as under:
1. Whether the parties follow the principle of Hindu Law and have
been following as on today?

2. Whether Mardan and Puni Ram in succession the property
which they had received and from the said property the income
which accrued from the same both Mardan and Puni Ram purchased
other property?
3. Whether the death of Mardan was done in the year 1951 since
then the property of Muni Ram in succession has received and at
present the Plaintiffs are in use, occupation and possession of the
said property?

4. Whether the defendants, in accordance with law, got their name
entered and are in use, occupation and possession?

5. Assistance and expenses

6. Whether Mardan died before coming into force the Hindu
Succession Act, 1956, in case yes and then the results?

4 |SLP(C)No.21506/2019

2.6 The reasoning of the High Court in overturning the findings
returned by the Courts below is that:
2.6.1 The Court noticed Section 2 (2) of the HSA, 1956 and the
judgment of this Court in Madhu Kishwar & Ors . v. State of 
4
Bihar , and held that HSA, 1956 does not apply to the parties as
they are Sawara, a notified scheduled tribe within the meaning of
Article 366(25), and there is no notification on record which de-
notifies them or directs the application of HSA, 1956 to them.
2.6.2 In regard to the question of whether the parties have become
sufficiently hinduised reference was made to Smt Butaki Bai & 
Ors. v. Sukhbati & Ors. In the present facts, it was held:
“The plaintiffs neither in the plaint nor in their evidence
particularised the prevalent tribal customs except pleadings
some ceremonies of marriage in their caste. It has neither been
pleaded nor proved that they have abandoned their law of
origin (customary law) and they have given up their
customary succession and did not state anything so as to be
governed by in their matter of succession and inheritance by
any school of hindu law…”

2.6.3 In the aforesaid backdrop, the Court invoked the Central
Provinces Laws Act, 1875 and in particular Sections 5 and 6 thereof.
Referring to the judgment of this Court in M.V. Elisabeth and 
Others v. Harwan Investments and Trading Pvt. Ltd. Hanoekar 
5
House, Swatontapeth, Vasco-De-Gama, Goa , as also certain other

4
(1996) 5 SCC 125
5
1993 Supp (2) SCC 433
5 |SLP(C)No.21506/2019

authorities, the Court invoked the principles of justice, equity and
good conscience to hold that the legal representatives of Mardan,
i.e. his daughters and their successors-in-interest, would be entitled
to half share in the total suit property. The appeal was partly allowed
in these terms.
2.7 It is with this background that the present appeal has come up for
consideration before this Court.
OUR CONSIDERATION
3. The parties to the present lis claim to be Hindus and therefore ask that they be
governed by Hindu law in matters of inheritance. The High Court has
disallowed this contention on the ground that the parties are members of the
Sawara tribe, which is a notified tribe under Article 342 of the Constitution of
India. The constitutional position in regard to Articles 341 and 342, which deal
with scheduled castes and tribes, respectively, has been delineated by a
6
Constitution Bench of this Court in M.R. Balaji v. State of Mysore in the
following terms:

“20. …It was realised that in the Indian Society there were other
classes of citizens who were equally, or may be somewhat less,
backward than the Scheduled Castes and Tribes and it was thought
that some special provision ought to be made even for them. Article
34(1) provides for the issue of public notification specifying the
castes, races or tribes which shall, for the purposes of this
Constitution, be deemed to be Scheduled Castes either in the State
or the Union territory as the case may be. Similarly Article 342
makes a provision for the issue of public notification in respect of
Scheduled Tribes. Under Article 338(3), it is provided that

6
1962 SCC OnLine SC 147
6 |SLP(C)No.21506/2019

references to the Scheduled Castes and Scheduled Tribes shall be
construed as including references to such other Backward Classes
as the President may, on receipt of the report of a commission
appointed under Article 340(1) by order, specify and also to the
Anglo-Indian community. It would thus be seen that this provision
contemplates that some Backward Classes may by the Presidential
order be included in Scheduled Castes and Tribes.”

7
We may also notice the observations in State of Maharashtra v. Milind in
this context:
“11. By virtue of powers vested under Articles 341 and 342 of the
Constitution of India, the President is empowered to issue public
notification for the first time specifying the castes, races or tribes or
part of or groups within castes, races, or tribes which shall, for the
purposes of the Constitution be deemed to be Scheduled Castes or
Scheduled Tribes in relation to a State or Union Territory, as the
case may be. The language and terms of Articles 341 and 342 are
identical. What is said in relation to Article 341 mutatis mutandis
applies to Article 342. The laudable object of the said articles is to
provide additional protection to the members of the Scheduled
Castes and Scheduled Tribes having regard to social and
educational backwardness from which they have been suffering
since a considerable length of time. The words “castes” or “tribes”
in the expression “Scheduled Castes” and “Scheduled Tribes” are
not used in the ordinary sense of the terms but are used in the sense
of the definitions contained in Articles 366(24) and 366(25). In this
view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe
only if they are included in the President's Orders issued under
Articles 341 and 342 for the purpose of the Constitution. Exercising
the powers vested in him, the President has issued the Constitution
(Scheduled Castes) Order, 1950 and the Constitution (Scheduled
Tribes) Order, 1950. Subsequently, some orders were issued under
the said articles in relation to Union Territories and other States and
there have been certain amendments in relation to Orders issued, by
amendment Acts passed by Parliament.”

(Emphasis supplied)

8
Recently, a seven-judge Bench in State of Punjab v. Davinder Singh also
made a reference to these judgments.

7
(2001) 1 SCC 4
8
2024 SCC OnLine SC 1860
7 |SLP(C)No.21506/2019

4. As is clear from the aforesaid extracts, the lists made under Articles 341 and
342 are to be amended only with the permission of the President. So, naturally,
for a tribe to be notified as a scheduled tribe, a notification to that effect has
to be issued and vice versa, i.e. for a tribe to be de-notified as well. The High
Court noted that the parties did not produce any notification demonstrating
that the Sawara tribe stands de-notified. There is no possibility of a different
view on this question.
5. The HSA, 1956, at the very outset, details as to whom the legislation would
apply, and it clearly states that scheduled castes and tribes shall be outside its
purview of application. Section 2(2) thereof reads as under:

“ 2. Application of Act.― (1)This Act applies―
…
(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.”

6. The words of the section are explicit. The HSA, 1956, cannot apply to
scheduled tribes. This position of law is well settled. We may reproduce with
profit the observations made in certain judgments of this Court.
9
6.1 In Madhu Kishwar v. State of Bihar , MM Punchhi, J as his
Lordship then was, noted the application of Section 2(2) of HSA as
follows:

“4. …Sub-section (2) of Section 2 of the Hindu Succession Act
significantly provides that nothing contained in the Act shall apply

9
(1996) 5 SCC 125
8 |SLP(C)No.21506/2019

to the members of any Scheduled Tribe within the meaning of
clause (25) of Article 366 of the Constitution unless otherwise
directed by the Central Government by means of a notification in
the Official Gazette. Section 3(2) further provides that in the Act,
unless the context otherwise requires, words importing the 
masculine gender shall not be taken to include females . (emphasis
supplied) General rule of legislative practice is that unless there is
anything repugnant in the subject or context, words importing the
masculine gender used in statutes are to be taken to include females.
Attention be drawn to Section 13 of the General Clauses Act. But
in matters of succession the general rule of plurality would have to
be applied with circumspection. The afore provision thus appears to
have been inserted ex abundanti cautela . Even under Section 3 of
the Indian Succession Act the State Government is empowered to
exempt any race, sect or tribe from the operation of the Act and the
tribes of Mundas, Oraons, Santhals etc. in the State of Bihar, who
are included in our concern, have been so exempted. Thus neither
the Hindu Succession Act, nor the Indian Succession Act, nor even
the Shariat law is applicable to the custom-governed tribals. And
custom, as is well recognized, varies from people to people and
region to region.”

The aforesaid position was reiterated by a Bench of three learned judges
10
in Ahmedabad Women Action Group (AWAG) v. Union of India .
6.2 We find that the aforesaid position has been consistently adopted
11
by the High Courts as well. Reference may be made to Bhuri v. Maroti ,
12 13
Bhagwati v. Cheduram , and Bini B. (Dr.) v. Jayan P.R. . Here only
we may clarify that this reference to judgments of the High Courts shall
not be construed as a comment upon their merits.

7. Therefore, the Courts below clearly erred on this count, and the High Court
took the correct view. Having observed this, the High Court then proceeded
to grant a portion as property to Mardan’s daughters and their descendants on

10
(1997) 3 SCC 573
11
2015 SCC OnLine Bom 3173
12
2019 SCC OnLine Chh 209
13
2015 SCC OnLine Ker 39489
9 |SLP(C)No.21506/2019

the grounds of justice, equity and good conscience, apparently but without
explicit mention, taking cue from the dissenting judgment Madhu Kishwar
( supra ) by Ramaswamy, J., wherein he held as under:

“ 38. Law is the manifestation of principles of justice, equity and
good conscience. Rule of law should establish a uniform pattern for
harmonious existence in a society where every individual would
exercise his rights to his best advantage to achieve excellence,
subject to protective discrimination. The best advantage of one
person could be the worst disadvantage to another. Law steps in to
iron out such creases and ensures equality of protection to
individuals as well as group liberties. Man's status is a creature of
substantive as well as procedural law to which legal incidents would
attach. Justice, equality and fraternity are trinity for social and
economic equality…

x x x

56. I would hold that the provisions of the Hindu Succession Act,
1956 and the Indian Succession Act, 1925 though in terms, would
not apply to the Scheduled Tribes, the general principles contained
therein being consistent with justice, equity, fairness, justness and
good conscience would apply to them. Accordingly I hold that the
Scheduled Tribe women would succeed to the estate of their parent,
brother, husband, as heirs by intestate succession and inherit the
property with equal share with the male heir with absolute rights as
per the general principles of the Hindu Succession Act, 1956, as
amended and interpreted by this Court and equally of the Indian
Succession Act to tribal Christians…”

8. Let us examine a few pronouncements on the application of principle of
justice, equity and good conscience.
14
8.1 In M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das ,
five learned judges extensively dealt with the concept of justice, equity
and good conscience. A few of the relevant paragraphs are as under:
“1003. …The modification of general rules to the circumstances of
the case is guided by equity, not in derogation or negation of

14
(2020) 1 SCC 1
10 |SLP(C)No.21506/2019

positive law, but in addition to it. It supplements positive law but
does not supplant it. In a second sense, however, where positive law
is silent as to the applicable legal principles, equity assumes a
primary role as the source of law itself. Equity steps in to fill the
gaps that exist in positive law. Thus, where no positive law is
discernible, courts turn to equity as a source of the applicable law.
In addition to these, Derrett notes that there is a third sense in which
equity or aequitas assumed importance — where established
political authority is taken away or is in doubt and the formal
sources of law are in doubt, the nature of judicial office requires a
decision in accordance with ex bono et aequo .

x x x x x

1019. …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 a 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 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.

x x x x x

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.”

(Emphasis supplied)

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8.2 In a case concerning the devolution of property either by custom
or by law, when it comes to a ‘dasi’, arising out of the State of
Madras, M.C. Mahajan, J., as his Lordship then was observed in
15
Saraswathi Ammal v. Jagadambal as follows:

“ 21. … In the absence of proof of existence of a custom governing
succession the decision of the case has to rest on the rules of justice,
equity and good conscience because admittedly no clear text of
Hindu law applies to such a case. The High Court thought that the
just rule to apply was one of propinquity to the case, according to
which the married and dasi daughters would take the mother's
property in equal shares. No exception can be taken to this finding
given by the High Court. No other rule was suggested to us leading
to a contrary result.”

8.3 In M.V. Elisabeth ( supra ), the Court held as under:
“ 86. The judicial power of this country, which is an aspect of
national sovereignty, is vested in the people and is articulated in the
provisions of the Constitution and the laws and is exercised by
courts empowered to exercise it. It is absurd to confine that power
to the provisions of imperial statutes of a bygone age. Access to
Court which is an important right vested in every citizen implies the
existence of the power of the Court to render justice according to
law. Where statute is silent and judicial intervention is required,
Courts strive to redress grievances according to what is perceived
to be principles of justice, equity and good conscience.”

9. Having considered the pronouncements of this Court as aforesaid, and
keeping in view the fact that Mardan passed away in the year 1951, that is,
prior to the enactment of HSA, 1956, we find no error in the judgment of the
High Court applying the provisions of the Central Provinces Laws Act, 1875
and more particularly Section 6 thereof which postulates the application of the

15
(1953) 1 SCC 362
12 |SLP(C)No.21506/2019

principle of justice, equity and good conscience, to account for possibilities
not covered by Section 5 of the Act.

16
10. We find that a coordinate Bench of this Court in Kamla Neti v. LAO , held
in para 11 thereof that equity cannot supplant the law, and when the law is
clear, the same has to be applied. That case pertains to the division of
compensation awarded for land acquired, however, the present dispute
pertains directly to succession of property, and therefore in our considered
view, this case stands on a different footing.
11. Kamla Neti ( supra ) is, therefore, distinguishable on facts and not applicable
to the present case. However, the recommendation/suggestion made therein to
the Central Government to look into pathways to secure the right of
survivorship to female tribals is hereby reiterated. For emphasis, the
observations in this regard are also extracted herein below:

“ 17. Before parting, we may observe that there may not be any
justification to deny the right of survivorship so far as the female
member of the tribal community is concerned. When the daughter
belonging to the non-tribal community is entitled to the equal share
in the property of the father, there is no reason to deny such right to
the daughter of the Tribal community. Female tribal is entitled to
parity with male tribal in intestate succession. To deny the equal
right to the daughter belonging to the tribal even after a period of
70 years of the Constitution of India under which right to equality
is guaranteed, it is high time for the Central Government to look
into the matter and if required, to amend the provisions of the Hindu
Succession Act by which the Hindu Succession Act is not made
applicable to the members of the Scheduled Tribe.

18. Therefore, though we dismiss the present appeal, it is directed
to examine the question by the Central Government to consider it
just and necessary to withdraw the exemptions provided under the

16
(2023) 3 SCC 528

13 |SLP(C)No.21506/2019

Hindu Succession Act insofar as the applicability of the provisions
of the Hindu Succession Act to the Scheduled Tribes is concerned
and whether to bring a suitable amendment or not. We hope and
trust that the Central Government will look into the matter and take
an appropriate decision taking into consideration the right to
equality guaranteed under Articles 14 and 21 of the Constitution of
India.”

12. With the aforesaid observations, the appeal is dismissed as bereft of merit.
Pending applications, if any, shall stand disposed of.

......…………………J. 
(C.T. RAVIKUMAR) 
 
 
 
......……...…………J. 
(SANJAY KAROL) 

th
Date: 19 December, 2024; 
Place: New Delhi.
14 |SLP(C)No.21506/2019
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