1 sa 165.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 165 OF 2011 1. Jaysing Arjun Thakare and another .. Appellants Versus 1. Jaywanta D/o Rameshing Thakare and others .. Respondents Shri J. R. Shah, Advocate for Appellants. CORAM : S. V. GANGAPURWALA, J. DATE : 13TH APRIL, 2011. PER COURT : . This is plaintiffs' second appeal. The plaintiffs had filed a suit for declaration that they are absolute owners of the property and for possession. The Trial Court dismissed the suit. The plaintiffs preferred an appeal. The Appellate Court also dismissed the appeal confirming the judgment and decree of the Trial Court. The plaintiffs aggrieved thereby have filed the present second appeal. 2. Shri J. R. Shah, the learned counsel for the appellants 2 sa 165.11 submits that whether the parties would be governed by rule of survivorship or succession is the issue in the present matter. The common ancestor was Bonda who was survived by Arjun and Ramsing. The plaintiffs are the sons of Arjun, whereas Ramsing was survived by Rahemsingh. Rahemsingh died in 1980 and defendants are the daughters of Rahemsingh. As the parties are the scheduled tribes, they are not governed by the provisions of the Hindu Succession Act and the plaintiffs would be the absolute owners of the suit properties. According to the learned counsel, even the defendants could not prove custom, as such it was erroneous on the part of the Courts below to dismiss the suit. 3. With the assistance of the learned counsel I have gone through the judgment. No doubt the provisions of the Hindu Succession Act are not applicable to the Scheduled Tribe stricto senso, but the Apex Court in a case of Madhu Kishwar Vs. State of Bihar reported in AIR 1996 S.C. 1864 has held that the provisions of the Hindu Succession Act 1956 and the Succession Act 1925 though in terms, would not apply to the Schedule Tribes, the general principles contained therein being consistent with justice, equity, fairness, justness and good 3 sa 165.11 conscience would apply to them. Accordingly it can be said that Scheduled Tribe woman would succeed to the estate of their parent, brother, husband, as heirs by intestate succession and inherit the property by equal share with male heir with absolute rights as per the general principles of the Hindu Succession Act 1956. So even considering the case of the plaintiffs that Rahemsingh died in 1980 still the same would be after the operation of Hindu Succession Act 1956 and the defendants being daughters therein would be entitled for the share. 4. In the light of above the plaintiffs could not have been declared as an absolute owners. The second appeal being sans substantial question of law is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11