Tribal widow could bequeath inherited property absent proof of a custom barring it, Gujarat HC rules while dismissing brother’s claim of survivorship

Chhaniben, a Scheduled Tribe woman, was married to Jivlabhai, who died intestate and issueless around 1958–59. Chhaniben inherited the agricultural lands held by Jivlabhai as a tenant, and her name was mutated in the revenue records. Chhaniben subsequently executed a registered Will dated 1 July 1991 in favour of the defendant. She died issueless on 15 July 1991.

The plaintiff, claiming to be Chhaniben’s brother, instituted a suit in 2002 seeking a declaration that Chhaniben had no authority to execute the Will, a declaration of ownership based on an alleged tribal custom or rule of survivorship, possession, mesne profits, and injunction.

The Trial Court rejected the plaintiff’s claim of ownership and invalidity of the Will, but granted a limited injunction in respect of Block No. 366 because the plaintiff was found to be in possession.

The First Appellate Court dismissed the plaintiff’s appeal and confirmed the decree on 24 June 2026. The plaintiff thereafter preferred the present second appeal under Section 100 of the Code of Civil Procedure, 1908.

Whether, despite Section 2(2) of the Hindu Succession Act, 1956 excluding Scheduled Tribes from its operation, the plaintiff could claim ownership of Chhaniben’s property on the basis of an alleged custom or rule of survivorship?

Whether Chhaniben, having inherited the suit property from her husband, had the legal capacity to execute a Will in favour of the defendant?

Whether the registered Will dated 1 July 1991 was duly proved and could be relied upon to confer rights upon the defendant?

Whether Section 73AA of the Gujarat Land Revenue Code, 1879 barred the testamentary transfer of the restricted-tenure agricultural lands in favour of the defendant?

Whether the second appeal raised any substantial question of law warranting interference under Section 100 CPC?

Section 2(2) of the Hindu Succession Act, 1956 excludes Scheduled Tribes from the Act unless the Central Government issues a notification extending its application.

Where the statutory personal law does not apply, the party relying upon a special tribal custom must plead and prove that custom; in the absence of an established custom, courts may apply principles of justice, equity and good conscience.

Relying on Ram Charan v. Sukhram, AIR 2025 SC 2363, the Court held that gender-discriminatory succession cannot be presumed merely because no affirmative custom of female inheritance is proved; a contrary custom must also be demonstrated.

The Court further applied the principle that a person who inherits property from her husband and becomes its absolute owner may dispose of it by Will, unless a valid legal or customary restriction is established.

Under Section 100 CPC, interference in second appeal is permissible only where a substantial question of law arises; concurrent findings of fact cannot ordinarily be disturbed.

The Court relied on Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co. Ltd., AIR 1962 SC 1314, Jaichand v. Sahnulal, 2024 SCC OnLine SC 3864, and Russi Fisheries (P) Ltd. v. Bhavna Seth, 2026 SCC OnLine SC 555.

Section 73AA of the Gujarat Land Revenue Code was not considered at the second-appellate stage where the plea had not been raised before the courts below or pursued before the revenue authorities.

The Court held that the plaintiff neither pleaded nor proved any tribal custom under which an issueless widow’s property inherited from her husband devolved exclusively upon her brother or was governed by survivorship.

The fact that the Hindu Succession Act did not apply to the parties did not, by itself, establish the plaintiff’s alleged customary right.

Applying the principles in Ram Charan, the Court rejected any presumption that Chhaniben lacked inheritance rights or testamentary capacity merely because she belonged to a Scheduled Tribe.

Since Chhaniben had inherited the property from her husband, the Court treated it as her absolute property and found no proved custom restraining her from executing a Will.

The Will was registered and was proved through the attesting witnesses and the concerned Registrar; the plaintiff failed to establish any defect in its execution or proof.

The plaintiff’s reliance on Section 73AA was rejected because the plea was raised for the first time in the second appeal, no revenue proceedings had been initiated, and the precedent relied upon by him involved materially different circumstances.

The Court also noted that Kavlabhai, the brother of Chhaniben’s husband, was alive when Chhaniben died and had not been joined as a party, further undermining the plaintiff’s claim to exclusive ownership.

Consequently, no substantial question of law arose under Section 100 CPC.

In the absence of any proved custom restricting her testamentary power, she was competent to execute the registered Will dated 1 July 1991 in favour of the defendant, whose execution was duly proved.

The plaintiff was not entitled to claim the property by survivorship or to invalidate the Will.

Finding no substantial question of law, perversity, or legal error in the concurrent findings of the courts below, the Court dismissed the second appeal in limine and confirmed the judgments and decree below.

There was no order as to costs; the connected civil application for stay was disposed of.