Holding

Exclusion of women from inheritance under Sections 7 and 8 of the Chhota Nagpur Tenancy Act is unconstitutional and the State must re‑examine the provisions to permit female succession while regulating it to prevent alienation of tribal property.

Summary

The petitioners, women belonging to the Ho and Oraon Scheduled Tribes of Chhota Nagpur, challenged Sections 7 and 8 of the Chhota Nagpur Tenancy Act, 1908, on the ground that restricting succession to the male line violated the equality guarantees of the Constitution. The State of Bihar set up a committee which reported that tribal custom excludes women from inheritance and that any change could cause unrest. The Supreme Court held that, although the State may regulate succession to preserve tribal cohesion, a blanket exclusion of women from inheritance is not constitutionally permissible. Consequently, the Court directed the State to re‑examine the feasibility of permitting female inheritance while ensuring that property does not leave the family, and adjourned the petitions for three months to receive a report. No final disposition on the merits was made; the matter was listed for further hearing.

Issues considered

Do Sections 7 and 8 of the Chhota Nagpur Tenancy Act, 1908, which confine succession to the male line, violate Articles 14, 15 and 32 of the Constitution?
Can the State justify the exclusion of women from inheritance on the basis of tribal custom?
Is the State required to amend the Act to allow female succession, and what regulatory safeguards are permissible?

Legislation cited

Chhota Nagpur Tenancy Act, 1908s. 7, s. 8
Constitution of Indias. Article 14, s. Article 15, s. Article 32

Subjects

gender discriminationsuccessiontribal lawequality clauseconstitutional challengeChhota Nagpur Tenancy Actscheduled tribesinheritancecustomlegislative amendment

Judgment

MADHU KISHWAR AND ORS. A
v•
..._,_,.
STATE OF BIHAR

OCTOBER 11, 1991

(RANGANATH MISRA, CJ. AND KULDIP SINGH, J.) B

Chhota Nagpur Tenancy Act, 1908:

S.s. 7, 8-Scheduled Tribes--Succession to property--Confined to
male in the male line-lnclusio11 of female heirs~ecessity for.
c
Chhota Nagpur Tenancy Act, 1908 confined succession to property
to descendants in the male line of Scheduled Tribes covered by the Act.

The petitioners who were the ladies belonging to the~Ho' and
'Oraon' Tribes of the Chhota Nagpur area contended that the provisions
of Sections 7 & 8 of the Act were discriminatory against women and, D
therefore, ultra vires the equality clause in the Constitution.
-... --<(

The Court at an earlier st.age while hearing one of the writ petitions,
gave time to the respondent-State of Bihar to consider the feasibility of
carrying out an amendment in the offending sections so as to clearly·
provide that successipn was not confined in the male line. In pursuance E
thereof, a Committee was set up by the State which came to the conclusion
that a custom prevailed among the Scheduled Tribes that a female heir be
'-{.
excluded from succession, and that if there was any change, and the
property be allowed to go into the hands of female heirs there would be
agitation and unrest. F
Adjourning the hearing of the petitions, this Court,

HELD: Scheduled Tribe people are as much citizens as others and·
they are entitled to the benefit of guarantees of the Constitution. It may be
that the law can provide reasonable regulation in the matter of succession G
--( to property with a view to maintaining cohesiveness in regard to Scheduled
Tribes and their properties. But exclusion from inheritance would not be
appropriate. Since this aspect of the matter was not examined by the State,
it should re-examine the feasibility of permitting inheritance and
simultaneously regulating such inheritance for the purpose of ensuring H
477
478 SUPREME COURT REPORTS [1991) SUPP. 1 S. C.R.

A that the property dQeS not go out of the family by way of. transfer or
otherwise. (480 H; 481 AB] ·

Jitmohan Singh Munda v• .Ramratan Singh & Anr., 1958 Bl.JR 373,
referred to.

B In the circumstances~ hearing of the matter be adjourned for three
months and the State of Bihar would immediately take into consideration
the order and undertake the exercise.indicated and report to the Court by
way of an affidavit, and along with that a copy of the report may be
furnished by the Committee to be set up by the State of Bihar. [481 8-C]

C ORIGINAL JURISDICTION: Writ Petition No. 5723of1987 & 219
of1986.

(Under Article 32 of the Constitution of India).

Mrs Pinky Anand and D.N. Goburdhan for the Petitioners.
D
B.B. Singh, Pramod Swarup, J~P. Verghese, LJ. Vadakare and Ms.
Kamini Jaiswal (N.P.) for the Respondents.

The following Order of the Court was delivered

E These two petitions under Art. 32 of the Constitution challenge the
provisions of the Chhota Nagpur Tenancy Act which confines succession'to
property to the male line by contending that the provision is discriminatory
against women and, therefore, ultra vires the equality claiise in the Con- -Y
stitution. Petitioner no. 1 in the first writ petition is the editor of a
magazine while petitioners nos. 2 and 3 are two ladies of the 'Ho' tribe,
F adrllittedly one of the scheduled tribes residing in Singhbhum district of
Bihar. The petitioners in the other writ petit.iQn belong to the 'Oraon' tribe
of the Chhota Nagpur area. Challenge is essentially to ss. 7 and 8 of the
Chhota Nagpur Tenancy Act. of 1908. Sections 7'an_d 8 of the Act provide:
"7.(1) Meaning of 'raiyat having khunt-khatti rights'. - "Raiyat
having khunt katti rights" means a raiyat in occupation of, or
G having any subsisting title to, land reclaimed from jungle by the
original founders of the village or their descendants in the male
line, when such raiyat is a.11Jember of the family which founded .
the village or a descendant in the male line of any memoer of
such family:
Provided that no raiyat shall be deemed to have khunt katti
H
MAOHU KISHWAR v. SI'ATE 479

rights in any land unless he and all his predecessors-in-title A
have held such land or obtained a title thereto by virtue of
inheritance from the original founders of the village.

(2) Nothing in this Act shall prejudicially affect the rights of
any person who has lawfully acquired a title to a kbunt kat-
tidari tenancy before the commencement of this Act. B
8, Meaning of Mundari Khunt-khattidar. - "Mundari khunt-
--(
kattidar" means a Mundari who bas acquired a right to hold
jungle land for the purpose of bringing suitable portions there- .
of under cultivation by himself or by male members of his fami-
ly, and includes- C
(a) the heirs male in the line of any such Mundari, when they
are in possession of such land or have any subsisting title
thereto; and -

(b) as regards any portions of such land which have remained D
continuously in the possession of any such Mundari and his
descendants in the male line, such descendants."

Reliance has been placed on a Division Bench decision of..the Patna
High court in the case of Jitmohan singh Munda v. Ramratll1l Singh & Anr.,
1958 BUR 373 in support of the proposition that the Patna High Court E
had more than 30 years back taken the view that the provision was not
operative and- a widow was also entitled to inherit. When analysed the
judgment of the Patna High Court does not seem to provide prop for the
argument raised in the writ petitions. In paragraph 4 of the judgment the
High Court indicated:

"The contention based on section. 8 also terminologically can- F
not be accepted in the first place, in defining khunt-kattidari
interest. As quoted above, the word used is "includes"
whereafter occur clauses (a) and (b) containing reference--rQ- --
the male in the male line of a Mundari. The word "inclli(Jes_" -
cannot be taken to be exhaustive. It only states that the heirs In
the male line alone are in the category of a Mundari khunt-kat-
G
tidari in their possession, but in implication it may well be that
the heirs of the deceased Mundari who are females will not be
entitled to succeed to it. That does not mean that the section is
so definite as to exclude the inclusion of the widow of the
deceased Mundari as a person who can hold the land. during H
480 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R.

A her life time. Moreover, clause (a) refers to the heirs male in
the male line. The word · "line" is also significant because it
evidently refers to a person who has descended from the
deceased Mundari whose interest may be in question. Even,
therefore, if these words "the heirs male in the male line" were
to be given exclusive meaning, then also it would mean only the
B persons who are descended from him or represent another
male line altogether. There is no reference whatsoever to the
exclusion of the widow of the particular Mundari. In my
opinion, the position in respect of the interest of the widow of
the deceased Mundari is the same in respect of this property as
it would be her position in regard to the other properties of her
c late husband. Since the court below has accepte~ that the fami-
ly has followed the Hindu rites and Hindu religion, the widow
of Kartik Singh would be entitled to be in possession. Section
8, as I have discussed, is not inconsistent with this position of
the widow and, as such, the court below took the correct view
in holding that the plaintiff could not recover possession of the
D property during the life time of defendant no. 1, but he is
entitled to a declaration that he will succeed after the death of
the widow."

The interpretatiQn given- of S. 8 in the Division Bench decision,
E therefore, does not provide full support to the point raised before us by the
. writ petitioners in the two cases. It~as a case confined to its own facts and ·
the Court proceeded to dispose of the case with reference to the widow by
bringing in the concept of Hindu law on the finding that the family had
adopted Hindu law and was not bound by its own caste custom.

At an earlier stage while one of thes~ writ petitions was heard we had
F give~ time fo the State of Bihar to consider the feasibility of carrying out an
amenqment in the offe~ding sections and to clearly provide that succession
was not confined to the male in the male line. A committee appears to have
been set up by the State of Bihar to examine this question and it has come
to the conclusion that by custom prevalent among the scheduled: tribes a
female heir is excluded from succession and in case the law was otherwise
G interpreted or changed and property was allowed to go into th~ hands of
female heirs, there would be great agitation and unrest in the area among the
scheduled tribe people who have custom-based living.

Scheduled tribe people are as much citizens as others and they are
H entitled to the benefit of guarantees of the ~onstitution. It may be that the
MAOHU KISHWAR v. SfATE 481
~· law can provide reasonable regulation in the matter of succession to A
property with a view to maintaining cohesiveness in regard to Scheduled
Tribes and their properties. But exclusion from inheritance would not be
appropriate. Since this aspect of the matter has not been examined by the
State of Bihar and the feasibility of permitting inheritance and simul-
' ;
taneously regulating such inheritance for the purpose of ensuring that the
property ~oes not go out of the family by way of transfer or otherwise we B
are of the view that in the peculiar facts of the case the State of Bihar
..-..( should re-examine the matter. In these circumstances, instead of disposing
of the two writ petitions by a final order we adjourn the hearing thereof for
three months and direct the State of Bihar to immediately take i!lto con·
sideration our order and undertake the exercise indicated and report to the
Court by way of an affidavit and along with that a copy of the report may be c
furnished by the Committee to be set up by the State of Bihar.
This matter shall not be considered as part-heard and shall be next
listed before a Bench where Justice Kuldip Singh is one of the members.

--, ..... R.P. Petitions adjourned.