Amareshwar Sahay, J.@mdashHeard the parties and with their consent, this writ application is being disposed of finally at this stage itself.
2. In the present writ petition, the petitioner has prayed for quashing of the order contained in Annexure - 6, the Order dated 20.05.2003, passed by the Divisional Commissioner, Santhal Pargana Division, Dumka in R.M.A. Case No. 14 of 2002 - 03 allowing the Second Appeal filed by the Respondent No. 4 herein, namely Sogen Murmu and setting aside the Order passed by the Deputy Commissioner, Pakur contained in Annexure-5 and thereby affirming the Order dated 29.09.2001 passed by the Sub-Divisional Officer, Pakur contained in Annexure-4, whereby, the Sub Divisional Officer appointed the Respondent No. 4 Sogen Murmu as Village Head ("Gram Pradhan") of village Bichpahar situated within the P.S. - Pakuria of District - Pakur after rejecting the application of the petitioner for her appointment as "Gram Pradhan". The petitioner has also made a prayer in this writ petition to quash the Order of the Sub Divisional Officer contained in Annexure-4.
3. The facts in brief giving rise to this application are as follows:
The father of the petitioner namely Doman Murmu was admittedly the "Gram Pradhan" of village Bichpahar in the District of Pakur. Since he was not keeping good health because of his old age, he made an application before the Sub Divisional Officer, Pakur for appointing his eldest daughter i.e. the petitioner herein, as "Gram Pradhan" of village Bichpahar. Admittedly, the said "Gram Pradhan" Doman Murmu had no male issue and had only five daughters, amongst them, the petitioner was the eldest.
By Order dated 26.07.1995, the Sub Divisional Officer, appointed the petitioner as ''Acting Pradhan'' of village Bichpahar during the life time of the father of the petitioner and since thereafter, she started discharging her duties as "Gram Pradhan".
4. Admittedly, during the life time of her father, the petitioner ,got married with one Sonatan Tudu in ''"Ghar Jamai"'' form of marriage prevalent amongst Santhal Tribe. After the said marriage, the husband of the petitioner Sonatan Tudu became "Ghar Jamai" and he started living in the house of his father-in-law with the petitioner.
5. Subsequently, on 13.03.1998, the father of the petitioner, Doman Murmu who was the "Gram Pradhan" died and then the petitioner made an application before the Sub Divisional Officer, Pakur, requesting him to appoint her as a Village Head ("Gram Pradhan") in place of her father. As it appears, the Respondent No. 4 Sogen Murmu who is the cousin of the petitioner i.e. nephew of her father Doman Murmu, also applied before the Sub Divisional Officer for being appointed as a "Gram Pradhan".
6. The Sub Divisional Officer, by his Order dated 29.09.2001, as contained in Annexure-4, rejected the application of the petitioner for being appointed as "Gram Pradhan" holding that 16 Aana Raiyats of the village were objecting to her appointment and there was no consensus of 16 Aana Raiyats in favour of the petitioner whereas, the consensus of the 16 Aana Raiyats was in favour of the Respondent No. 4 Sogen Murmu who was the nephew of ex-Village Pradhan and thereby, the S.D.O. passed an order on 29.09.2001 appointing respondent No. 4 Sogen Murmu as the Pradhan of village Bichpahar.
7. Being aggrieved by the aforesaid Order of the Sub Divisional Officer dated 29.09.2001, the petitioner preferred an appeal before the Deputy Commissioner, Pakur who, vide his Order as contained in Annexure-5 dated 12.09.2002, set aside the Order passed by the Sub Divisional Officer i.e. Annexure-4.
8. The Respondent No. 4 thereafter preferred Second Appeal under the provisions of Section 58 of the Santhal Pargana Tenancy Act, before the Divisional Commissioner, Santhal Pargana, Dumka . The learned Commissioner, by the impugned Order dated 20.05.2003, as contained in Annexure-6, set aside the Order of the Deputy Commissioner and affirmed the Order passed by the Sub Divisional Magistrate dated 29.09.2001 as contained in Annexure-4. It is against this Order passed by the Commissioner, the present Writ Application has been filed by the petitioner.
9. From perusal of the impugned Order passed by the learned Commissioner, it appears that in paragraph-6 of his Order, he has mentioned that from the records of the case, it appeared to him that the Sub Divisional Officer had also called for a report from the Block Development Officer, Pakuria and the Block Development Officer, vide his letter No. 116 dated 20.02.2001, stated that Late "Gram Pradhan" Doman Murmu had no male issue and therefore, his daughter Devimay Murmu married with Sonathan Tudu of Village - Malpahar by performing "Ghar Jamai" form of marriage and started living with her husband in the house of her father.
"Ghar Jamai" form of marriage has been recognized as a valid marriage under the Santhal Pargana Customary Law, there is no dispute on this point.
10. The learned Commissioner held that after "Ghar Jamai" Form of marriage, the son-in-law i.e. "Ghar Jamai" attains the same status to that of an adopted son of this father-in-law and he becomes entitled to inherit his properties. The learned Commissioner further held that after the petitioner got married with Sonathan Tudu in "Ghar Jamai" form of marriage, then it was her husband Sonathan Tudu, who became the legal heir of his father-in-law and not the petitioner and therefore, it was Sonathan Tudu who could have made an application for appointment as Village ''Pradhan'' and not the petitioner. Since sonathan Tudu did not make any application for being appointed as a Village ''Pradhan'' and as such, the claim of the petitioner Devimay Murmu was rejected on the ground that she was not the legal heir of her father.
11. Now the question to be considered in this writ petition is as to whether the finding of the learned Commissioner that the petitioner was not the legal heir of her father and, therefore, she could not have applied for being appointed as "Gram Pradhan" is sustainable in law?
In order to decide this question, we have to firstly take note of the relevant provisions under Santhal Pargana (Supplementary) Provisions Act, 1949 and the Rules made thereunder as well as the customary laws of inheritance prevalent amongst Santhals.
12. Section-5 of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 deals with the provisions for appointment of village Headman and Mool Raiyats, which reads as under:
5. Appointment of a village headman of a khas village.
On the application of a raiyat or of landlord of any khas village and with the consent of at least two thirds of the jamabandi raiyats of the village ascertained in the manner prescribed, the Deputy Commissioner may declare that a headman shall be appointed for the village and shall then proceed to make the appointment in the prescribed manner.
Section 6 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 lays down that the Landlord has to report about the death of village Headman to the Deputy Commissioner. Section 6 reads as under:
6. Landlord to report the death of village headman.
When the village headman of a village which is not khas, dies, the landlord of the village shall report the fact within three months of its occurrence to the Deputy Commissioner with a view to the appointment of a village headman in the prescribed manner.
13. Rule - 3 of the Santhal Pargana Tenancy (Supplementary) Rules, 1950 speaks about the Rules, regarding the manner of ascertaining the consent of Jamabandi Raiyats and appointment of headman u/s 5 of the Santhal Pargana Tenancy Act. For the sake of convenience, Rule - 3 is being reproduced hereinbelow.
3. Rules regarding the manner of ascertaining the consent of Jamabandi Raiyats and appointment of headman u/s 5 of the Santhal Pargana Tenancy Act
(1) On receipt of an application from a raiyat or a landlord u/s 5, the Deputy Commissioner shall issue notice to the jamabandi raiyats of the village and to the landlord in Form A.
(2) The consent of at least two-thirds of the persons recorded as jamabandi raiyats of the village shall be ascertained by the Deputy Commissioner by show of hands: Provided that if on the date so fixed at least two-thirds of the persons recorded as jamabandi raiyats of the village fail to be present the Deputy Commissioner shall fix another date and issue fresh notices in the manner prescribed in Sub-rule 3(1), if on the date so fixed, at least two-thirds of the persons recorded as jamabandi raiyats again fail to be present the Deputy Commissioner shall summarily reject the application made u/s 5.
(3) The decision of the Deputy Commissioner as to whether a person is entitled to vote or not shall be final.
(4) If at least two-third of the persons recorded as jamabandi raiyats give their consent for appointment of headman for the village, the Deputy Commissioner shall at once invite nomination for the appointment of headman and proceed to make the appointment.
(5) In making the appointments of headman u/s 5 of Section 6, the Deputy Commissioner shall, as far as possible, follow the rules prescribed in Shcedule V except where these rules, expressly or by necessary implication, provide otherwise.
14. Schedule-V of Santhal Pargana Tenancy (Supplementary) Rules, 1950 is also relevant for the point under consideration in this case and as such, the same is being quoted hereinbelow.
SHCEDULE V
THE APPOINTMENT OF HEADMAN
In appointing headmen the following rules should be taken into consideration.
The headman must be a resident of the village or his permanent home must be within one mile of the village.
1. The appointments of headman shall be made in accordance with village customs, and before confirming any appointment, the Deputy Commissioner shall satisfy himself that the candidate is generally acceptable to the raiyats, and an opportunity shall also in every instance, be afforded to the proprietor to object to any candidate.
2. No sub-division of the office of headman can be allowed or recognized unless:
(a) there are different classes of raiyats in the village who have always been managed separately;
(b) such sub-division has been recognized at the last settlement.
3. The office of headman being hereditary, the next heir, who is fitted, should be headman. If the heir be a minor, he may be appointed headman with a sarbrakhar to manage for him until he attains his majority.
If no suitable sabrakhar can be found, the right of the minor lapses.
4. A person may be refused succession on the death of his father/mother if, for reasons to be recorded, he/she be consider unfit for the post.
Dismissal of Headman.
The power of dismissal rests with the Deputy Commissioner subject to an appeal to the Commissioner, Santhal Parganas. Headmen are liable to be dismissed for the following reasons, and the heir of headman dismissed for misconduct shall have no claim to the office:
(1) On account of personal unfitness through excessive age; defective intellect or physical infirmity, provided that in cases of this kind, a headman during his life-time may with the approval of the Deputy Commissioner, appoint his heir to act for him. Any misconduct on the part of heir will render him liable to lose his claim to succession on the death or resignation of the headman for whom he acts.
(2) On account of any proved fraud, violence, contempt of Court or other grave misconduct or of such oppressive or inconsiderate treatment of the raiyats or gross neglect of their interest as may be considered to unfit him for the post.
(3) For destroying, damaging or failing to guard the common property and recorded rights of the village, or for collecting from raiyats in excess of the settlement of the settlement rates.
(4) For failure without due cause to pay his village rents punctually or for alienating or attempting to alienate, without permission his jot which is security for the rent.
(5) The interest of a headman manjhi or mustajir is not transferable by sale or otherwise.
But in case where such interest has been sold through the Courts and where the right of the purchaser has never since been questioned, recognition should not be refused to the purchaser merely on the ground that the sale took place subsequent to the prohibition by Government of such sale."
15. From the aforementioned provisions of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949, it appears that Section 5 thereof deals with the provisions for the appointment of ''Village Head Man" of Khas village, whereas, Section 6 thereof speaks regarding appointment of a ''Head Man'' of a Village which is not a ''Khas'' village. It provides that on the death of Headman, the same has to be reported within three months from the date of the death, to the Deputy Commissioner in order to make appointment of the Village Head Man in the prescribed manner.
16. Clause (3) of Schedule - V of the Santhal Pargana Tenancy (Supplementary Provisions) Rules provides that the office of the Head Man being hereditary, the next heir who is fit, should be appointed as a Head Man. If the heir be a minor, he may be appointed as a Head Man with a "Sarbrakhar" to manage for him until he attains the age of majority.
Clause (4) of Schedule - V provide that a person may be refused succession on the death of his father/ mother, if for reasons to be recorded, he/she be considered unfit for the post.
17. It is not the case of the either of the parties that the village in question is a ''Khas Village''. Since we are dealing with a case of non ''khas'' village and therefore, Section - 6 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 is applicable in this case and not Section 5 of the Act which relates to the appointment of a Head Man of a ''Khas'' Village.
The office of the "Pradhan" of a non Khas village is hereditary in nature and the next heir, who is fit, is entitled to be appointed as a Headman.
18. As already noticed above, Schedule-V of Santhal Pargana Tenancy (Supplementary) Rules, 1950 speaks about appointment of Headman. As per Rule - 3 of Schedule - V, the office of the Headman being hereditary, the next heir who is fitted, should be the Headman of the village. There is no provision either in the Santhal Pargana (Supplementary) Provisions Act, 1949 or in the Rules made thereunder which puts any restriction or debars any female from being appointed as ''Headman''.
19. No doubt as per the customary law prevalent in Santhals, female has no claim over the properties but at the same time, a daughter has the right to succeed over the property of her deceased father if she married to a person in Gharjamai form of marriage and lives at her father''s place along with her Gharjamai husband. In such a situation, a Gharjamai daughter gets the reflection of a son and Santhal law of inheritance accepts Gharjamai daughter to succeed only to continue the family lines.
20. As per the Gantzer''s report, published in the year 1936, the Santhal law of Succession is patriarchal. The father has absolute control over the family property so long he is alive. The Santhal Customary Law of Inheritence does not recognize the female to succeed over the family property. The female has no claim in the property. The daughter cannot succeed over the properly of deceased unless she is married in the "Ghar Jamai Form". A Ghar Jamai daughter for all tenets and purposes gets the reflection of the son. The Santhal Law of Inheritence accepts the "Ghar Jamai" daughter to succeed only to continue the family line. If the "Ghar Jamai" daughter dies issueless, the property of the deceased will not devolve on the "Ghar Jamai" or son-in-law. The son-in-law is joint owner with the wife and his son. In absence of these two, he has no claim in the property.
21. In the present case, it is Section 6 which is attracted, is applicable. Therefore, the procedure for ascertaining the consent of Jamabandi Raiyat as envisaged in Section 5 of the Act was not required to be followed. It is relevant to refer the decision of Division Bench of this Court in this regard rendered in the case of
The Division Bench, in the aforesaid case, has also held that the office of the Headman relating to the village in question is a hereditary office. In that context, the primary question for consideration is whether the person claiming to succeed was in any manner disqualified or is to be held to be unfit for the post.
22. In the present case, the claim of the petitioner has been negated by the learned Commissioner only on the ground that she was not a legal heir of her father, which, in my view, is not the correct proposition of law.
23. In view of the fact that the office of the Headman is hereditary and the next heir ought to be appointed as a Headman, it may be either son or the daughter. A daughter may become entitled to become as Headman only if she is a Gharjamai daughter, meaning thereby that she must have married to a person by performing Gharjamai form of marriage and her husband must be living at her in-laws place by severing of his relationship with his own family.
24. in view of the discussions and findings above, I hold that since the petitioner was the eldest daughter of her father who had no male issue and when she had married with Sonathan Tudu in Gharjamai form of marriage and her husband Sonathan Tudu was living with her at her father''s place and when there is no legal bar for her being appointed as a village ''Headman'', then in that case, in order to continue the family line, the petitioner being ''Ghar Jamai daughter'', could have succeeded and as per the Gantzer''s report where it is mentioned that a ''Ghar Jamai'' daughter for all tenets gets the reflection of a son, the petitioner''s claim for being appointed as village "headman'' could not have been negated by the learned Commissioner as has been done in the impugned order as contained in Annexure-6 on the ground that she was not the legal heir.
25. Consequently, this writ application is allowed. The order passed by the learned Commissioner as contained in Annexure - 6, is hereby set aside. Consequently, the order passed by the Deputy Commissioner contained in Annexure-5 is upheld. However, in the facts and circumstances, there shall be no order as to costs.
