Tribal daughter can't inherit property using Hindu law

The Supreme Court has ruled that inheritance laws for Scheduled Tribes (ST) are distinct and Hindu Succession Act, 1956 does not apply to ST members . This ruling by the Supreme Court overturned an order of the Himachal Pradesh High Court, which had held that daughters in the tribal regions of Himachal Pradesh would inherit property according to the Hindu Succession Act rather than tribal customary laws, aiming to avoid social injustice and exploitation.

The Himachal Pradesh High Court had said:

Paragraph 63: “63. The upshot of the appreciation of the evidence and the law discussed hereinabove is 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 laws must evolve with the times if societies are to progress. It is made clear by way of abundant precaution that the observations made hereinabove only pertain to right to inherit the property by the daughters under the Hindu Succession Act, 1956 and not any other privileges enjoined by the trial in the tribal areas.”

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The Supreme Court said that they have held in the case (2024) SCC OnLine SC 3810, titled “Tirith Kumar & Ors. vs. Daduram & Ors.” : -

“3. The parties to the present list claim to be Hindus and therefore ask that they be governed by Hindu law in matters of inheritance.

“20. …It was realised that in the Indian Society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Tribes and it was thought that some special provision ought to be made even for them. “

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The Supreme Court said that the high court has disallowed this contention on the ground that the parties are members of the Sawara tribe, which is a notified tribe under Article 342 of the Constitution of India. The constitutional position in regard to Articles 341 and 342, which deal with scheduled castes and tribes, respectively, has been delineated by a Constitution Bench of this Court in M.R. Balaji v. State of Mysore in the following terms:

The Supreme Court said that Article 34(1) provides for the issue of public notification specifying castes, races or tribes which shall, for the purposes of this Constitution, be deemed to be Scheduled Castes either in the State or the Union territory as the case may be. Similarly, Article 342 makes a provision for the issue of public notification in respect of Scheduled Tribes.

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Under Article 338(3), it is provided that references to the Scheduled Castes and Scheduled Tribes shall be construed as including references to such other Backward Classes as the President may, on receipt of the report of a commission appointed under Article 340(1) by order, specify and also to the Anglo-Indian community. It would thus be seen that this provision contemplates that some Backward Classes may by the Presidential order be included in Scheduled Castes and Tribes.”

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So, the Supreme Court said that it is clear from the aforesaid extracts of the judgements, that lists made under Articles 341 and 342 are to be amended only with the permission of the President.

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The Supreme Court said: “So, naturally, for a tribe to be notified as a scheduled tribe, a notification to that effect has to be issued and vice versa, i.e. for a tribe to be de-notified as well. The High Court noted that the parties did not produce any notification demonstrating that the Sawara tribe stands de-notified. There is no possibility of a different view on this question.”

The Supreme Court said that the Hindu Succession Act, 1956, at the very outset, details as to whom the legislation would apply, and it clearly states that scheduled castes and tribes shall be outside its purview of application.

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Section 2(2) of HSA thereof reads as under: “2. Application of Act.- (1) This Act applies- … (2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

The Supreme Court said: “The words of the Section are explicit. The HSA, 1956, cannot apply to scheduled tribes. This position of law is well settled.”

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The Supreme Court reproduced certain observations made in certain judgments:

6.1. In Madhu Kishwar v. State of Bihar , MM Punchhi, J as his Lordship then was, noted the application of Section 2(2) of HSA as follows:

• “4. …Sub-section (2) of Section 2 of the Hindu Succession Act significantly provides that nothing contained in the Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless otherwise directed by the Central Government by means of a notification in the Official Gazette.
• Section 3(2) further provides that in the Act, unless the context otherwise requires, words importing the masculine gender shall not be taken to include females. (emphasis supplied) General rule of legislative practice is that unless there is anything repugnant in the subject or context, words importing the masculine gender used in statutes are to be taken to include females.

The Supreme Court said that attention is to be drawn to Section 13 of the General Clauses Act. But in matters of succession the general rule of plurality would have to be applied with circumspection. The afore provision thus appears to have been inserted ex abundanti cautela. Even under Section 3 of the Indian Succession Act, the State Government is empowered to exempt any race, sect or tribe from the operation of the Act and the tribes of Mundas, Oraons, Santhals etc. in Bihar, who are included in the Supreme Court's concern, have been so exempted.

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Supreme Court said: "Thus neither the Hindu Succession Act, nor the Indian Succession Act, nor even the Shariat law is applicable to the custom-governed tribals. And custom, as is well recognized, varies from people to people and region to region.”

The aforesaid position was reiterated by a Bench of three learned judges in Ahmedabad Women Action Group (AWAG) v. Union of India:

“We find that the aforesaid position has been consistently adopted by the High Courts as well. Reference may be made to Bhuri v. Maroti, Bhagwati v. Cheduram12, and Bini B. (Dr.) v. Jayan P.R. Here only we may clarify that this reference to judgments of the High Courts shall not be construed as a comment upon their merits.”

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Supreme Court judgement
The Supreme Court said:

• Hence, more so, in view of the provisions of Section 2 of the Hindu Succession Act, 1956 no such directions extracted supra, could have been issued by the High Court, more so in a case where the issue was neither directly nor substantially involved in the intra-party appeal, arising out of the judgment and decree passed in a civil proceeding. Further, the directions issued by the High Court were not emanating from any one of the issues framed by the Court or pleas raised/agitated by the parties.
• In this view of the matter, paragraph 63 of the impugned judgment / order dated 23.06.2015 containing directions are set aside to be expunged from the record.
• The Civil Appeal is disposed of with the above directions. Pending application(s), if any, shall also stand disposed of.