1. The present second appeal has been admitted for consideration on the following substantial question of law:-

Whether in view of Section 6 of Central Provinces Laws Act, 1875 the Court can apply the principles of Hindu Succession Act to the members of Scheduled Tribes

2. Vide judgment & decree dated 2.5.1994 the Additional District Judge, Surajpur, in Civil Appeal No.52A/92 allowed the appeal and dismissed the suit by reversing the judgment & decree dated 10.3.92 passed by the Civil Judge Class-ll, Surajpur, in Civil Suit No.9A/88.

3. Undisputed facts of the case, Jhangal and Dakhal were two brothers. Plaintiffs Sawango and Jaituniya are daughters of Jhangal, defendant Urchamahin was daughter-in-law of Dakhal, brother of Jhangal and Kismat Singh was probably illegitimate grandson of Balam Singh i.e. son of Dakhal. Both brothers Jhangal and Dakhal were joint owner of the property situated at village Kurwa, tahsil Surajpur i.e.9.88 acres, they were by caste Gond. As per plaint allegation, they follow the Hindu law for their succession, but as per respondents allegation, they were having their own custom for succession.

4. After providing opportunity of hearing to the parties, the trial Court has decreed the suit for partition to the extent of half share in favour of the plaintiffs, but same has been reversed by the lower appellate Court.

5. I have heard learned counsel for the parties, perused the judgment & decree impugned, judgment & decree of the trial Court and records of the Courts below.

6. Learned counsel for the appellant submits that the plaintiffs have specifically pleaded and deposed that they have adopted the Hindu law, especially for the purpose of succession, but the respondents have failed to prove the custom contrary to the Hindu law, therefore, suit ought to have decreed even in terms of Section 6 of the Central Provinces Laws Act, 1875 (for short the).

7. On the other hand, learned counsel for respondent No.2 opposes the appeal and submits that the parties are members of Scheduled Tribes and in their caste Gond i.e.Gond caste, daughters are not entitled to inherit the property left by their father. Defendant No.1 Urchamahin has specifically deposed that Jhangal died issueless, Dakhal died leaving only son Balam Singh who has inherited the property left by both brothers.

8. Indisputably, it was joint property of Jhangal and Dakhal. Defendants are heirs of Dakhal and the plaintiffs are heirs of Jhangal. Both the parties have failed to prove any custom governing succession in their caste.

9. The Central Provinces Laws Act, 1875 has been enacted to regulate the inheritance, special property of females, betrothal, marriage, dower, adoption and other system and customs. Sections 5 and 6 of thereads thus:

"5. Rule of decision in cases of certain classes.- In questions regarding inheritance, special property of females, betrothal, marriage, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be the Muhammadan Law in cases where the parties are Muhammadans, and the

Hindu Law in cases where the parties are Hindus, except in so far as such law has been by the legislative enactment altered or abolished, or is opposed to the provisions of this Act:

Provided that when among any class or body of persons or among the members of any family any custom prevails which is inconsistent with the law applicable between such persons under this section, and which if not inconsistent with such law, would have been given effect to as legally binding, such custom shall, notwithstanding anything herein contained, be given effect to.

6. Rules in cases not expressly provided for.- In cases not provided for by section 5, or by any law for the time being in force, the Courts shall act according to justice, equity and good conscience."

10. In the present case, both the parties have failed to prove any law of inheritance or custom prevailing in their Gond caste i.e. member of Scheduled Caste whom Hindu law or other law governing inheritance is not applicable, in absence of any law of inheritance or custom prevailing in their caste governing the inheritance the Courts are required to decide the rights according to justice, equity and good conscience in term of Section 6 of the. Plaintiffs Sawango and Jaituniya are daughters of Jhangal, nearest relative rather the respondents, who were daughter-in- law of brother of Jhangal and legitimate or illegitimate son of Balam Singh, son of Dakhal.

11. In these circumstances, plaintiffs Sawango and Jaituniya would be the persons best entitlement to inherit the property left by their father. The Courts below ought to have decreed the suit for partition to the extent of share of Jhangal, but the Court below i.e. the lower appellate Court has allowed the appeal and dismissed the suit in absence of any law or custom for inheritance for a member of Schedule Tribe. The Courts below are required to decide their rights of inheritance in accordance with the provisions of Section 6 of theapplicable to the State of Chhattisgarh and undivided State of Madhya Pradesh.

12. Consequently, substantial question of law formulated for the decision of this appeal is decided as positive with a modification that in absence of any such law of inheritance the Courts are required to decide the question of inheritance according to justice, equity and good conscience.

13. On the basis of finding on substantial question of law, the appeal deserves to be allowed and is hereby allowed. Judgment & decree of the lower appellate Court are hereby set aside and judgment & decree of the trial Court are hereby restored.

14. Parties shall bear the cost of the appeal.

15. Advocate fees as per schedule.

16. Decree be drawn up accordingly.