R.N. Misra, J.
1. The defendant is the appellant. The plaintiffs filed a suit for partition of immovable properties contained in Kha and Ga schedules and of movables under Gha schedule and claimed that they were entitled to half share in the said properties. The relationship of the parties can be found out from the genealogy appended below:--
Dalu (dead) Dasarath
= widow Gura (P.1) (defendant)
= widow Asan (P.2)
2. The plaintiffs claimed that the Immovable properties were the separate properties of Dutia and Dutia having died 3 or 4 years prior to the institution of the suit and the plaintiff No. 1 being the widow of the pre-deceased son and the plaintiff No. 2 the widow of the predeceased grandson of Dutia, both of whom became widows after the commencement of the Hindu Women's Right to Property Act, they are entitled to half share in the property equal to the share that Dalu was entitled to in the property.
3. In the written statement the plaintiff's claim that the property was the separate property of Dutia was disputed. Existence of the movables as alleged was also disputed and it was claimed that whatever movables existed were brought by the wife of the defendant at the time of marriage. In the trial court no specific plea was taken on the ground that the parties were not Hindus or that they were members of the scheduled tribe who were ordinarily not governed by Hindu Law and until the plaintiffs established that the parties became Hinduised and had adopted Hindu Law they could not take advantage of either the Hindu Women's Right to Property Act (hereinafter called the 1937 Act) or of the Hindu Succession Act.
4. The learned trial Judge on a consideration of the evidence placed before him came to hold that the plaintiffs were entitled to half share in the immovable properties covered by Kha and Ga schedules. Coming to the movables, he found that certain items did not exist; but in respect of the remainder that he found to be existing, he gave a decree to the plaintiffs to the extent of a moiety share. Aggrieved by this preliminary decree the defendant is in appeal before this Court.
5. Mr. Patnaik, learned counsel for the defendant-appellant has raised four contentions in this appeal. They are (1) the parties are Bathudi by caste which has been declared to be one of the scheduled tribes. As such, they are not governed by Hindu Law and the plaintiffs are not entitled to claim on the basis of the 1937 Act. In support of his contention Mr. Patnaik relies upon the Constitution (Scheduled Tribes) Order, 1950, where under item No. 4 in relation to the State of Orissa. Bathudis have been declared to be members of the scheduled tribe; (2) conceding that the 1937 Act applies according to Mr. Patnaik, the plaintiff No. 1 would not be entitled to a share because even on the finding recorded by the learned trial judge, she must be taken to have become a widow prior to the extension of the 1937 Act to the ex-State of Keonihar. It has been found by the trial court that the Act got extended to that ex-State area in 1948 and that finding is not assailed in appeal. Mr. Patnaik therefore contends that on that finding it must be taken that the plaintiff No. 1 was virtually a pre-Act widow and she would not, therefore, be entitled to any share. It is contended that Panchu's widow (plaintiff No. 2) alone would be entitled to a share in the property in Kha and Ga schedules equal to the interest her husband had therein at the time of his death after the extension of the 1937 Act to the ex-State areas of Keonjhar. Section 3 of the 1937 Act provides:--
'(1) When a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow or if there is more than one widow, all his widows together shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son;
Provided that the widow of a predeceased son shall inherit in the like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son.'
Thus Panchu's share in the property would have been only l/3rd and under the law Panchu's widow would succeed to the interest that Panchu would have had. That share in the property would work out to be only l/3rd. The learned trial Judge went wrong, Mr. Patnaik contends, in decreeing the plaintiff's claim on moiety basis. According to Mr. Patnaik, even if all his other contentions are repelled, the plaintiff No. 2 alone would be entitled to a decree for l/3rd in these two schedules of property; (3) The third contention of Mr. Patnaik is that the Hat-Chitha entries upon which the trial court has placed reliance for ascertaining the dates of death of Dalu, Panchu and Dutia do not satisfy the requirement of law and at any rate, the learned trial Judge went wrong in admitting the entries into evidence as they are not incorporated in a regular book; (4) His fourth contention is that though there was a serious dispute about the existence of the various items of movables included in the Gha schedule and the defendant had contended that whatever movables were available were brought by his wife at the time of their marriage, the learned trial judge overlooked the denial of the defendant about the existence of various items of movables and proceeded on the basis that there was an admission of the existence of the items but there was a dispute about the plaintiff's share therein-If the learned trial Judge had enquired into the very existence of the properties under Gha Schedule, it is contended by Mr. Patnaik he would have certainly come to hold that there was paucity of evidence on the plaintiff's side to establish the existence of the items themselves.
6. Now I shall proceed to examine each of the contentions raised by Mr. Patnaik. Coming to the first point the dispute on this score does not appear to have been specifically raised in the pleadings. Even the memorandum of appeal presented before this Court did not contain a ground on this aspect. Leave of the Court was asked for to raise a dispute on this question later on and only recently, a direction was given that the question of admission of the additional ground would be taken into consideration at the hearing. If a dispute had been raised at the right point of time, more of facts could have been placed before the Court.
7. Mr. Patnaik proceeds on the basis that in view of the fact that Bathudis have been indicated as members of the scheduled tribe in the 1950 Order already referred to, the burden lay on the plaintiffs to prove that they had become Hinduised and had adopted Hindu Law. In support of his contention, he relies upon a decision of a Division Bench of the Patna High Court reported in the case of Chunku Manjhi v. Bhabani Majhan, AIR 1946 Pat 218, In that very decision it has been indicated that whether parties were aborigines who had adopted Hindu Law as their personal law is a dispute involving mixed questions of fact and law. If such a dispute had specifically been raised in the trial court, certainly the plaintiffs would not have been prejudiced. To non-suit them by accepting the contention of Mr. Patnaik at the first appellate stage in the facts of the present case would be certainly taking the plaintiffs by surprise and might bring them injustice. I would accordingly refuse to accept the contention of Mr. Patnaik on this score at this stage. The first point raised by Mr. Patnaik accordingly fails.
8. Coming to the second point, there seems to be substantial force. On the finding recorded by the trial court about the dates of death of the various parties which, I have already indicated, is not disputed in the appeal, Dalu must be taken to have died before the extension of the 1937 Act to the ex-State area of Keonjhar and as such the plaintiff No. 1 would not be entitled to any share in the property and at the time when Panchu died which has been found to the about 12 years prior to the suit, the family consisted of Dutia. Dasarath and Panchu each having l/3rd share in the property. Under the law the second plaintiff who is the widow of Panchu was entitled to the share her husband had at the time of his death. That being l/3rd the plaintiff No. 2 was entitled only to l/3rd. In such circumstances, the learned trial judge went wrong in giving a decree of moiety share to the plaintiffs.
9. Incidentally, it may also be mentioned that the plaintiff No. 3 is not entitled to any share in the property. Any share to be claimed by her could be only through the scheme laid down under the Hindu Succession Act. It is pointed out by Mr. Patnaik and I think rightly, that under Section 2(2) of the Hindu Succession Act it has been clearly! stipulated that the Hindu Succession Act would not apply to members of the scheduled tribe unless there is a notification by the Central Government in the official gazette making the Hindu Succession Act applicable to the scheduled tribes.
10. The notification which is produced before me clearly shows that Bathudis are members of the Scheduled tribe. A document on the plaintiff's side which has been exhibited in this case (Ex. 3) has described the parties as belonging to Bathudi sub-caste. For the limited purpose and in view of the clear provision contained in Section 2(2) of the 1956 Act I think it proper to hold that the plaintiff No. 3 would not be entitled to a share in the property by application of the Hindu Succession Act as that Act does not apply to the parties. While I have negatived relief to the defendant in regard to the claim raised by Mr. Patnaik that Hindu Law would not apply to the parties at all -- because I found such a contention not to have been raised in the trial court -- I am prepared to give relief to the defendant on the present ground that the plaintiff No. 3 is not entitled to a share in the property on the footing that there is a specific provision in the Hindu Succession Act and an admitted document on the plaintiff's side describes the parties to belong to Bathudi sub-caste which, admittedly on the declaration made in the 1950 Order, makes the Bathudi community members of the scheduled tribe. Thus the plaintiff No. 3 is not entitled to any share. Nor is the plaintiff No. 1 entitled to any share. She may at best have a claim for maintenance. The plaintiff No. 2 alone would be entitled to l/3rd in the property described under Kha and Ga schedules.
11. I will now proceed to the third point. The learned trial judge has relied upon the Hat chitha entries Exts. 1 and 2 to find out the dates of death of Panchu and Dutia. Mr. Patnaik contends that these entries should not have beenrelied upon by the trial court as a regular Hat-chita book has not been produced and what has been produced and marked in the trial court as exhibits is actually a leaf from the book. The choukidar himself has come to depose In support of the entries and the learned trial judge has relied upon the evidence of the choukidar. Merely because the whole book has not been produced I am not prepared to discard the entries which satisfy the requirements of Section 35 of the Evidence Act and being entries in the hands of the public officer whose duty it is to so record the facts, the entries are admissible in evidence. I would accordingly negative this contention of Mr. Patnaik and would hold that the trial court had rightly relied upon these Hat-chitha entries for coming to his conclusion on the question of the dates of death of some of the members of the family, I have also indicated above that no serious dispute was raised about the finding of the trial court on that score.
12. The last question for consideration is about the Gha schedule properties. The Gha schedule covers items like buffaloes, bullocks, goats, cows and utensils. There was a serious dispute raised in paragraph 9 of the written statement about the existence of these items The defendant had contended that they did not exist at all and had alternately stated that any of those items that were In existence belonged to him and his wife and had been brought to the family by his wife at the time of marriage. The learned trial judge did not properly consider the defence case and seems to have worked under the impression that the existence of all the items of movables was admitted but a claim of exclusive title was raised by the defendant.
13. Once existence of the different Items of the movables was disputed it was for the plaintiffs to establish their existence to include them in the hotchpot for partition. The learned trial judge came to find that items like paddy-stocks, goats and heifers did not exist. I was (taken through the evidence on the side of the plaintiffs during the hearing of the appeal. P. Ws. 1 and 3 are not material witnesses on this question. P. W. 2 has clearly stated:--
'The joint family had two pairs of bullocks and one pair of buffaloes and two shebuffaloes. I do not know other joint family movables.'
P. W. 4 (plaintiff No. 1) had stated in her evidence in chief:--
'We had two pairs of bullocks, one pair of he-buffaloes, two heads of she-buffaloes, two calves, four goats, one old cow one Gora, three brass pitchers, one Nota two plates and one cup.'
In cross-examination she had. however, come to state again:--
'My father-in-law had one pair of bullocks and one pair of buffaloes and they are alive.'
It is well settled in law that partition in respect of movables can only be granted if they exist or if it is alleged and found that the family had lost the movables on account of any delinquency on the part of the persons sued against. In the present case, on the evidence of P. W. 4 herself, I would hold that the family had a pair of bullocks and a pair of buffaloes alive at the time of the claim for partition and these two items of movable properties alone are liable for partition. In view of my finding that Gha schedule will be taken to include a pair of bullocks and a pair of buffaloes the plaintiff No. 2 would be entitled to l/3rd share therein. The proper way to divide these two items would be to take their money value for convenience and allot l/3rd thereof to the plaintiff No. 2 unless by consent of parties the learned trial judge finds any other method more convenient.
14. The conclusion to be reached in the appeal, therefore, would be--(1) the plaintiff No. 2 alone -- and not the other plaintiffs -- has l/3rd share in Kha and Ga schedule properties (2) the plaintiff No. 2 has also l/3rd share in the two items of Gha schedule properties, namely a pair of bullocks and a pair of buffaloes. A preliminary decree in respect of such claim to the extent indicated be granted to her in lieu of the decree granted in the trial court. As it is preliminary decree for partition which is now passed. I would call upon the parties to bear their own costs upto this stage. Further costs to be borne in accordance with the respective shares decreed now.