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 tribal women can inherit property as per Hindu succession Act 1956?

In a landmark judgment, single bench of Rajiv Sharma J., while dealing with an important issue of inheritance of property by daughters in the tribal areas in Himachal Pradesh, held that daughters in the tribal areas in the State of Himachal Pradesh shall inherit the property in accordance with the Hindu Succession Act, 1956 and not as per customs and usages in order to prevent the women from social injustice and prevention of all forms of exploitation. The Court further stated that custom amongst Gaddi caste has not been recognized consistently by the courts and thus has not passed into law of land and the appellant in the instant case has also failed to prove that the custom prevailing in the area where the parties resided was ancient, invariable and unbroken custom and the same has not been judicially noticed by the court consistently.

According to the facts, the appellant instituted a suit for declaration against the respondents. Rasalu, who was Gaddi belonging to the Scheduled Tribe category was the father of the appellant and respondent and suit land was previously owned and possessed by him. There was a custom amongst the Gaddies that the daughters do not inherit the property of their father after his death.

The Court also observed that the women have to be advanced socially and economically to bestow upon them dignity, especially the daughters in a society, who are Hindu, cannot be left and segregated from main stream. Adding further, the Court said that “they are entitled to equal share in the property. Needless to add that gender discrimination violates Fundamental Rights”. The Court in order to reach a decision referred to a catena of cases. The Court also made it clear that the observations made in the present case only pertain to right of the daughters to inherit property under the Hindu Succession Act, 1956 and not any other privileges enjoined by the tribal in the tribal areas.

High Court Of Himanchal Pradesh

Decided on June 23,2015

BAHADUR Vs   BRATIYA AND ORS.

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