Women from tribal communities in Tamil Nadu entitled to equal share in family property under Hindu Succession Act: Madras High Court

The Madras High Court recently ruled that women belonging to tribal communities in Tamil Nadu are entitled to equal share in their family or ancestral property at par with their male coparceners under the Hindu Succession Act, 1956 [Saravanan v Semmayee]. .In a judgement passed on February 22, Justice SM Subramaniam of the Madras High Court upheld an October 2017 order of a trial court that had held that tribal women in Tamil Nadu are entitled to a share in the family property at par with the share of the male family members.Justice Subramaniam said that even if the customs or practices of a notified tribe prevent women from having equal rights, such customs could not override law and public policy. The High Court, therefore, said that tribal women in the State of Tamil Nadu can not be excluded from their share in the family property under the Hindu Succession Act..The trial court order was passed on a suit filed by a mother-daughter duo belonging to a notified tribe in Tamil Nadu seeking a share in their family property. The trial court order came to be challenged before the Madras High Court by their male relatives (appellants). The appellants initially claimed that the contested property was part of a settlement agreement as per which the two women were not entitled to receive a share. However, their counsel went on to argue that tribal women were expressly excluded from the application of the provisions of the Hindu Succession Act. He argued that Section 2(2) of the Act stipulates that its provisions can be applied to members of any scheduled tribe only if a Central government notification provides for the same. The counsel for the two women, however, argued that the community that the women belonged to did not have any prevalent customs governing the issue of one's share in property and, therefore, the Hindu Succession Act would be applicable in the present case..The High Court said that the purpose of Section 2(2) of the Act was not to bar women from claiming a share in family property. "Thus, Section 2(2) cannot be construed as a complete bar for invoking the provisions of the Hindu Succession Act. But it paves way for the Central Government to notify the tribal communities, who have already moved forward and whose primitive customs and practice are not prevailing amongst the community for inheritance," the High Court said. The Court further said that the legislature did not have any intention of furthering any inequality or unconstitutionality in the matter of inheritance when it came to women belonging to the scheduled tribes.It said that in the present case, the parties to the suit belonged to notified tribes and, therefore, the Court had to examine if the concerned tribe had any established custom that provided for applying the clause of exclusion contemplated under Section 2(2) of the Hindu Succession Act. It said that in the absence of any such custom, the Court had to apply provisions of the Act and there existed no other reason to deprive the women from getting an equal share in the property. "The nature of custom and practice to be established must be not only certain, it must be in practice continuously. In the present case, there is.no whisper about such custom or practice in the community in which the parties are living and in the absence of any such proof, the Trial Court has rightly arrived at a conclusion that the parties to the suit are to be construed as Hindus for the purpose of application of Hindu Succession Act and accordingly, granted the relief of partition and granted equal share to tribal women on par with their counter parts/male copercenors," the High Court said. It, therefore, upheld the trial court order and also directed the Tamil Nadu government to take requisite steps "for the purpose of issuing appropriate notification through Central Government under Section 2(2) of the Hindu Succession Act 1956, to protect the equal property right of the tribal women in the state of Tamil Nadu." Advocate C Jagadish appeared for the appallent men. Advocate K Siva Subram appeared for the two women, who were the respondent parties in the present appeal..[Read Judgment]