- (1.) These two petitions under Article 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 clause in the Constitution. Petitioner 1 in the first writ petition is the editor of a magazine while petitioners 2 and 3 are two ladies of the 'ho' tribe, admittedly one of the Scheduled Tribes residing in Singhbhum district of Bihar. The petitioners in the other writ petition belong to the 'oraon' tribe of the Chhota Nagpur area. Challenge is essentially to S. 7 and 8 of the Chhota Nagpur Tenancy Act of 1908. S. 7 and 8 of the Act provide: "7.(1 Meaning of 'raiyat having khunt katti rights'. (1 'raiyat having khunt katti rights' means a raiyat in occupation of, or 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 member of the family which founded the village or a descendant in the male line of any member of such family: Provided that no raiyat shall be deemed to have khunt katti rights in any land unless he and all his predecessors-in-title 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 khunt kattidari tenancy before the commencement of this Act. 8. Meaning of Mundari khunt kattidar. 'mundari khunt kattidar' means a Mundari who has acquired a right to hold jungle land for the purpose of bringing suitable portions thereof under cultivation by himself or by male members of his family, and includes- (A) the heirs male in the male 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 continuously in the possession of any such Mundari and his descendants in the male line, such descendants. "
(2.) Reliance has been placed on a division bench decision of the Patna High court in the case of Jitmohan Singh Munda v. Ramratan Singh in support of the proposition that the Patna High court had more a 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 S. 8 also terminologically cannot 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 to the male in the male line of a Mundari. The word 'includes' 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 kattidari 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 S. is so definite as to exclude the inclusion of the widow of the deceased Mundari as a person who can hold the land during her lifetime. 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 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 late husband. Since the court below has accepted that the family has followed the Hindu rites and Hindu religion, the widow of Kartik Singh would be entitled to be in possession. S. 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 property during the lifetime of defendant 1, but he is entitled to a declaration that he will succeed after the death of the widow. "
(3.) The interpretation given of S. 8 in the division bench decision, therefore, does not provide full support to the point raised before us by the writ petitioners in the two cases. It was 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 thatthe family had adopted Hindu law and was not bound by its own caste custom.;