Full Judgment Text
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PETITIONER:
NAGESH BISTO DESAI ETC. ETC.
Vs.
RESPONDENT:
KHANDO TIRMAL DESAI ETC. ETC.
DATE OF JUDGMENT02/03/1982
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
REDDY, O. CHINNAPPA (J)
ISLAM, BAHARUL (J)
CITATION:
1982 AIR 887 1982 SCR (3) 341
1982 SCC (2) 79 1982 SCALE (1)418
CITATOR INFO :
F 1984 SC1121 (12,18)
ACT:
Bombay Pargana and Kulkarni Watans Abolition Act 1950-
Section 4(1) and Bombay Merged Territories Miscellaneous
Alienations Abolition Act 1955-Section 7-Scope of-Watan
properties if impartible-Members of joint family-If entitled
to a share in the watan properties.
HEADNOTE:
The plaintiff’s rather was the last holder of the
office of Desai. After his death the plaintiff, who was his
eldest son, was recognised as the watandar. In 1904 service
appurtenant to the office of Desai was commuted by the
imposition of ’judi’ or quit-rent. Under s. 4 (1) of the
Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 and
s. 7 of the Bombay Merged Territories Miscellaneous
Alienations Abolition Act, 1955 all the watan lands were re-
granted to the plaintiff and he was deemed to be the
occupant thereof within the meaning of the Bombay Land
Revenue Code.
The plaintiff (appellant) filed a suit against
respondents who were members of a joint Hindu family holding
properties described as Kundgol Deshgat Estate claiming a
declaration that the estate formed an impartible estate
governed by the rule of lineal primogeniture. The plaintiff
claimed that as the present holder of the office of Desai he
was entitled to remain in full and exclusive possession and
enjoyment of the suit properties and that other members of
the family had no right, title or interest therein but were
only entitled to maintenance and residence and in the
alternative for partition and separation of 1/6 share
therein.
Denying all the plaintiff’s claims the respondents
pleaded that the entire properties belonged to the joint
Hindu family and were therefore liable to be partitioned.
Rejecting all the claims of the appellant the Trial
Court held that the properties belonged to the joint Hindu
family and were therefore partible.
On appeal the High Court, subject to a modification,
upheld the decree of the court of first instance.
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The question at issue in the appeal to this Court was
whether, (1) even assuming that the estate was impartible
and governed by the rule of lineal primogeniture by custom
as pleaded, the incidents of impartibility as well as the
rule of
342
lineal primogeniture being nothing more than an incident of
the watan, stood abrogated by s. 3(4) of the 1950 Act and s.
4 of the 1955 Act and as such it was not open to the
plaintiff to make any claim on the basis of the alleged
custom, (2) with the resumption of the watan and the re-
grant of the watan lands to him, the suit properties lost
their character as being joint family property and had
become, under the provisions of the 1950 and 1955 Acts, the
plaintiff’s exclusive property by reason of his status as
watandar and as such were not capable of being partitioned.
Dismissing the appeal,
^
HELD: It is well settled that property though
impartible may be the ancestral property of the Joint Hindu
Family. The impartibility of the estate does not per se
destroy its nature as joint family property or render it the
separate property of the last holder, so as to destroy the
right of survivorship; hence, the estate retains its
character of joint family property and its devolution is
governed by the rule of survivorship. To establish that a
family governed by the Mitakshara in which there is an
ancestral impartible estate has ceased to be joint, it is
necessary to prove an intention, express or implied, on the
part of the junior members of the family to renounce their
succession to the estate. [354 C-D]
Martand Rao v. Malhar Rao, [1928] 55 IA 45: AIR 1928 PC
10: 107 IC 7: Adrishappa v. Gurushidappa, (1880) 7 IA 162:
ILR (1880) 4 Bom. 494: 7 Cal. LR 1 (PC); Vinayak Waman Joshi
Rayarikar v. Gopal Hari Joshi Rayarikar, [1903] 30 IA 77:
ILR (1903) 27 Bom. 353: 7 Cal. WN 409; Shiba Prasad Singh v.
Rani Prayag Kumari Debi, (1932) 59 IA 331: AIR 1932 PC 216:
138 IC 861; Collector of Gorakhpur v. Ram Sunder Mal, (1934)
61 IA 286: AIR 1934 PC 157: CIT v. Dewan Bahadur Dewan
Krishna Kishore, (1941) 68 IA 155: AIR 1941 PC 120; Anant
Bhikappa Patil v. Shankar Ramchandra Patil, (1943) 70 IA
232: AIR 1943 PC 196 and Chinnathayi v. Kulasekara Pandiya
Naicker, [1952] SCR 241;AIR 1952 SC 29, relied on.
Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne
Sultan Bahadur v. Shri Pushavathi Visweswar Gajapathi Raj,
[1964] 2 SCR 403: AIR 1964 SC 118 and Rajah Velugoti Kumara
Krishna Yachendra Varu v. Rajah Velugoti Sarvagna Kumara
Krishna Yachendra Varu, (1969) 3 SCC 281: [1970] 3 SCR 88:
AIR 1970 SC 1795, distinguished.
Neelkisto Deb Burmono v. Beerchunder Thakoor, (1867-69)
12 MIA 523; Rani Sartaj Kuari v. Rani Deoraj Kuari (1888) 15
IA 51: ILR (1888) 10 All 272 (PC); Rama Krishna Rao Bahadur
v. Court of Wards, (1899) 26 IA 83: ILR (1899) 22 Mad. 383
(PC); Raja Ram Rao v. Raja of Pittapur, (1918) 45 IA 148:
AIR 1918 PC 81; Baijnath Prasad Singh v. Tej Bali Singh,
(1921) 48 IA 195: AIR 1921 PC 62 and Bhaiya Ramanuj Pratap
Deo v. Lalu Maheshanuj Pratap Deo (1981) 4 SCC 613, referred
to.
2. The plaintiff’s contention runs counter to the
scheme of the Bombay Hereditary offices Act, 1874, and is
against settled legal principles. The plain
343
tiff’s rights to such watan properties, whatever they were,
were subject to the rights of the other members of the
family. [359 C-D]
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In the former Bombay Presidency, a Desghat watan had
always been treated to be the joint family property and the
grant of watan to the eldest member of a family did not make
the watan property the exclusive property of the person who
was the watandar for the time being.
3. The definition of the term "watandar" as contained
in s. 4 of the Bombay Hereditary offices Act is in two
parts: the first sets out what "watandar" means and the
other states what is included in it, that is, the entire
definition of watandar must be looked upon as one, the
latter part being supplementary and additional to what is
contained in first part. Thus, a person who acquired watan
property or held hereditary interest in it without acquiring
the hereditary office and without being under an obligation
to perform the services attached to such office was also a
"watandar" within the meaning of the Watan Act. There can be
no doubt that the Watan Act was designed to preserve to pre-
existing rights of the members of a joint Hindu family. The
expression "watandar of the same watan" would include
members of the family other than the watandar, who were
entitled to remain in possession and enjoyment of the watan
property. [359 G-H 361 F]
Vijyasingrao Balasaheb Shinde Desai v. Janardanrao
Narayanrao Shinde Desai, 51 Bom. LR 556: AIR 1949 Bom. 314;
Kadappo Bapurao Desai v. Krishtappa Bachappa Desai, 37 Bom.
LR 599: AIR 1935 Bom. 380 and Laxmibai Sadashiv Date v.
Ganesh Shankar Date, (1977) 79 Bom. LR 234: AIR 1977 Bom.
350, approved.
Tarabai Sriniwas Naik Guttal v. Murtacharya
Anantacharya, 41 Bom. LR 924: AIR 1939 Bom. 414, overruled.
4. The commutation of service under s. 15(3) of the
Watan Act by which the watandars were relieved in perpetuity
from liability to perform the services attached to their
offices in consideration of ’judi’ or quit-rent charged upon
the watan land unless where it was otherwise provided for,
had not the effect of converting watan land into the private
property of the watandars with the necessary incident of the
alienability, but to leave them attached to the hereditary
offices, which although free from the performance of
services, remain in tact. Despite commutation of service,
the office of watandars ordinarily survived without
liability to perform service, and on that account the
character of the watan lands still remained attached to the
grant. [364 D-F]
Collector of South Satara v. Laxman Mahadev Deshpande,
[1964] 2 SCR 48: AIR 1964 SC 326, relied on.
Appaji Bapuji v. Keshav Shamrav, ILR (1891) 15 Bom. 13,
referred to.
Bachharam Datta Patil v. Vishwanath Pundalik Patil,
[1956] SCR 675: AIR 1957 SC 34: 1956 SCJ 721, referred to.
344
5. The impartibility of the watan lands of the
applicability or the rule of lineal primogeniture regarding
succession to the estate, by the alleged custom as pleaded,
being nothing more than an incident of the watan, stood
extinguished by s.3(4) of the 1950 Act and s.4 of the 1955
Act. The effect of these Acts was to bring out a change in
the tenure or character of holding as watan lands but they
did not affect the other legal incidents of the property
under the personal law. That being so, the members of a
joint Hindu family must be regarded as holders of the watan
land along with the watandar for the time being and
therefore regrant of the lands to the watandar under s. 4(1)
of the 1950 Act and under s. 3 of the 1955 Act must enure to
the benefit of the entire joint Hindu family. [365 C, E; 367
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E]
6. Section 4(2) of the 1950 Act and s. 7(3) of the 1955
Act do not create a statutory bar to a transfer or a
partition once the conditions mentioned therein are
fulfilled. [370 B]
Laxmibai Sadashiv Date v. Ganesh Shankar Date, (1977)
79 Bom. LR 234: AIR 1977 Bom. 350 and Dhondi Vithoba Koli v.
Mahadeo Dagdu Koli, (1973) 75 Bom. LR 290: AIR 1973 Bom.
323, approved.
Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil,
(1975) 78 Bom. LR 720, overruled.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 615-
617/73,618-20/73 and 1850 to 1852 of 1972.
From the Judgment and Decree dated the 22nd June, 1962
of the Mysore High Court at Bangalore in Regular Appeal No.
157/56 Regular Appeal (B) No. 16/57 & RA (B) 6 of 1958.
U.R. Lalit, S.S. Javali D.P. Singh & Ravi Parkash, for
the Appellants in CA. 1850-52/72, R-5 in CA. 615/73, R-2 in
CA. 616/73, R-6 in CA. 617/73 and R-3 in CA. Nos. 618-20/73.
B.D. Bal, R.B. Datar & Miss Madhu Moolchandani, for the
Appellant in C.A. Nos. 615-617/73, R-5 in CA. Nos. 1850-
52/72 & for R-1 in CA. Nos. 618-620/73.
S.T. Desai, K. N. Bhat & Nanjappa Ganesh for Appellant
in CA. 618-620/73, RR 2 and 3 in CA. 1850 to 1851/72, RR.
2,3,17 & 18 in CA. 1852/72, RR 2,3 in CA. 616/73, RR 10 & 11
in CA. 616/73 & for RR 1, 2, 4,5 in CA. 617/73.
S.B. Bhasame, K.A. Naik, & M.R.K. Pillai for R-1 in CA.
Nos. 1850-52/72, CA 615-16/73, R-14 in CA. 617/73 and R-2 in
CA. 618-620/73.
K.R. Nagaraja & Alok Bhatacharya for R-12 in CA. Nos.
1850-52/72, CA. 615/73, R-9 in CA. 617/73, R-13 in CA.
617/73 and R-10 in CA, 618-620 of 1973.
345
P.R. Ramasesh, for RR 13, 15 (a) to (c) in CA. 1852/72,
RR 15 & 17 in CA. 617/73 and RR 11, 14 (a) (c) and (d) in
CA. 618/73.
The Judgment of the Court was delivered by
SEN, J. These nine consolidated appeals on certificate
are directed from a common judgment and decree of the High
Court of Mysore at Bangalore dated June 22, 1962 which
affirmed, subject to a modification, the judgment and decree
of the Civil Judge, Senior Division, Dharwar, dated July 5,
1956, substantially dismissing the plaintiff’s claim for
declaration of title to, and possession of, certain watan
properties and decreeing instead his alternative claim for
partition and separate possession of his one-sixth share
therein.
The principal question in controversy in these appeals
is whether ss. 3 and 4 of the Bombay Paragana and Kulkarni
Watans Abolition Act, 1950 (for short ’Act No. 60 of 1950’)
and ss. 4 and 7 of the Bombay Merged Territories
Miscellaneous Alienations Abolition Act, 1955 (for short
’Act No. 22 of 1955’), which provided for abolition of
watans and alienations in the merged territories, resumption
of watan land and its re-grant, to the holder for the time
being, which brought about a change in the tenure or the
character of holding as watan land, affect the other legal
incidents of the property under personal law.
The suit out of which these appeals arise, was
instituted by the appellant Nagesh Bisto Desai, as
plaintiff, claiming against his two brothers Ganesh Bisto
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Desai and Gopal Bisto Desai defendants Nos.2 & 3, mother
Smt. Akkavva alias Parvathibai, defendant No. 4, brother
Bhimaji Martand Desai, defendant No.5 who had gone in
adoption to Martand, member of a junior branch and father’s
brother’ son Khando Tirmal Desai, defendant No. 1, a
declaration that the properties described in Schedules B and
C appended to the plaint, called the Kundgol Deshgat Estate,
situate in the district of Dharwar in the State of
Karnataka, formed an impartible estate and governed by the
rule of lineal primogeniture and that the plaintiff being
the present holder of the office of Desai was entitled to
remain in full and exclusive possession and enjoyment of the
suit properties and that the other members of the family had
no right, title or interest therein but were only entitled
to maintenace and residence, for exclusive possession of the
family residential house at Kundgol known as Wada described
in Schedule B part 2 from the defendants Nos. 2 to 5, for
exclusive possession of insignia of honour described in
Schedule E and one-third share in the family movables
described
346
in Schedule D. Alternatively, in the event of the Court
holding that the properties described in Schedule B, C and
D, were properties belonging to the joint Hindu family, the
plaintiff claimed partition and separate possession of his
one-sixth share therein.
It will be convenient, in the first place, to refer
briefly to the history of the estate, to set out the
pedigree showing the descent from a common ancestor and to
show how the present case arose.
The plaintiff’s suit is brought on the allegation that
the Deshgat family of Kundgol Paragana of which the
plaintiff and the defendants 1 to 4 are members is a very
ancient and respectable one in the State of Jamkhandi which
later merged in the then Province of Bombay and is now in
the State of Karnataka. The lands and cash allowances
described in Schedule B para (i) and (iii) are the
emoluments of the district hereditary office of Desai.
Abkari is the compensation given to the Desai family by the
British Government when it took over the control of today
and liquor in Hanchinal Inam Village from the Deshgat
family. This amount, together with the cash allowance and
the service lands appurtenant to the office of Desai and the
houses and open sites form the impartible estate called the
Kundgol Deshgat Estate, which was partly located within the
territory of former feudatory State of Jhamkhandi and party
in the territories of the then British India. The first inam
was granted at the time of Thimappa in 1575. All the
properties constituting the Deshgat were acquired under
grants made by the Sultans and Rulers of Bijapur during the
period from 1575 A.D. to 1694 A.D. with a couple of other
grants received from the Chief of Jamkhandi during the
period from 1120 A.D. to 1826 A.D. The watan has remained
with the family which held the hereditary office of Desai
for over four centuries. In 1904, service appurtenant to the
office of Desai was commuted by the imposition of a "judi"
or quit-rent. Properties described in Schedules F and G have
been in possession of the two junior branches descended from
Gundopant and Lingappa from 1825 A.D. and 1854 A.D.
respectively and are being enjoyed by them even now.
The plaintiff’s father, Bistappa, the last holder of
the office of Desai died on July 27, 1931 leaving behind him
his widow Smt. Akkavva and four sons, Nagesh, Bhimrao,
Ganesh and Gopal. Out of them, Bhimarao had gone in adoption
to Martand. member of a junior branch. Upon his father’s
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death the plaintiff Nagesh Bisto Desai was recognised to be
the watandar. The plaintiff’s cousin is Khandappa
The subjoined genealogical table gives the relationship
of the parties belonging to the senior branch descended from
Thimappa.
347
GENEALOGICAL TABLE
Thimppa
|
-------------------------------
| | |
Khanderao Pantoji Gundopant
| |
Thimappa Nilkant
| |
-------------------- |
| | |
Ramappa Nagappa Mallappa
| | |
Bistappa --------------- |
(adopted) | | |
| Imnagappa Bistappa Mortand
| (went in adoption) |
| Bhimraw
| (Adopted Deft.5)
------------------------------
| |
Bistappa(died 1931) Trimallappa
=Smt. Akkevva (Deft 4) |
| Khandappa
| (Deft. 1)
------------------------------------------------------
| | | |
Nagesh Bhimrao Ganesh = Smt. Indirabai Gopal =
(pantiff) (went adoption (Deft. 2) (Deft. 9) (Deft.3)
to Martand) Smt. Kashibai
(Deft. 10)
348
It appears that after the death of the plaintiff’s
father in 1931, in the mutation proceedings that followed,
the plaintiff first made a claim that the watan being
impartible according to the custom of the family, he became
the exclusive owner of the entire watan properties. Although
his brothers Ganesh Bisto Desai and Gopal Bisto Desai,
defendants 2 and 3 had at first consented to mutation of the
watan in his name they later resiled from that position and
the strongest opposition came from the plaintiff’s uncle
Tirmal, father of Khando. In consequence of this, the
plaintiff accepted before the revenue authorities that the
properties belonged to the joint Hindu family and refrained
from making any claim on the footing of the properties being
impartible. In 1945, the plaintiff’s brother Bhimarao
defendant No. 5 who had gone in adoption to Martand, started
asserting a claim to 7 Mars of land and right of residence
in the family Wada and this had the support of the
plaintiff’s mother Smt. Akkavva. The defendant No. 5
Bhimarao in assertion of his claim brought Special Suit No.
51 of1949, in the Civil Court at Kundgol on the basis of the
properties being impartible. In June 1946, the plaintiff
leased out some home farm lands to defendants 6, 7 and 8,
and this gave rise to proceedings under s. 144 of the Code
of Criminal Procedure, 1898. The Sub-Divisional Magistrate
Kundgol passed an order restraining defendants 2, 3 and 5
from disturbing the possession of defendants 6, 7 and 8 and
this order was kept in force by the former State of
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Jamkhandi till merger in the former State of Bombay in
August, 1948. The State Government revoked the order with
effect from December 15, 1948, as a result of which the
defendents 6, 7 and 8 brought suits for injunction. Due to
discord in the family, the plaintiff left the ancestral
residential house at Kundgol and started residing in his
bungalow. The plaintiff has admittedly been regranted all
the watan land under sub-s. (1) of s. 4 of Act No. 60 of
1950 and s. 7 of Act No. 22 of 1955 as if it were an
unalienated land, being the holder of the watan to which it
appertained, and he is deemed to be an occupant thereof
within the meaning of the Bombay Land Revenue Code, 1879.
The defendants filed separate written statements and
repudiated the plaintiff’s claim of impartibility. They
denied that the suit
349
properties formed an impartible estate and that succession
to the estate was governed by the rule of lineal
primogeniture. The defendant No. 1 asserted that there had
been at least three partitions in the family. According to
him, the allotment of the properties described in Schedules
F and G to the two branches of Gundopant and Lingappa
represented allotment of shares on partition. He pleaded
that all the properties described in Schedules B C D and E
were joint family properties and claimed one-half share
therein. The defendants Nos. 2 and 3, in their written
statement, also asserted that the properties described in
Schedules F and G to the two branches of Gundopant and
Lingappa were shares allotted to them on partition. The
defendant No. 4 supported the case pleaded by her sons
defendants Nos. 2 and 3. The defendant No. 5, however,
pleaded that there had never been a partition in the family
and that the entire properties, that is to say, the
properties described in the plaint Schedules B to G
continued to be joint family properties wherein he claimed
one-fourth share. The remaining defendants also denied that
the suit properties were impartible.
The learned trial Judge rejected the plaintiff’s claim
that he was entitled to remain in full and exclusive
possession and enjoyment of the aforementioned properties
being the watandar of the Kundgol Deshgat Estate and that
other members had no right, title or interest therein except
as to maintenance as junior members and held instead that
properties belonged to the joint Hindu family and were,
therefore, partible. He further held that the properties
described in Schedules F and G in possession of the junior
branches of Gundopant and Lingappa were not allotted to them
as their share on partition and therefore had to be put into
the hotchpotch. He accordingly passed a preliminary decree
for partition, declaring the plaintiff’s share to be one-
twentyfourth of the entire estate and to other minor
reliefs. On appeal, the High Court upheld the judgment of
the trial Judge, holding that the suit properties were not
impartible and were therefore liable to partition, but it
set aside
350
the direction with regard to Schedules F and G properties on
the finding that the two branches of Gundopant and Lingappa
had separated from the joint family. It accordingly modified
the decree of the learned trial Judge and held that the
plaintiff was entitled to one-sixth share in the properties
described in Schedules B to E.
Arguments in these appeals have been confined to the
question as to whether, as a matter of law, even if it were
assumed that the plaintiff had succeeded in proving that the
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Kundgol Deshgat Estate was an impartible estate, and that
succession to it was governed by the rule of lineal
primogeniture, the incident of impartibility of the watan as
well as the rule of lineal primogeniture stand extinguished
by Act No. 60 of 1950 and Act No. 22 of 1955, and it is no
longer open to the plaintiff to make any claim on the basis
of the alleged custom of impartibility or the rule of lineal
primogeniture.
The questions that fall for determination in these
appeals are, firstly, whether the impartibility of the
tenure of a paragana watan appertaining to the office of a
Hereditary District (Paragana) officer in respect of which a
commutation settlement has been effected, regulating
succession to the property, by reason of family custom or a
local custom being the incidents of such watan stands
abolished by virtue of s. 3 of Act No. 60 of 1950 or s. 4 of
Act No. 22 of 1955, and, secondly, whether the watan lands
lost the character of being joint family property with the
resumption of the watan under s. 3 of Act No. 60 of 1950 or
s.4 of Act No. 22 of 1955 and re-grants thereof were
exclusive to the plaintiff under s. 4 of Act No.22 of 1955,
by reason of his status as the watandar and therefore, they
belonged to the plaintiff and were not capable of partition
There is no merit in any of these submissions.
It is argued that impartibility of the tenure was not
an incident of the grant but the watan was impartible by
custom and succession to it was governed by the rule of
lineal primogeniture. Our attention is drawn to the averment
contained in paragraph 3 of the plaint:
"The Kundgol Deshgat Estate, along with the
estates of two other District Hereditary offices of
Nadgir and
351
Deshpande of Kundgol is impartible by custom and
succession to it is governed by the rule of lineal
primogeniture. This custom is ancient, invariable,
definite and reasonable. It is both a family custom and
also a local custom prevailing in the families of
Paragana Watandar of Kundgol
.........................."
It is urged that in case of an impartible estate, the right
to partition and the right of joint enjoyment are from the
very nature of the property incapable of existence and
therefore, the courts below were in error dismissing the
plaintiff’s claim for a declaration that being the present
holder of the office of Desai he was entitled to exclusive
possession and enjoyment of the suit properties. It is
further urged that even assuming that impartibility of the
estate or the rule of primogeniture regulating succession
were an incident of the watan the suit properties lost the
character of being joint family property with the resumption
of the watan and the re-grants of the suit lands were
exclusively to the plaintiff under sub-s. (1) of s 4 of Act
No. 60 of 1950 and sub-s. (1) of s. 7 of Act No. 22 of 1955,
by reason of his status as the watandar and, therefore, they
exclusively belonged to the plaintiff and they were not
capable of being partitioned. There is no merit in the
submission.
The decision of these appeals must turn on the question
whether the impartibility of the estate and the rule of
lineal primogeniture by which succession to it was governed
makes the suit properties the self acquired or exclusive
properties of the plaintiff and, therefore, cannot be
partitioned by metes and bounds between the members of the
joint family. In Martand Rao v. Malhar Rao,(1) the Privy
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Council ruled as follows :
"If an impartible estate existed as such from
before the advent of British Rule, any settlement or
regrant thereof by the British Government must, in the
absence of evidence to the contrary, and unless
inconsistent with the express terms of the new
settlement, be presumed to continue the estate with its
previous incidents of impartibility and succession by
special custom."
It also held in that case :
352
"When there is a dispute with respect to an estate
being impartible or otherwise the onus lies on the
party who alleges the existence of a custom different
from the ordinary law of inheritance, according to
which custom the estate is to be held by a single
member, and as such, not liable to partition. In order
to establish that any estate is impartible, it must be
proved that it is from its nature impartible and
decendible to a single person, or that it is impartible
and descendible by virtue of a special custom."
"Any such special custom modifying the ordinary
law of succession must be ancient and invariable and
must be established to be so by clear and unambiguous
evidence."
The courts below in their well considered judgments
have considered minutely and elaborately the whole of the
evidence, both oral and documentary, led by both the parties
on the question of custom, and have come to a definitive
finding that the evidence is of little or no assistance to
establish the alleged custom pleaded by the plaintiff as to
the impartibility of the estate or the rule of lineal
primogeniture. They have held in favour of the defendants on
this basic issue and substantially dismissed the plaintiff’s
suit claiming full and exclusive title. That part of the
judgment has rightly not been assailed before us, and the
argument has proceeded on the footing that even if the
Kundgol Deshgat Estate were an impartible estate, and that
succession to it was governed by the rule of lineal
primogeniture the incidents of impartibility of the watan as
well as the rule of lineal primogeniture stand extinguished
by Act No. 60 of 1950 and Act No. 22 of 1955.
It has always been the accepted view that the grant of
watan to the eldest member of a family did not make the
watan properties the exclusive property of the person who is
the watandar for the time being. In order to understand the
arguments on this point, it is necessary to deal with the
incidents of a Deshgat watan. In the Bombay Presidency, it
has always been treated to be the joint family property. It
may be worthwhile to refer to the decision of the Privy
Council in Adrishappa v. Gurshindappa,(1) the headnote of
which is that :
353
"Deshgat watan or property held as appertaining to
the office of Desai is not to be assumed prima facie to
be impartible. The burden of proving the impartibility
lies upon the Desai, and on his failing to prove a
special tenure or a family or district or local custom
to that effect, the ordinary law of succession
applies."
In a suit for partition of property forming part of a
Deshgat estate brought by the younger brothers against their
eldest brother who held the hereditary district office of
Desai, partly within the State of Jamkhandi and partly
within the territory of British India, the defence was that
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the watan was held by him as an impartible estate and that
he was entitled being the watandar to be in full and
exclusive possession thereof, subject to a right by custom,
that a brother should receive maintenance out of the income
derived from it. The Court of first instance having found
that there was no invariable rule against the partition of a
Deshgat watan, the High Court refused to allow effect to be
given to what had not been proved to be "the established
governing rule of the family, class or district" sufficient
to establish the impartibility of the estate and held that
the watan in question was subject to the general Hindu law,
including the presumption as to the right to partition
belonging to the members of the family to which it had
descended. The Judicial Committee upheld the decision of the
High Court holding that there was no general presumption in
favour of the impartibility of an estate of this kind as to
shift the burden of proof; the burden of proof was upon the
Desai, who seeks to show that the property devolved upon him
alone, in contravention of the ordinary rule of succession
according to the Hindu law, and that no sufficient evidence
had been given by the watandar either of family custom, or
of district custom, to prevent the operation of the ordinary
rule of law whereby the property would be partible.
In Vinayak Waman Joshi Rayarikar v. Gopal Hari Joshi
Rayarikar & Ors.,(1) the Court of first instance held that
by custom a Deshgat Inam had become impartible and hence
dismissed the suit for partition. On appeal, the High Court
reversed upon the view that the mere fact that the
management remained in the hands of the eldest branch was
not sufficient to
354
establish the plea that the estate was impartible. While
affirming the decision of the High Court, the Privy Council
followed its earlier decision in Adrishappa’s case (supra),
and agreed with the conclusion arrived at by the High Court
that :
"Neither by the terms of the original grant nor of
the subsequent orders of the ruling power, nor by
family custom, nor by adverse possession (if such there
could be in a case like this, the eldest branch of the
family acquired a right to perpetual management of the
village or in consequence to resist its partition)."
It is a trite proposition that property though
impartible may be the ancestral property of the joint Hindu
family. The impartibility of property does not per se
destroy its nature as joint family property or render it the
separate property of the last holder, so as to destroy the
right of survivorship; hence the estate retains its
character of joint family property and devolves by the
general law upon that person who being in fact and in law
joint in respect of the estate is also the senior member in
the senior line.
As observed by Sir Dinshaw Mulla in his celebrated
judgment in Shiba Prasad Singh v. Rani Prayag Kumari Debi &
Ors (1)
"The keynote of the whole position, in their
Lordships view, is to be found in the following passage
in the judgment in the Tipperah case :(2)
"Where a custom is proved to exist, it supersedes
the general" law, which, however, still regulates all
beyond the custom"
"Impartibility is essentially a creature of
custom. In the case of ordinary joint family property,
the members of the family have (1) the right of
partition, (2) the right to restrain alienations by the
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head of the family except for necessity, (3) the right
of maintenance and (4) the right of survivorship. The
first of these rights cannot exist in the case of an
impartible estate, though ancestral, from the very
nature of the estate. The second
355
is incompatible with the custom of impartibility as
laid down in Sartaj Kuari’s(1) case and the first
Pittapur case;(2) and so also the third as held in the
second Pittapur case.(3) To this extent the general law
of the Mitakshara has been superseded by custom, and
the impartible estate though ancestral is clothed with
the incidents of self-acquired and separate property.
But the right of survivorship is not inconsistent with
the custom of impartibility. This right, therefore,
still remains, and this is what was held in Baijnath’s
case.(4) To this extent the estate still retains its
character of joint family property, and its devolution
is governed by the general Mitakshara law applicable to
such property. Though the other rights which a
coparcener acquires by birth in joint family property
no longer exist, the birth-right of the senior member
to take by survivor ship still remains. Nor is this
right a mere spes succession is similar to that of a
reversioner succeeding on the death of a Hindu widow to
her husband’s estate. It is a right which is capable of
being renounced and surrendered. Such being their
Lordships’ view, it follows that in order to establish
that a family governed by the Mitakshara in which there
is an ancestral impartible estate has ceased to be
joint, it is necessary to prove an intention, express
or implied, on the part of the junior members of the
family to renounce their right of succession to the
estate."
Since the decision of the Privy Council in Shiba Prasad
Singh’s case (supra), it is well-settled that an estate is
impartible does not make it the separate and exclusive
property of the holder : where the property is ancestral and
the holder has succeeded to it, it will be part of the joint
estate of the undivided family.
The incidents of impartible estate laid down by the
Privy Council in Shiba Prasad Singh’s case, supra, and the
law as there stated, have been reaffirmed in the subsequent
decisions of the Privy
356
Council and of this Court : Collector of Gorakhpur v. Ram
Sundar Mal & Ors.!(1) Commissioner of Income Tax, Punjab. v.
Krishna Kishore(2) Anant Bhikappa Patil v. Shankar
Ramchandra Patil (3) Chinnathavi Alias Veeralakshmi v.
Kulasekara Pandiya Naicker & Anr(4). Mirza Raja Shri
Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur &
Ors. v. Shri Pushavathi Viseswar Gajapathi Raj & Ors.(5)
Rajah Velugoti Kumara Krishna Yachendra Varu & Ors. v. Rajah
Velugoti Sarvagna Kumara Krishna Yachendra Varu & Ors.(6)
and Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo
& Ors.(7)
In Collector of Gorakhpur v. Ram Sundar Mal’s Case,
supra, it was observed that though the decision of the Board
in Sartaj Kuari’s case and the First Pittapur’s case
appeared to be destructive of the doctrine that an
impartible zamindari could be in any sense joint family
property, this view apparently implied in these cases was
definitely negatived by Lord Dunedin when delivering the
judgment of the Board in Baijnath Prasad Singh’s case. In
Commissioner of Income Tax, Punjab v. Krishna Kishore’s case
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dealing with an impartible estate governed by the Madras
Impartible Estates Act, 1904, it was held that the right of
junior members of the family for maintenance was governed by
custom and was not based on any joint right or interest in
the property as co-owners. In Anant Bhikappa Patil’s case
supra, it was observed that an impartible estate is not held
in coparcenary though it may be joint family property. It
may develove as joint family property or as separate
property of the last male holder. In the former case, it
goes by survivorship to that individual, among those male
members who in fact and in law are undivided in respect of
the estate, who is singled out by the special custom e.g.
lineal male primogeniture. In the latter case, jointness and
survivorship are not as such in point the estate devolves by
inheritance by the last male holder in the order prescribed
by the special custom or according to the ordinary law of
inheritance as modified by the custom.
357
In Chinnathavi’s case. supra, it was observed that the
dictum of the Privy Council in Shiba Prasad Singh case,
supra, that to establish that an impartible estate has
ceased to be joint family property for purposes of
succession, it is necessary to prove an intention, express
or implied, on the part of the junior members of the family
to give up their chance of succeeding to the estate. The
test to be applied is whether the facts show a clear
intention to renounce or surrender any interest in the
impartible estate or a relinquishment of the right of
succession and an intention to impress upon the zamindari
the character of separate property. In Mirza Raja
Gajapathi’s case, supra, it was observed that an ancestral
impartible estate to which the holder has succeeded by the
custom of primogeniture is part of the joint estate of the
undivided Hindu family. Though the other rights enjoyed by
the members of a joint Hindu family are inconsistent in the
case of an impartible estate, the right survivorship still
remains. In Rajah Velugoti Kumara Krishna’s case, supra, it
was observed that the only vestige of the incidents of joint
family property, which still attaches to the joint family
property is the right of survivorship which, of course, is
not inconsistent with the custom of impartibility. In Bhaiya
Ramanuj Pratap Deo’s case, supra, the principles laid down
by the Privy Council in Shiba Prasad Singh’s case were
reiterated.
In the course of argument, great reliance was placed on
the two decisions of this Court in Mirza Raja Ganapathi’s
case, supra and Raja Velugoti Kumara Krishna’s case, supra,
for the proposition that the junior members of a joint
family in the case of an ancient impartible joint family
estate take no right in the property by birth and therefore
have no right of partition having regard to the very
character of the estate that it is impartible. To our mind,
the contention cannot be accepted. Both the decisions in
Mirza Raja Ganapathi’s case, supra, and Raja Velugoti Kumara
Krishna’s case, supra, turned on the provision of the Madras
Estates (Abolition & Conversion into Ryotwari) Act, 1948 and
the Madras Impartible Estates Act, 1904. There are express
provisions made in ss. 45 to 47 of the Abolition Act for the
apportionment of compensation to the junior members of
zamindari estates and sub.s (2) of s. 45 thereof provides
for payment of the capitalised value of the compensation
amount to them on the basis of extinction of the estate. The
scheme of the Abolition Act therefore contemplates the
continued existence of the rights of the holder of an
impartible estate vis-a-vis the junior
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358
members of such an estate. The facts involved in those cases
were also entirely different.
In Mirza Raja Ganapathi’s case, supra it was a suit for
partition for Vizianagram Estate, an ancient impartible
estate governed by the Madras Impartible Estates Act 1904.
The claim of the junior members regarding buildings which
had been incorporated in the impartible estate as also their
claim with regard to jewels treated as state regalia and
therefore impressed with the family custom of impartibility
was negatived. It was held that despite the fact that
Vizinagram Estate had been notified to be an estate within
the meaning of s.3 of the Madras Estate(Abolition and
Conversion into Ryotwari) Act, 1948, the extinguishment of
the proprietary right, title and interest of the zamindar
did not affect his right or title to the impartible
properties outside the purview of that Act and governed by
the Madras Impartible Estates Act, 1904, but as regards
other properties falling within the zamindari including
lands were held to be partible. With regard to the
buildings, it was held that the buildings in question were
not partible by virtue of sub-s. (4) of s. 18 of the Act as
the buildings falling within the section vested in "the
person who owned them immediately before the vesting". The
expression "the person who owned" in sub-s. (4) of s. 18 of
the Act was held to refer to the land-holder and not to any
other person. Further, the buildings were outside the limits
of the zamindari estate and therefore not covered by s. 3 of
the Abolition Act. The claim with regard to jewels failed
because they were part of the impartible estate.
In Raja Velugoti Kumara Krishna’s case, supra, it was a
suit for partition by the junior members of Vankatgiri
Estate, an ancient impartible estate governed by the Madras
Impartible Estates Act, 1904. The suit was principally
confined to the claim for a share to the Schedule B
properties. The contention was that the impartibility was
continued under that Act but ceased when the estate vested
in the State Government under s. 3 of the Madras Estates
(Abolition and Conversion into Ryotwari) Act, 1948 and this
had the effect of changing character of the properties in
the B Schedule and making them partible. It was said that
the junior members had a present right in the impartible
estate and were entitled to share in the properties once it
lost its character of impartibility. The Court had to
consider the effect of the Abolition Act on the rights and
obligations of the members of the family and held
359
that the Abolition Act has no application to properties
which are outside the territorial limit of the Venkatgiri
Estate. The claim that failed was in relation to properties
which did not form part of a ‘zamindari estate’ within the
meaning of s. 1 (16) and therefore did not come within the
purview of s. 3 of the Abolition Act but continued to be
governed by the Madras Impartible Estates Act, 1904.
The contention that the plaintiff holding the District
Hereditary Office of Desai and being the watandar of the
Kundgol Deshgat Estate was entitled to remain in full and
exclusive possession and enjoyment thereof to the exclusion
of the other members of the joint Hindu family, runs counter
to the scheme of the Bombay Hereditary Offices Act, 1874
(for short ‘the Watan Act’), and is against settled legal
principles. The plaintiff’s rights to such watan properties
whatever they were, subject to the rights of the other
members of the family.
The terms ‘Watandar’ is defined in s. 4 of the Watan
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Act.
It reads :
Watandar means a person having a hereditary
interest in the Watan. It includes a person holding
watan property acquired by him before the introduction
of British Government into the locality of the watan,
or legally acquired subsequent to such introduction,
and a person holding such property from him by
inheritance. It includes a person adopted by an owner
of a watan or part of a watan subject to the conditions
specified in sections 33 to 35".
If the words used in the definition are strictly and
literally construed, it would mean that before a person can
be said to be a watandar, he must have a hereditary interest
both in the watan property and in the hereditary office,
because it is these two that constitute the watan. There is
no basis whatever for such a strict construction. The
definition is undoubtedly in two parts : the first sets out
what "watandar" means and the other states what is included
in it and the question arises whether the primary definition
i.e. the meaning portion of it should be regarded as primary
and the inclusive part as illustrative or both the parts
should be regarded as constituting one whole definition, the
inclusive part being supplementary to the former. The
controversy arising from the rival constructions
360
placed on the definition of "watandar" in s. 4 of the Watan
Act was set at rest by the Full Bench decision of the Bombay
High Court in Vijayasingrao Bala Saheb Shinde Desai v.
Janardanrao Narayanrao Shinde Desai.(1) Prior to that
decision, two conflicting constructions on the definition
had been placed by two Division Benches of the Bombay High
Court. In Kadappa v. Krishtappa,(2) an alienation of watan
land by a watandar to his bhaubandh for maintenance was
challenged and Rangnekar and Divatia, JJ. held that the
alienation was valid beyond the life time of the watandar
inasmuch as it was to a watandar of the same watan, in other
words, the alience who was a bhaubandh to whom a watan land
had been transferred for maintenance regarded as a watandar
though he had no interest in the hereditary office and the
rights and privileges attached to it. It would, therefore,
appear that in Kndappa’s case, supra; the entire definition
of watandar in s. 4 was looked upon as one, the latter part
being supplementary and additional to what is contained in
the first part. In Smt. Tarabai v. Murtacharya.(3) Sir John
Beaumont C.J. and Wadia, J. however, struck a discordant
note. It was that a person who merely acquired a watan
property without acquiring the office and without being
under any obligation to perform services attached to the
office was not a watandar within the meaning of the
aforesaid definition; in other words, it held that the first
part of the definition was exclusive and exhaustive, the
latter part being merely illustrative and the illustrations
given in the latter part should fall within the ambit of the
exclusive definition given in the first part, that is to
say, the primary definition of a "watandar" in s.4 was that
he was a person having a hereditary interest in a watan,
i.e. the office and a property if any, and the subsequent
words were merely explanatory of the primary definition and
did not curtail it. In view of this conflict, the specific
question referred to the Full Bench in Vijayasingrao’s case,
supra, was "Whether the term ‘watandar’ as defined in s. 4
of the Watan Act necessarily and always meant a person who
had a hereditary interest not only in the watan property but
also in the hereditary office". And, on a consideration of
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the scheme and the relevant sections of the Watan Act and
the two earlier decisions, the Full Bench preferred the
construction
361
placed on the term ’watandar’ in Kadappa’s case, supra, and
concluded that a person who acquired watan property or held
hereditary interest in it without acquiring the hereditary
office and without being under an obligation to perform the
services attached to each office was also a "watandar’
within the meaning of the Watan Act.
There can be no doubt that the Watan Act was designed
to preserve the pre-existing rights of the members of joint
Hindu family. The word ’family’ is defined in s. 4 of the
Watan Act to include ’each of the branches of the family
descended from an original watandar’ and the expression
’head of a family’ is defined therein to include ’the chief
representative of each branch of a family’. ’Representative
watandar’ defined in s. 4 meant ’a watandar registered by
the Collector under section 25 as having a right to perform
the duties of a hereditary office’. Section 5 of the Watan
Act prohibited alienations of watan and watan rights. Clause
(a) of sub-s. (1) of s. 5. thereof, referred to a watander
in general and provided that it would not be competent to
such a watandar to mortgage, charge, alienate or lease, for
a period beyond the term of his natural life, any watan, or
any part thereof, or interest therein, to or for the benefit
of any person who is not a watandar of the same watan,
without the requisite sanction. The expression ’watandar of
the same watan’ occurs in many sections of the Act. As
already indicated the term ’watandar’ as defined in s. 4
includes the members of a joint Hindu family. It must follow
as a necessary corollary that the expression ’watandar of
the same watan’ would include members of the family other
than the watandar, who were entitled to remain in possession
and enjoyment of the watan property.
It is necessary to emphasize that commutation of
service had not the effect of changing the nature of the
tenure. The effect of the Gordon Settlement came up for
consideration in The Collector of South Satara & Anr. v.
Laxman Mahadev Deshpande & Ors.(1) when the Court referred
to the decision in Appaji Bapuji v. Keshav Shamrav.(2) and
quoted the following passage from the judgment of Sargent,
C.J., with approval:
"What is termed a Gordon Settlement was an
Arrangement-entered into in 1864 by a Committee, of
which Mr.
362
Gordon, as Collector, was Chairman, acting on behalf of
Government-with the watandars in the Southern Maratha
Country, by which the Government relieved certain
watandars in perpetuity from liability to perform the
services attached to their offices in consideration of
a ’judi’ or quitrent charged upon the watan
lands.......... the reports of Mr. Gordon’s Committee
on the Satara and Poona Districts and their
correspondence with Government can, we think, leave no
doubt that the settlements made by that committee,
unless it was otherwise, specially provided by any
particular settlement, were not intended by either
party to these settlements, to convert the watan lands
into the private property of the vatandars with the
necessary incident of alienability, but to leave them
attached to the hereditary offices, which although
freed from the performance of service remained intact."
The Court continued:
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"But the Commutation settlement does not confer an
indefeasible title to the grantee, for the right
affirmed by the settlement under s. 15(2) of the Watan
Act is liable to be determined by lapse, confiscation
or resumption (s. 22 of the Watan Act). The State
having created the watan, is entitled to put an end to
the watan i.e. to cancel the watan and to resume the
grant (1): Bachharam Datta Patil v. Vishwanath Pundalik
Patil.(1) Therefore if there be mere commutation of
service, the watan office ordinarily survives without
liability to perform service, and on that account the
character of watan property still remains attached to
the grant. But the State Government may abolish the
office and release the property from its character as
watan property."
The Court then dealt with the scheme of the Act No. 60
of 1950 and observed that in the light of the incidents of
the watan and the property granted for remuneration of the
watandar, that the relevant provisions of the Act had to be
considered in regard to the right of the watandar to regrant
of the watan lands. It was observed that on a combined
operation of sub-s. (3) of s. 3 and s. 4 of the Act, the
holder of the watan land is entitled to regrant of the land
in occupancy rights as an unalienated land. As to the effect
of the
363
legislation, it was observed that s. 3 in terms provides for
abolition of the watan, extinction of the office and
modification of the right in which the land is held. The
abolition, extinction and modification arise by operation of
s. 3 of the Act, and not from the exercise of the executive
power of confiscation or resumption by the State, and it was
then said:
"Undoubtedly the power of resumption of a watan
may be exercised under s. 22 of the Watan Act and such
a resumption may destroy the right of the holder both
to the office and the watan land, and in the absence of
any provision in that behalf no right to compensation
may arise. But where the abolition of the watan is not
by executive action, but by legislative decree, its
consequences must be sought in the statute which
effectuates that abolition."
As to the effect of the resumption of the watan lands
under sub-s. (3) of s. 3 and their regrant under sub-s. (1)
of s. 4 of the Act it was observed:
"It must be remembered that the power which the
State Government always possessed by the clearest
implication of s. 22 of the Bombay Hereditary Offices
Act, 1874, of resumption is statutorily enforced by s.
3 in respect of the Paragana and Kulkarni Watans. The
State Government having the power to abolish a watan
office, and to resume land granted as remuneration for
performance of the duties attached to the office was
not obliged to compensate the watandar for extinction
of his rights. But the Legislature has, as a matter of
grace, presumably because of settlement between the
holders and the Government under the Gordon Settlement,
provided by s. 6 that cash compensation be awarded for
loss of the right to cash allowance or remission of
land revenue and has by s. 4 conferred upon the holder
of the watan land, for loss of his right, a right to
regrant of the land as occupant and free from the
obligation imposed by its original tenure as watan
land..... But the operation of s. 3 all Paraganas and
Kulkarni watans falling within the Act are abolished,
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the right to hold office is extinguished, and the land
granted as remuneration for performance of service is
resumed. The holder of the land is thereafter liable to
pay land revenue, and is
364
entitled, on payment of the occupancy price at the
prescribed rate, to be regranted occupancy rights as if
it is unalienated land. The right so conferred is,
though not a right to cash compensation, a valuable
right of occupancy in the land. By the resumption of
watan land and regrant thereof in occupancy right, all
the restrictions placed upon the holder of watan land
are by the provisions of the Watan Act, and the terms
of the grant, statutorily abolished. But the right of
occupancy granted by s. 4 adequately compensates the
holder for loss of the precarious interest of a
watandar, because the land regranted after abolition of
the watan, is held subject only to the restrictions
imposed by sub-s. (2) of s. 4, and is freed from the
incidents of watan tenure, such as restriction on
alienation beyond the life time of the holder,
devolution according to the special rule of succession,
and the liability to consideration or resumption."
It must therefore be observed that the commutation of
service under sub-s. (1) s. 15 of the watan lands by which
the watandars were relieved in perpetuity from liability to
perform the services attached to their offices in
consideration of ’judi’ or quit-rent charged upon the watan
land, unless where it was otherwise provided for, had not
the effect of converting watan land into the private
property of the watandars with the necessary incident of
alienability but to leave them attached to the hereditary
offices which, although freed from the performance of
services, remained intact. Despite commutation of service,
the office of watandars ordinarily survived without
liability to perform service, and on that account the
character of the watan lands still remained attached to the
grant. By the end of the first half of the 19th century, the
watandars had lost much of their raison d’etre. The British
thought it expedient to dispense with their services and the
watandars were given an offer to convert their watans into
private property by the annual payment of a Nazrana but they
were opposed to this. At their own request, the Government
agreed to continue their watans as unalienable after the
service commutation settlements, subject to payment of
’judi’ or quit-rent. After the service commutation
settlements and the appointment of Mamlatdars, the watandars
had practically no function to perform but the watans were
not discontinued till the Government decided upon their
abolition.
365
It is said that although co-ownership of the joint
family may exist in impartible property, a distinction must
be drawn between present rights and future rights of the
members of a family. This is because of the peculiar
character of the property. Thus, while the junior members
have future or contingent rights such as right of
survivorship, they have, apart from custom or relationship,
no present rights, as for instance, a right to restrain
alienation or to claim maintenance. It is upon this basis
that the submission is that the courts below manifestly
erred in passing a decree for partition of the watan
property described in Schedules B and C appended to the
plaint. We are afraid, these submissions based upon the
alleged impartibility of the watan properties or the
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applicability of the rule of lineal primogeniture regulating
succession to the estate cannot prevail, as these being
nothing more than incidents of the watan, stand abrogated by
sub-s. (4) of s. 3 Act No. 60 of 1950 and s. 4 of Act No. 22
of 1955.
It seems plain to us that the effect of Act No. 60 of
1950 and Act No. 22 of 1955 was to bring out a change in the
tenure or character of holding as watan land but they did
not affect the other legal incidents of the property under
personal law. It will be convenient to deal first with the
provisions of Act No. 60 of 1950. Section 3 of the Act lays
down that, with effect from, and on, the appointed day,
notwithstanding anything contained in any law, usage,
settlement, grant, sanad or order, all watans shall be
deemed to have been abolished and all rights to hold office
and any liability to render service appertaining to the said
watans shall stand extinguished. It further lays down that
subject to the provisions of s. 4, "all watan land is hereby
resumed" and "shall be deemed to be subject to the payment
of land revenue under the provisions of the Code and the
rules made thereunder as if it were an unalienated land".
The term ’Code’ as defined in s. 2 (b) means "the Bombay
Land Revenue Code, 1879". All incidents pertaining to the
said watans stand extinguished from the appointed day.
Sub-s. (1) of s. 4 of the Act, insofar as material,
provides:
"4 (1). A watan land resumed under the provisions
of this Act shall....... ..be regranted to the holder
of the watan to which it appertained, on payment of the
occupancy price......... and the holder shall be deemed
to be an occupant within the meaning of the Code in
respect of
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such land and shall primarily be liable to pay land
revenue to the State Government in accordance with the
provisions of the Code and the rules made thereunder;
all the provisions of the Code and rules relating to
unalienated land shall, subject to the provisions of
this Act, apply to the said land."
Clause (2) of Explanation to s. 4 reads:
"Explanation-For the purposes of this section the
expression "holder" shall include-
(i) all persons who on the appointed day are the
watandars of the same watan to which the land
appertained, and
xx xx xx
The provisions of Act No. 22 of 1955 are more or less
similar. Likewise, s. 4 of the Act provides that,
notwithstanding anything contained in any usage, settlement
grant etc., with effect from the appointed day, all
alienations shall be deemed to have been abolished and all
rights legally subsisting on the said date in respect of
such alienations and all other incidents of such alienation
shall be deemed to have been extinguished. Section 7 of the
Act provides that "all land held under a watan is hereby
resumed" and "shall be regranted to the holder in accordance
with the provisions contained in sub sections (1) to (3)
therein. Clause (1) of Explanation to s. 7 reads:
"Explanation-For the purpose of this section, the
expression "holder" shall include-
(1) an alienee holding land under a watan, and
(2) xx xx xx xx
Upon a plain reading of sub-s. (1) of s. 4 of Act No.
60 of 1950 and of s. 7 of Act No. 22 of 1955, it is clear
that watan lands resumed under the provisions thereof, have
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to be regranted to the holder of the watan, and he shall be
deemed to be an occupant within the meaning of the Code in
respect of such land.
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The expression ’holder’ as defined in cl. (i) Explanation to
s. 4 of the former Act includes "all persons who, on the
appointed day, are the watandars of the same watan" and cl.
(1) of Explanation to s. 7 of the latter Act defines it to
include ’an a lienee holding land under a watan". The term
"an alienee" is defined in s. 2 (1) (iii) to mean "the
holder of an alienation and includes his co-sharer".
The Watan Act contemplated two classes of persons. One
is a larger class of persons belonging to the watan families
having a hereditary interest in the watan property as such
and the other a smaller class of persons who were appointed
as representative watandars and who were liable for the
performance of duties connected with the office of such
watandars. As already indicated, it would not be correct to
limit the word "watandar" only to this narrow class of
persons who could claim to have a hereditary interest both
in the watan property and in the hereditary office. Watan
property had always been treated as property belonging to
the family and all persons belonging to the watan family who
had a hereditary interest in such watan property were
entitled to be called "watandars of the same watan" within
the Watan Act. That being so, the members of a joint Hindu
family must be regarded as holders of the watan land along
with the watandar for the time being, and therefore the
regrant of the lands to the watandar under sub-s. (1) of s.
4 of Act No. 60 of 1950 and under s. 3 of Act No. 22 of 1955
must enure to the benefit of the entire joint Hindu family.
It appears that the same view has been taken in a Full
Bench decision of the Bombay High Court in Laxmibai Sadashiv
Date v. Ganesh Shankar Date(1).
A controversy had arisen as to the purport and effect
of the non-obstante clause contained in s. 4 of the Bombay
Inferior Village Watans Abolition Act, 1959. Malvankar, J.
in Dhondi Vithoba v. Mahadeo Dagdu(2) held that the effect
of sub-s. (3) of s. 4 read with s. 5 of the Act was to bring
about a change in the tenure or character of holding as
Watan land, but it did not affect the other legal incidents
of the property under personal law. The learned Judge
therefore held that even though the watan was abolished and
the incidents thereof were extinguished and the land resumed
under
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s. 4, the Act maintained the continuity of the interest in
the lands of persons before and after the coming into force
of the Act provided, of course, the holder pays occupancy
price in respect of the land. In other words, the property
continues to be the joint family property or the property
held by the tenants-in-common, as the case may be. In
Kalgonda Babgonda v. Balgonda,(1) a Division Bench of the
High Court took a view to the contrary and observed:
"The words "all incidents appertaining to the said
watans shall be and are hereby extinguished", must
include every kind of incident, including the so-called
incident of a right to partition as claimed by the
plaintiff in this case, even if such right existed.
Further, the lands were resumed by the Government on
that date in law and vested in the Government till the
lands were re-granted under s. 5 or 6, or 9 of that
Act."
xx xx xx xx
"It is not possible for us to consider it
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reasonable to held that although the lands were resumed
by the Government and the holder himself had lost all
his rights till the lands were re-granted to him except
the right of asking, for re-grant, the incidents of the
property under personal law appertaining to impartible
property would survive the extinguishment of the tenure
and resumption of the land by the State."
It was obviously wrong in reaching the conclusion that it
did.
In Laxmibai Sadashiv Date’s case, supra, the Full Bench
reversed the decision of the Division Bench and upheld the
view taken by Malvankar, J. in Dhondi Vithoba’s case, supra,
observed:
"It is undoubtedly true that s. 4 starts with a
non-obstante clause, but it is a well recognised canon
of construction to give effect to non-obstante clause
having regard to the object with which it is enacted in
a statute. The non-obstante clause is contained at the
inception of s. 4 and the sole object of s. 4 is to
abolish alienation and rights and incidents in respect
thereof. The right of a member of joint Hindu family to
ask for partition of a joint family
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property cannot be regarded as a right relating to
grant of land as service inam or as an incident in
respect thereof.
xx xx xx xx
The object of s. 4 was not to affect in any manner
rights created under the personal law relating to the
parties and if the property belonged to joint Hindu
family, then the normal rights of the members of the
family to ask for partition were not in any way
affected by reason of the non-obstante clause contained
in s. 4."
These observations, in our opinion, are clearly in
consonance with the true meaning and effect of the non-
obstanate clause.
It still remains to ascertain the impact of sub-s (2)
of s. 4 of Act No. 60 of 1950 and sub-s. (3) of s. 7 of Act
No. 22 of 1955, and the question is whether the occupancy of
the land regranted under sub-s. (1) of s. 4 of the former
Act and sub-s. (2) of s. 7 of the latter Act is still
impressed with the character of being impartible property.
All that these provisions lay down is that the occupancy of
the land regranted under sub-s. (1) of s. 4 of the former
Act shall not be transferable or partible by metes and
bounds without the previous sanction of the Collector and
except on payment of such amount as the State Government
may, by general or special order, determine. It is quite
plain upon the terms of these provisions that they impose
restrictions in the matter of making alienations. On regrant
of the land, the holder is deemed to be an occupant and
therefore the holding changes its intrinsic character and
becomes Ryotwari and is like any other property which is
capable of being transferred or partitioned by metes and
bounds subject, of course, to the sanction of the Collector
and on payment of the requisite amount.
It is the policy of the law to prevent the land-working
classes being driven into the state of landless proletariats
so far as may be, and accordingly it is provided by these
provisions that alienations of such holdings or partition
thereof shall be ineffective unless the sanction of the
Collector has first been obtained. It is of the utmost
importance that this important safeguard should be
maintained in full force and effect so that the parties must
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exactly know what they have bargained for. The condition for
the grant of sanction by the Collector as a pre-requisite
for a valid transfer of a holding or the
370
making of a partition by metes and bounds, is to ensure that
the actual tiller of the soil is not deprived of his land
except for valid consideration, or that the partition
effected between the members of a family is not unfair or
unequal. These provisions therefore do not create a
statutory bar to a transfer or a partition once the
conditions mentioned therein are fulfilled.
In the result, the appeals must fail and are dismissed.
There shall however be no order as to costs.
P.B.R. Appeals dismissed.
371