Gujarat HC: Tribal Woman Could Bequeath Inherited Land by Will; Brother's Survivorship Claim Fails Without Proof of Custom

Gujarat High Court dismisses a second appeal, holding that a Scheduled Tribe widow who inherited her husband's agricultural land became its absolute owner and could validly execute a Will in favour of her nephew, absent any proven custom forbidding it.

The High Court of Gujarat at Ahmedabad has dismissed a second appeal challenging concurrent findings of two civil courts that had refused to declare a man the sole owner of agricultural lands belonging to his deceased sister. Justice Maulik J. Shelat, sitting singly, held on 11 September 2026 that the sister — a Scheduled Tribe woman named Chhaniben — had validly bequeathed those lands by a registered Will, and that her brother's claim of sole ownership through the rule of survivorship could not succeed in the absence of any proved custom entitling him to inherit. The judgment applies the Supreme Court's recent exposition on justice, equity and good conscience as the governing standard when neither a codified personal law nor a specific tribal custom covers the situation, and recommends that the State Government initiate steps for a Central Government notification under Section 2(2) of the Hindu Succession Act, 1956 to protect tribal women's property rights.

The Dispute Before the Court

Chhaniben was married to one Jivlabhai Chogdabhai of Village Nogama, Taluka Mandvi, District Surat. Jivlabhai held agricultural lands as a tenant and died issueless in or around 1958–59. Chhaniben thereafter inherited those lands and her name was mutated in the revenue records. Chhaniben herself died issueless on 15 July 1991.

Before her death, on 1 July 1991, Chhaniben executed a registered Will bequeathing the suit properties to the defendant, whom she described as her nephew. The defendant's name was subsequently mutated in the revenue records. The plaintiff — who claimed to be Chhaniben's brother, though the evidence disclosed they were born of the same mother but different fathers — challenged that Will. He also averred that he had himself executed a Will in the defendant's favour on 1 July 1991 but cancelled it on 4 July 1997, and that a power of attorney he had granted the defendant was cancelled on 27 May 2002.

On 27 September 2002, the plaintiff instituted Regular Civil Suit No. 26 of 2002 before the Principal Senior Civil Judge, Bardoli, seeking a declaration that Chhaniben had no right to execute a Will, that he was sole owner of the suit properties by the rule of survivorship, delivery of possession, mesne profits, and a permanent injunction restraining the defendant from interfering with Block Nos. 51 and 366 at Village Borigala, Taluka Mandvi. He claimed to belong to the Scheduled Tribe Chaudhari Community and was accordingly exempted from court fees.

The defendant contested the suit. He averred that the plaintiff himself had accompanied Chhaniben to the advocate's office for preparation of the Will and was fully aware of its execution. The defendant also pointed out that Jivlabhai's elder brother, Kavlabhai Chogdabhai, was alive at the time of Chhaniben's death and had himself filed Regular Civil Suit No. 46 of 1991 against both the plaintiff and the defendant. The defendant produced a certified copy of the joint written statement filed by the plaintiff and defendant in that earlier suit, in which the plaintiff had admitted the defendant's possession.

The Trail of Concurrent Findings

The Trial Court framed six issues. It found, among other things, that the plaintiff failed to prove a 1972 Will allegedly executed by Chhaniben in favour of the plaintiff's son, Raysangbhai — no such Will was produced. It found that the plaintiff's own Will in favour of the defendant had indeed been revoked on 4 July 1997. It found against the plaintiff on his claim to co-ownership and subsequent sole ownership through survivorship. It partly allowed the suit only to the extent of granting a permanent injunction in favour of the plaintiff in respect of Block No. 366, which the plaintiff was found to be in possession of, directing the defendant not to disturb that possession.

The Trial Court reasoned that the plaintiff had failed to plead or prove any custom within his tribal community by which a widowed sister's property, inherited from her husband, passed to her brother on her death. It noted that Chhaniben's brother-in-law Kavlabhai was alive at the time of her death. Applying the tenets of old Hindu law in the absence of any proved custom, it held that property inherited by a widow from her husband would pass, on her death, to the next male heir of the husband — here, Kavlabhai — not to her brother.

The plaintiff appealed. The 3rd Additional District Judge, Surat at Bardoli, dismissed Regular Civil Appeal No. 51 of 2015 vide judgment dated 24 June 2026, confirming the Trial Court's decree after re-appreciation of evidence and reference to Sections 14 to 16 and 30 of the Hindu Succession Act, 1956. The appellants — legal heirs of the original plaintiff — then filed R/Second Appeal No. 500 of 2026 under Section 100 of the Civil Procedure Code, 1908.

Submissions in the Second Appeal

Mr. N.V. Gandhi, appearing for the appellant-plaintiff, pressed two principal arguments. First, he contended that both courts below committed a serious error in law by applying old Hindu law and provisions of the Hindu Succession Act, 1956, when Section 2(2) of that Act expressly excludes Scheduled Tribes from its operation. Since the parties were Scheduled Tribe members, neither Hindu law nor the Act could govern their succession, and accordingly the courts should have recognised the plaintiff as Chhaniben's legal heir entitled to her property through survivorship as her surviving brother.

Second, Mr. Gandhi argued that the suit properties were restricted-tenure lands, and Section 73AA of the Gujarat Land Revenue Code, 1879 barred transfer of such lands by Will. He relied on a coordinate bench judgment of the Gujarat High Court in LH of Late Jashvantbhai Abhesingbhai Vasava & Ors. v. Jesingbhai Abhesingbhai Vasava & Ors., Second Appeal No. 113 of 2024, decided on 19 November 2024, for the proposition that restricted property cannot be transferred through a Will.

How Justice Shelat Reasoned

Justice Shelat acknowledged that Section 2(2) of the Hindu Succession Act, 1956 unequivocally excludes Scheduled Tribes from its application, and that neither the Act nor Hindu law technically applied to the parties. But he held that this did not automatically favour the plaintiff.

The critical gap was the plaintiff's complete failure to plead and prove any specific custom of the Chaudhari tribal community. The plaintiff did not identify any custom by which, when a widowed tribal woman dies issueless leaving property she inherited from her husband, that property passes exclusively to her natal brother. Mr. Gandhi fairly conceded before the Court that no such evidence had been led at trial. What came on record, instead, was that in para 6 of the defendant's affidavit in lieu of examination-in-chief, the defendant had deposed that the community followed Hindu tradition and that, accordingly, Chhaniben became the absolute owner of the suit properties.

Justice Shelat drew on the Supreme Court's decision in Ram Charan and Ors. v. Sukhram and Ors., AIR 2025 (Civil) SC 2363, which involved a somewhat similar factual scenario concerning a tribal woman's right to inherit an equal share in ancestral property. That decision had held that where no custom excluding women from inheritance had been proved, denying a female heir her share would violate Article 14 of the Constitution, and that the proper framework, when neither personal law nor a proved custom covers the field, is the principle of justice, equity and good conscience. The Supreme Court in that case had also traced the principle through a line of constitutional bench decisions, including the Ram Janmabhoomi judgment, M. Siddiq v. Suresh Das, (2020) 1 SCC 1.

Applying that framework, Justice Shelat held that Chhaniben, as the surviving spouse of Jivlabhai who held the land by tenancy rights, had inherited those properties after his death. Once she inherited the land, it became her self-acquired property. No custom was brought on record forbidding her from executing a Will over her own property. The Will of 1 July 1991 in favour of the defendant was duly proved at trial — the defendant examined the Will's attesting witnesses and the Registrar in whose office it was registered. The plaintiff neither proved a defect in the Will's execution nor produced the 1972 Will he claimed Chhaniben had executed in favour of his son. Accordingly, Chhaniben was well within her right to execute the Will, and the defendant validly derived the suit properties from it.

On the survivorship claim, Justice Shelat held that the plaintiff could not claim sole ownership through the rule of survivorship, particularly because Kavlabhai Chogdabhai — the elder brother of Chhaniben's husband Jivlabhai — was alive at the time of her death and was not a party to the suit. Even under old Hindu law (though not strictly applicable), property inherited by a widow from her husband would devolve on the husband's male heirs, not her natal family. Since no custom to the contrary was proved, the plaintiff's declaration claim could not be sustained.

The Section 73AA Argument Rejected

Justice Shelat rejected the restricted-tenure argument on multiple grounds. The argument had not been pressed before either of the courts below — it was being raised for the first time in the second appeal. There was no material on record showing that the plaintiff had initiated any revenue proceeding under Section 73AA(3)(a) of the Gujarat Land Revenue Code, 1879 before the Collector, nor that the revenue authority had suo motu initiated any inquiry against the mutation of the defendant's name.

He further distinguished the relied-upon coordinate bench judgment. In that case, a plaintiff had approached the court seeking a declaration that he be declared absolute owner and occupier on the basis of a Will executed in his favour — a situation in which the bar under Section 73AA was directly attracted and the issue of probate had also arisen. Here, the defendant had not filed a counter-claim and had not sought any declaration of ownership based on the Will. The defendant's name had been mutated without objection from revenue authorities.

Justice Shelat added a further reason: the evidence of a witness to the Will disclosed that preparation and execution of Chhaniben's Will was done at the instance of the original plaintiff himself. Having been instrumental in the Will's creation, the plaintiff could not be permitted to later challenge it on the ground that restricted land cannot be transferred by Will, particularly when no revenue proceedings were ever initiated against the mutation.

No Substantial Question of Law

Justice Shelat held that the questions proposed in the memo of second appeal did not qualify as substantial questions of law under Section 100 CPC. Applying the test from the Constitution Bench decision in Sir Chunilal V. Mehta and Sons Limited v. Century Spinning and Manufacturing Company Limited, AIR 1962 SC 1314, and more recent Supreme Court decisions in Jaichand (Dead) through LRs and Others v. Sahnulal and Another, 2024 SCC OnLine SC 3864, and Russi Fisheries (P) Ltd. v. Bhavna Seth, 2026 SCC OnLine SC 555, he held that where a question of law has already been settled by the highest court, it ceases to be a substantial question of law. The concurrent findings of fact by both courts below were neither perverse nor grossly erroneous, nor did they run contrary to any settled legal position. A second appeal does not lie on erroneous findings of fact alone.

A Recommendation to the State

Before parting with the matter, Justice Shelat observed that disputes of this nature — arising upon the death of a Scheduled Tribe member — would recur in the absence of a clear legal framework. He directed the Registry to send a copy of the judgment to the office of the Government Pleader, High Court of Gujarat, for onward transmission to the concerned State Government department, suggesting that the State Government initiate necessary steps for issuance of an appropriate notification by the Central Government under Section 2(2) of the Hindu Succession Act, 1956, so as to protect equal property rights of tribal women and provide a clear framework for intestate succession within tribes that profess Hindu traditions.

Order

The second appeal was dismissed in limine on 11 September 2026 as meritless. The judgments and decrees passed by the Trial Court and the 3rd Additional District Judge, Surat at Bardoli, were confirmed. No order as to costs. The connected Civil Application for stay was also disposed of as a consequence.