In Absence Of Custom, Court Can Always Believe Woman Has Inheritance Right: Gujarat High Court Upholds Tribal Widow's Will
The Bench dismissing the second appeal challenging concurrent findings, held that the property inherited by a scheduled tribe widow from her husband becomes her self-acquired property which she can freely bequeath.
Justice Maulik J. Shelat, Gujarat High Court
The Gujarat High Court has held that in the absence of any proven custom to the contrary within a Scheduled Tribe community, a court can presume that a tribal woman possesses a right of inheritance, and has accordingly upheld a registered Will executed by a tribal widow bequeathing agricultural land inherited from her deceased husband, rejecting her brother's claim to the property under a purported rule of survivorship.
Placing reliance on the Supreme Court's recent judgment in Ram Charan v. Sukhram and Ors. v. Sukhram and Ors. AIR 2025 (Civil) SC 2363, which held that denying a tribal woman a share in ancestral property merely because no custom expressly permits inheritance would violate Article 14 of the Constitution of India. It held that the deceased widow's property, having devolved upon her from her husband, became her self-acquired property which she was entitled to dispose of by Will, applying the principles of justice, equity and good conscience in the absence of any applicable statute or proven custom.
A Bench of Justice Maulik J. Shelat observed, “It is true that the provisions of the Act, 1956 are not applicable to Scheduled Tribe communities as per Section 2(2) of the Act, 1956. At the same time, the Court cannot be oblivious of the fact that, in the absence of any custom of a particular tribe which prohibits a woman from inheriting property from her husband and/or ancestor, the Court can always believe that such woman has a right of inheritance”.
Advocate N.V. Gandhi appeared for the appellants while none appeared for the respondents.
The appellants, legal heirs of the original plaintiff, contended that their predecessor was the brother of one Chhaniben, a woman belonging to the Chaudhari Scheduled Tribe, who had inherited agricultural land in tenancy from her husband Jivlabhai and died issueless in 1991.
Chhaniben had executed a registered Will on July 01, 1991 bequeathing the land to the respondent-defendant, whom she described as her nephew. The plaintiff instituted a suit in 2002 claiming that, as Chhaniben's brother, he was entitled to the property by a rule of survivorship, and that the Will in the defendant's favour was invalid, while also referring to an unproduced Will allegedly executed by Chhaniben in 1972 in favour of the plaintiff's own son.
The defendant contested the suit, asserting that the plaintiff was himself present when the Will was drawn up, and pointed out that Chhaniben's brother-in-law, Kavlabhai, the elder brother of her deceased husband, was alive at the time of her death and had separately sued both parties in 1991.
The Trial Court, by its judgment dated December 07, 2011, held that the Hindu Succession Act, 1956 did not apply to the parties by virtue of Section 2(2), but that the plaintiff had failed to prove any tribal custom entitling him to inherit by survivorship, and instead relied on old Hindu law principles to hold that the property would revert to the husband's family line, granting the plaintiff only a limited injunction over one plot he was found to be possessing.
This was upheld by the Third Additional District Judge, Surat, at Bardoli, by a judgment dated June 24, 2026, prompting the present second appeal on the ground that reliance on Hindu law provisions inapplicable to Scheduled Tribes vitiated the findings, and that the land, being restricted-tenure land under Section 73AA of the Gujarat Land Revenue Code, 1879, could not have been transferred by Will at all.
Examining the record, the Court found that the plaintiff had neither pleaded nor led evidence of any specific tribal custom governing inheritance by a widow's natal family, and that the defendant had duly proved execution of the Will through the attesting witnesses and the registering officer.
The Court further held that the plea concerning restricted-tenure land under Section 73AA was never raised before the courts below and could not be entertained for the first time in second appeal, and distinguished the precedent relied upon by the appellants since no revenue proceeding challenging the mutation had ever been initiated. Applying settled principles under Section 100 of the CPC that concurrent findings of fact, even if erroneous, cannot be disturbed absent perversity or a substantial question of law, the Court held that none of the questions raised met that threshold.
“…in view of the above exposition of law laid down by the Hon'ble Apex Court, the Scheduled Tribe woman is entitled to inherit an equal share in the property of her ancestor who died intestate. Applying the aforesaid principle to the facts of the case, no gross error of law can be found in the finding of the fact recorded by the Courts below that Chhaniben inherited the suit property from her husband. Rather, it can be safely held that, once Chhaniben inherited the suit property from her husband, it became her self-acquired property. In such circumstances, she was not prohibited from executing the Will, inasmuch as no such custom was brought to the notice of the Courts below and/or this Court by the plaintiff, whereby she was prohibited to execute the Will of her property”, it noted.
Before parting, the Court directed that a copy of the judgment be forwarded to the State Government, recommending that it initiate steps for a Central notification under Section 2(2) of the Hindu Succession Act, 1956 to provide a clear statutory framework for devolution of property among Scheduled Tribes professing Hindu traditions, particularly to protect the equal property rights of tribal women.
Cause Title: Ranchhodbhai Jesingbhai (Since Dead) through his Heirs and LRs & Ors. v. Anchhibhai Kavjibhai Chaudhari (Since Dead) through his Heirs and LRs & Ors. (Neutral Citation: 2026:GHC:57326)
Appearances:
Appellants: N.V. Gandhi, Advocate.