Whether occupancies of persons belonging to Scheduled Tribe can be transferred another tribal without previous sanction of the Collector?

The proviso to Section 36A(1) to which the Petitioners have invited attention, deals with the procedure to be followed by the Collector while permitting a transfer by a tribal to non-tribal. The said proviso requires the Collector to find out whether any tribal residing in the village or within 5 kms. thereof is prepared to take such occupancy from owner on lease, mortgage or by sale or otherwise. It is, therefore, apparent that the Legislature has intended that when Tribal is selling or transferring his property to non-tribal, before granting permission to such transfer, attempt should be made to find out whether any other tribal in the village is ready and willing to have it. Again as is apparent, this proviso is not applicable in present matter. Section 36A no doubt begins with non obstante clause but then it excludes Section 36(1). It does not in any way exclude operation of Section 36(2). Section 36(1) declares all occupancies to be heritable and transferable subject to restrictions imposed thereupon and Section 36A is one such restriction imposed upon tribal and non tribal. Section 36(2) speaks of a transfer by Tribal and it does not specify the category or nature of purchaser. Thus, all transfers by a tribal have to be with previous sanction of the Collector. Section 36A(1), therefore, has got no bearing on said provision or its effect. The overriding effect given to Section 36A(1) by the Legislature is only to the extent stipulated above i.e. it provides a category of transfers to which provisions of Section 36(1) and deeming fiction therein will not apply. The said position, therefore, does not help present Petitioners in any way. As special provision has been made in Section 36A to regulate transfer by a tribal to non-tribal, proviso of Section 36(2) exempts such transfers made after 6-7-1974 from Section 36(2). All provisions are consistent with each other and provide a complete code for protecting interests of tribals. None of them can be stretched to exempt any transfer made by a tribal in favour of anybody including other tribal also.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 905 of 2000

Decided On: 06.10.2010

Tulsiram Adku Marape and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

B.P. Dharmadhikari, J.

Citation: MANU/MH/1795/2010,2011(1) MHLJ 182.

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Whether daughter of tribal person is entitled to get right in ancestral property by survivorship as per The Hindu Succession Act?

A short question which is posed for consideration of this Court is whether the appellant/petitioner being the daughter is entitled to the share in the compensation with respect to the land acquired, on survivorship basis under the provisions of Hindu Succession Act? At the outset, it is required to be noted that the appellant belongs to tribal community and is a member of Scheduled Tribe. As per Section 2(2) of the Hindu Succession Act, the Hindu Succession Act will not be applicable to the members of the Scheduled Tribe. Therefore, as such as rightly observed by the High Court the appellant cannot claim any right of survival under the provisions of the Hindu Succession Act.

Therefore, so long as Section 2(2) of the Hindu Succession Act stands and there is no amendment, the parties shall be governed by the provisions of Section 2(2) of the Hindu Succession Act. Therefore, though on equity we may be with the appellant being daughter and more than approximately 70 years have passed after the enactment of the Hindu Succession Act and much water has flown thereafter and though we are prima facie of the opinion that not to grant the benefit of survivorship to the daughter in the property of the father can be said to be bad in law and cannot be justified in the present scenario, unless Section 2(2) of the Hindu Succession Act is amended, the parties being member of the Scheduled Tribe are governed by Section

2(2) of the Hindu Succession Act.  {Para 6}

6.1 If the claim of the appellant on the basis of the survivorship

under the Hindu Succession Act is accepted in that case it would

tantamount to amend the law. It is for the legislature to amend the law and not the Court.

7. Under the circumstances in view of Section 2(2) of Hindu

Succession Act and the appellant being the member of the Scheduled Tribe and as the female member of the Scheduled Tribe is specifically excluded, the appellant is not entitled to any right of survivorship under the provisions of Hindu Succession Act. No error has been committed by the High Court. The appeal therefore deserves to be dismissed and is accordingly dismissed.

7.1 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 is concerned. When the daughter belonging to the nontribal 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.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6901 OF 2022

Kamla Neti (Dead) through LRs  Vs The Special Land Acquisition

Officer & Ors.

Author: M.R. SHAH, J.

Dated: December 9, 2022.

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Whether a tribal can sale his land to tribal without permission of collector?

 While the previous approval of the State Government is not

contemplated if the transfer is between tribal and tribal or if the

transfer is between tribal and non-tribal and is by lease, or mortgage for period not exceeding five years, the previous sanction of the Collector is a must.

In the teeth of the provisions of Section 36(2) of the Code, which

do not make any distinction based on the status of the purchaser or transferee, it is not possible to accept the submission that if the transfer is between tribal and tribal, the previous sanction of the Collector shall not be necessary. Such submission militates against the plain language of the statutory provisions and if accepted will be destructive of the legislative intent which is to protect the tribals from exploitation.

The fact that the transferee is also a tribal does not necessarily

eliminate the possibility that the transferer tribal may be exploited or may be at the receiving end of the bargain. The Legislature has in its wisdom not exempted tribal to tribal transfer from the requirement of previous sanction from the Collector. Presumably, the Legislature was conscious of the fact that a tribal is vulnerable and could possibly be exploited or induced to part with the agricultural land even by a fellow tribal who is in a more dominating position in life. It is precisely to prevent such exploitation that the previous sanction of the Collector is statutorily mandated. {para 14}

15. I see no error in the view taken concurrently by the Tahsildar and the Additional Collector. The view is consistent with the legislative mandate.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 1556 OF 2022

Vijay Anandrao Moghe  Vs  The Additional Collector/Sub-Divisional Officer, 

CORAM : ROHIT B. DEO, J.

DATED : 11 th APRIL, 20 22

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Whether court can grant decree for specific performance of contract if land is to be transferred from tribal to non-tribal?

After carefully considering the facts of the present case and the arguments advanced in the light of the aforesaid case law, it is crystal clear that, in case of a land of tribal, the permission of Collector with or without the approval of the Government as required u/s. 36A is mandatory before entering into even agreement to sell wherein the possession is agreed to be transferred or is transferred under such agreement. If without prior sanction there is transfer of possession by tribal to a non-tribal under agreement to sell, it is void ab initio. In other matters, the permission is required for execution of only sale deed. The permission required for transfer of land of tribal cannot be equated with the permissions or sanction required for execution of sale deed under other Acts. The facts disclose that, the defendant, a tribal, transferred by agreement to sell his land in the year 2001 and delivered possession in the year 2003, which was a transaction contrary to the directive principles, the national goal and the prohibition u/s. 36A of MLRC. There are provisions which casts obligation on the Collector to restore the land to the tribal and also to see that the land is used only for the benefit of the tribals. In the situation, the arguments of Mr. V.R. Dhorde that a decree for specific performance can be granted subject to conditions obtaining sanction from the Collector u/s. 36A cannot be accepted. It will be not only contrary to the spirit of National Goal and the public policy of upliftment of weaker class of tribal set, it will also some sort of recognition to the illegal transfer which is void ab initio for which there are provisions for restoration of earlier status. In addition, it will put some pressure on the authorities of the fact that, the courts have approved the transaction and requested them only to consider whether sanction should be granted or not. Such a course is not permissible. The ld. appellate Court has given sound, elaborate reasons and both the courts below have committed no error in refusing the decree for specific performance of the contract.

15. I may further say that, in such a suit, the discretion under Section 20 of Specific Performance Act also could not have been exercised in favour of the grant of specific performance. In the result, the substantial question of law is answered in the negative.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 118 of 2018

Decided On: 17.12.2018

 Babasaheb Vs.  Radhu Vithoba Barde

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: AIR 2019 Bom 49

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