KAMLA NETI (DEAD) THROUGH LRS.versusTHE SPECIAL LAND ACQUISITION OFFICER & ORS.

                         [2022] 18 S.C.R. 441                               441


             KAMLA NETI (DEAD) THROUGH LRS.                                 A
                                   v.
    THE SPECIAL LAND ACQUISITION OFFICER & ORS.
                   (Civil Appeal No. 6901 of 2022)
                        DECEMBER 09, 2022                                   B
         [M. R. SHAH AND KRISHNA MURARI, JJ.]
        Hindu Succession Act, 1956: s.2(2) – Non-applicability of the
provisions of the Act to the members of Scheduled Tribe – Appellant-
daughter of one of the coparceners claiming 1/5th share in the amount
                                                                            C
of compensation with respect to the land acquired by the State –
Compensation amount settled in favour of the other coparceners only
– Rejection of the claim of the appellant by the Reference Court since
the parties being Scheduled Tribe,the provisions of the Hindu
Succession Act not applicable– Upheld by the High Court– On appeal,
held: As per s. 2(2), the Act will not be applicable to the members of      D
the Scheduled Tribe, thus, the High Court rightly held that the appellant
cannot claim any right of survival – Though on equity, this Court
may be with the appellant however, when there is a conflict between
the law and equity, the law would prevail – Equity can only supplement
the law – There is a gap in it but it cannot supplant the law –If the
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claim of the appellant on the basis of the survivorship under the
1956 Act is accepted, in that case it would tantamount to amend the
law, which the court cannot do – Thus, in view of s.2(2) and the
appellant being a female member of the Scheduled Tribe is specifically
excluded, the appellant not entitled to any right of survivorship under
the provisions of 1956 Act – Furthermore, there may not be any              F
justification to deny the right of survivorship to the female member
of the tribal, when the daughter belonging to the non-tribal is entitled
to the equal share in the property of the father– Female tribal is
entitled to parity with male tribal in intestate succession– In view
thereof, issuance of directions to the Central Government to look
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into the matter and if required, to amend the provisions of the1956
Act by which the 1956 Act is not made applicable to the members of
the Scheduled Tribe.
      Madhu Kishwar & Ors. Versus State of Bihar & Ors.,
      (1996) 5 SCC 125 : [1996] 1 Suppl. SCR 442;
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                                  441
442            SUPREME COURT REPORTS                        [2022] 18 S.C.R.


A           Labishwar Manjhi vs. Pran Manjhi and Ors., (2000) 8
            SCC 587; B. Premananda and Ors. Vs. Mohan Koikal
            and Ors., (2011) 4 SCC 266 : [2011] 3 SCR 932; J.P.
            Bansal vs. State of Rajasthan & Anr. AIR (2003) SC
            1405 : [2003] 2 SCR 933; State of Jharkhand & Anr.
            Vs. Govind Singh, JT 2004 (10) SC 349 – referred to.
B
                              Case Law Reference
      [1996] 1 Suppl. SCR 442            referred to                 Para 3
      [2011] 3 SCR 932                   referred to                 Para 4.4
      [2003] 2 SCR 933                   referred to                 Para 4.4
C     (2000) 8 SCC 587                   referred to                 Para 4.4
      JT 2004 (10) SC 349        referred to           Para 4.4
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6901
      of 2022.
            From the Judgment and Order dated 07.10.2016 of the High Court
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      of Orissa at Cuttack in L.A.A. No. 79 of 2015.
            Dr. Janmejaya Ray, Aneesh Mittal, S. R. Sundaram, Gaurav Teotia,
      Ms. Sanjana Manchanda, Advs. for the Appellants.
            Dr. Kedarnath Tripathy, Ramendra Mohan Patnaik, Bhuwan Raj,
      Raghunath Pathak, Advs. for the Respondents.
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            The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
      and order passed by the High Court of Orissa at Cuttack in Land
F     Acquisition Appeal No.79 of 2015 by which the High Court has dismissed
      the said appeal preferred by the appellant herein and has confirmed the
      order passed by the learned Reference Court, the original applicant has
      preferred the present appeal.
             2. The dispute is with respect to the apportionment of the amount
      of compensation with respect to the land acquired. The land originally
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      stood recorded in the name of late Satyananda Negi a common ancestor
      of the appellant and the other coparceners. The said Satyananada died
      leaving behind his two sons namely Chakradhar and Gajadhar.
      Chakradhar died leaving behind his four sons namely Chintamani,
      Parakhita, Basudev and Kulamani and one daughter Kamla (the appellant
H     herein). Similarly, Gajadhar died leaving behind his two daughters namely
   KAMLA NETI (DEAD) THROUGH LRS. v. THE SPECIAL                               443
   LAND ACQUISITION OFFICER & ORS. [M. R. SHAH, J.]

Kumari and Kumudini. With respect to the land acquired, Khasra No.81,          A
Mouza Kopsingha which originally stood recorded in the name of late
Satyananda Negi, the amount of compensation was settled at
Rs.5,97,35,754/- in favour of the respondent nos. 2 to 5 herein i.e.
Kadamba Negi, Janhabi Negi, Basudev Negi, Lalita Negi and daughters
of Gajadhar i.e. Kumari Dhrua and Kumudini Majhi.
                                                                               B
      2.1 At the instance of the appellant claiming to be the daughter of
Chakradhar and claiming 1/5th share in the amount of compensation a
reference was made to the Reference Court under Section 30 of the
Land Acquisition Act. The Reference Court – the learned Senior Civil
Judge, Sundargarh rejected the claim of the appellant/share of the
appellant in the compensation, mainly on the ground that as the parties        C
belong to Scheduled Tribe Community, the provisions of the Hindu
Succession Act shall not be applicable and therefore the appellant being
a daughter shall not be entitled to the share in the amount of compensation.
The order passed by the learned Reference Court denying the share in
the amount of compensation has been confirmed by the High Court by             D
the impugned judgment and order. Hence, the present appeal against the
impugned judgment and order passed by the High Court.
       3. Learned counsel appearing on behalf of the appellant has heavily
relied upon the decision of this Court in the case of Madhu Kishwar &
Ors. Versus State of Bihar & Ors., (1996) 5 SCC 125 in support of              E
his submission that the appellant being a daughter shall be entitled to the
share in the amount of compensation even applying the provisions of the
Hindu Succession Act.
       3.1 It is vehemently submitted that as observed and held by this
Court denial of right to succession to Scheduled Tribe women would             F
amount to deprivation of the right to livelihood under Article 21 of the
Constitution of India. It is submitted that as observed and held by this
Court exclusive succession in the male line of heirs must remain in
suspended animation till the immediate female relatives of the last male
tenant continue to depend their livelihood on the land.
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      3.2 It is submitted that as observed and held by this Court in the
aforesaid decision, to deny the equal right to the women/daughter
belonging to Scheduled Tribe would be gender-based discrimination and
the daughter cannot be denied the right in the joint family property in
which all coparceners have the equal share.
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444             SUPREME COURT REPORTS                          [2022] 18 S.C.R.


A            Making the above submissions and relying upon above decision, it
      is prayed to allow the present appeal and to hold that the appellant being
      daughter of one of the coparceners shall be entitled to 1/5th share in the
      amount of compensation.
            4. Present appeal is vehemently opposed by Dr. Kedarnath
B     Tripathy, learned counsel appearing on behalf of the contesting
      respondents.
              4.1 It is submitted that in the present case the parties are members
      of the Scheduled Tribe. The suit land belongs to one Satyananda Negi
      and after his death, the said land devolved upon his two sons Chakradhar
C     and Gajadhar with the right of survivorship being available. The said
      Chakradhar passed away in the year 1948 before the commencement
      of Constitution of India and the Hindu Succession Act, 1954. That after
      the death of Chakradhar and his wife, his share in the property stood
      devolved upon his four sons who held 1/4th share each by way of
      succession. After more than 60 years of such succession by the four
D     sons holding 1/4th shares each, their properties were acquired by the
      Government for establishment of Ultra Mega Power Project at
      Bhedabahal, District Sundargarh. The compensation for the acquisition
      of land was determined and the same was duly paid to the four sons –
      respondents herein being the owners of the property. It is submitted that
E     thereafter the appellant herein filed an application before the L.A.O.,
      Sundargarh claiming their 1/5th share in the compensation being one of
      the descendants of the Satyananda Negi. That the matter was referred
      to the Court of Senior Civil Judge, Sundargarh in a matter of reference
      under Section 30 of the Land Acquisition Act made by the Special Land
      Acquisition Officer. The learned Reference Court dismissed the
F     application by holding that she is not entitled to claim any amount in the
      amount of compensation as being member of the Scheduled Tribe, the
      provisions of Hindu Succession Act shall not be applicable and therefore,
      she would not have any right of survivorship in the joint family property.
      It is submitted that considering the provisions of the Hindu Succession
G     Actmore particularly Section 2(2), the High Court has not committed
      any error.
             4.2 It is submitted that the appellant is not entitled to receive any
      share in the suit property by virtue of Section 8 of the Hindu Succession
      Act. It is submitted that her father Chakradhar passed away way back
H     in the year 1948 before the enactment of the Hindu Succession Act,
   KAMLA NETI (DEAD) THROUGH LRS. v. THE SPECIAL                              445
   LAND ACQUISITION OFFICER & ORS. [M. R. SHAH, J.]

1954 and even before the Constitution of India. It is submitted that apart    A
from the fact that in view of Section 2(2) of the Hindu Succession Act,
1954, the Hindu Succession Act, will not be applicable to the members
of the Scheduled Tribe, without any explicit clause in the Hindu Succession
Act, the Hindu Succession Act cannot be given a retrospective operation
to provide compensation to the appellant.
                                                                              B
      4.3 It is further submitted that as per Section 2(2) of the Hindu
Succession Act, the Act shall not be applicable to the members of the
Scheduled Tribe. It is submitted that in the case of Labishwar Manjhi
vs. Pran Manjhi and Ors., (2000) 8 SCC 587, it is clearly held that if
the members of the Scheduled Tribe follow customary and practices of
Hinduism, then and then only the Hindu Succession Act would be                C
applicable. It is submitted that in the present case there is no evidence
on record to prove that the parties have Hinduised. It is submitted
therefore Hindu Succession Act shall not be applicable to the parties
herein.
      4.4 It is further submitted that as held by this Court in a catena of   D
decisions whenever there is a conflict between the law and equity, the
law would prevail. Reliance is placed on the decision of this Court in the
case of B. Premananda and Ors. Vs. Mohan Koikal and Ors., (2011)
4 SCC 266. It is submitted that as observed and held by this Court in the
case of J.P. Bansal vs. State of Rajasthan & Anr. AIR (2003) SC               E
1405 and State of Jharkhand & Anr. Vs. Govind Singh, JT 2004
(10) SC 349, it is for the legislature to amend the law and not the Court.
       4.5 It is submitted that this Hon’ble Court on many occasions
denied extending the benefits of Hindu Succession Act to the tribal
communities unless the same has been notified by the Central                  F
Government. Reliance is placed on the observations made by this Court
in the case of Madhu Kishwar (supra).
          Making above submissions, it is prayed to dismiss the present
appeal.
      5. Heard learned counsel for the respective parties at length.          G
       6. 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       H
446             SUPREME COURT REPORTS                          [2022] 18 S.C.R.


A     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
B
      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
C     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. It is observed and held by
      this Court in the case of Mohan Koikal (supra) that when there is a
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      conflict between the law and equity, the law would prevail. Equity can
      only supplement the law. There is a gap in it but it cannot supplant the
      law.
            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
E     tantamount to amend the law. It is for the legislature to amend the law
      and not the Court.
             6.2 Now so far as the reliance placed upon the decision of this
      Court in the case of Madhu Kishwar (supra) by the learned counsel
      for the appellant is concerned, at the outset it is required to be noted that
F     by the majority decision this Court refused to strike down the provisions
      of Chota Nagpur Tenancy Act, 1908 which provided the succession to
      property in the male line of heirs and denying the right to Succession to
      the daughter, on the touchstone of Article 14. However, this Court read
      into the said provisions and observed and held that the intervening right
G     of female dependents/descendants under Sections 7 and 8 of the Act
      shall be carved out, by suspending the exclusive right of the male
      succession till the female dependent/descendent chooses other means
      of livelihood manifested by abandonment or release of the holding kept
      for the purpose. This Court by observing so disposed of the writ petition.
      However, by disposing the writ petition this Court issued direction to the
H
   KAMLA NETI (DEAD) THROUGH LRS. v. THE SPECIAL                                 447
   LAND ACQUISITION OFFICER & ORS. [M. R. SHAH, J.]

State of Bihar to comprehensively examine the question on the premise            A
of our constitutional ethos and the need voiced to amend the law.
       6.3 This Court also directed to examine the question of
recommending to the Central Government whether the Central
Government consider it just and necessary to withdraw the exemptions
given under the Hindu Succession Act and the Indian Succession Act in            B
so far as the applicability of these provisions to the Scheduled Tribes in
the State of Bihar is concerned.
       6.4 However, Mr. Justice K. Ramaswamy in his concurrent
judgment has further observed and held that the provisions of the Hindu
Succession Act and the Indian Succession Act would apply to the                  C
Scheduled Tribes, the general principles contained therein being consistent
with justice, equity, fairness, justness and good conscience would apply
to them. Thereafter it is held 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       D
Act, 1956, as amended and interpreted by this Court. However, it is
required to be noted that the same is minority view.
       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            E
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             F
justification to deny the right of survivorship so far as the female member
of the Tribal is concerned. When the daughter belonging to the non-
tribal 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.    G
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.                                           H
448              SUPREME COURT REPORTS                       [2022] 18 S.C.R.


A            7.2 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 Hindu
      Succession Act in so far as the applicability of the provisions of the
      Hindu Succession Act to the Scheduled Tribes and whether to bring a
      suitable amendment or not. We hope and trust that the Central Government
B
      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.

      Nidhi Jain                                                 Appeal dismissed.
C     (Assisted by : Shashwat Jain, LCRA)




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