Full Judgment Text
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PETITIONER:
ANNASAHEB BAPUSAHEB PATIL & ORS. ETC. ETC.
Vs.
RESPONDENT:
BALWANT AND BALASAHEB BABUSAHEB PATIL(DEAD) BY LRS. & HEIRS
DATE OF JUDGMENT06/01/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
MOHAN, S. (J)
VENKATACHALA N. (J)
CITATION:
1995 AIR 895 1995 SCC (2) 543
JT 1995 (1) 370 1995 SCALE (1)100
ACT:
HEADNOTE:
JUDGMENT:
1. This batch of appeals raise common question of law,
though the High Court of Bombay had decided several appeals
by separate judgments. On this account they have been
tagged together and were referred to three Judge Bench. We
propose to dispose them of by common judgment. The facts in
Civil Appeal No.32/80 are sufficient to decide the question
of law. One Bapu Anna Patil (for short B.A. Patil), father
of Anna Saheb, the first appellant/1st plaintiff and Balwant
alias Balasaheb, the first defendant, deceased 1st
respondent in Special Civil Suit No.79/67 on the file of
Civil Judge (Senior Division) Kolhapur, died on October 31,
1956. Balwant was the eldest male member in the joint
family consisting of himself and Anna Saheb. Their sister
is Laxmibai, 4th defendant. It is now an admitted fact that
all other properties ’ except two items of the agricultural
lands bearing R.S. Nos.359 and 172/8 situated in the village
Rukadi of a total extent of 15 acres and 20 gunthas,
attached to the Patel watan, were partitioned by metes and
bounds. The watan properties attached to the office of
Patel, by rule of primogeniture, became impartible. The
Maharashtra Revenue Patels (Abolition of Office) Act, 1962
(for short ’the Act’) came into force on January 1, 1963.
The Patel watans, by operation of s.3, stood abolished.
Thereafter, Balwant, being eldest member of the family,
obtained a re-grant under s.5 of the Act. The appellants
filed the suit for partition and allotment of half share
therein. The trial court decreed the suit and a preliminary
decree was made for division of 15 acres and 20 gunthas in
equal moities. In First Appeal No. 162/69 by judgment and
decree dated June 28, 1977, the Division Bench of the High
Court following its earlier decision in Kalgonda Babgonda v.
Balgonda Kalgonda, 78 Bom. L.R.720, allowed the appeal and
set aside the decree.
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The High Court held that after the re-grant under the Act,
the properties became personal property of Balwant and that
there fore, they were not partible.
2.Section 2(e) defines ’Patel watan’ to mean the office of
patel of a village held hereditarily under the existing
watan law, together with the tenure of watan property, if
any, and the rights, privileges and liabilities attached
thereto. ’Existing Watan law’ defined under s.2(d) to mean,
in relation to any area, includes any enactment, Ordinance,
Rule, Bye law, Regulation, order, notification, Vat-Hukum or
any instrument, or any custom or usage having the force of
law, relating to patel watans, and which is in force in that
area immediately before the appointed day. Appointed day is
defined under s.2(1)(a) to mean the date of commencement of
the Act. ’Representative watandar’ is defined under s.(i)
to mean a watandar registered or recognised under the
existing watan law, as having a right to perform the duties
of the hereditary office of patel of a village. ’Watandar’,
defined in (k), means a person having under the existing
watan law a hereditary interest in patel watan of a village
provided that, where any watan has been entered in a
register of record under the existing watan law as held by
the whole body of watandars, the whole of such body shall be
deemed to be a watandar. ’Watan land’ has been defined
under s.2(1)(1) as the land forming part of watan property.
’Watan property’ has been defined under s.2(1)(m) including
the movable and immovable property held, acquired or as-
signed under the existing watan law for providing
remuneration for the performance of the duty appertaining to
the hereditary office of patel of a village, and includes
cash payments made voluntarily by the State Govt. and
subject to periodical modification or withdrawal. Section 3
abolishes watans postulating that notwithstanding anything
in any usage, custom, settlement, grant, agreement, or
sanad, or in any decree or order of a court, or in the
existing watan law, with effect from the appointed day
.LM15
(a) all patel watans shall be and are hereby abolished;
(b) all incidents appertaining to the said watans
(including the right to hold office and watan property and
the liability to render service) shall be and are hereby
extinguished;
(c) subject to the provisions of sections 5, 6 and 9, all
watan lands shall be and are hereby resumed, and accordingly
shall be subject to the payment of land revenue under the
provisions of the relevant Code and the rules made
thereunder, as if they were unalienated land. The proviso
is not relevant for the purpose of this case. Hence
omitted.
Under s.4, the Collector is to decide any question
enumerated in clauses (a) to (e) that arise between the
parties, after giving to the affected party an opportunity
of being heard and after holding an inquiry. His decision
on the question, subject to a decision on appeal to the
State Government, shall be final. Sub-s. (1) of s.5
envisages that watan land resumed under s.3 shall, on an
application (in cases not falling under ss. 6 and 9), be
regranted to the watandar of the watan to which it apper-
tained, on payment by or on behalf of the watandar to the
State Govt. of the occupancy price equal to twelve times the
amount of the full assessment of such land, within the
prescribed period,and in the prescribed manner, and the
watandar shall
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thereupon be an occupant within the meaning of the Revenue
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Code in respect of such land, and shall be primarily liable
to pay land revenue to the State Govt. in accordance with
the provisions of that Code. The proviso is not relevant
for the purpose of this case. Hence omitted.
3. Under sub-s.(3), the previous sanction of the Collector
is mandatory for transfer or partition by metes and bounds
of the occupancy of the land regranted under sub-s.(1) of
s.5. The other provisions are not material for the purpose
of this case. Hence omitted. By operation of s.3 read with
s.5 notwithstanding anything in any usage, custom,
settlement, grant, agreement or sanad, or in any decree or
order of a court, or in the existing watan law, with effect
from January 1, 1963, not only patel watans have been
abolished but also all incidents appertaining to the said
watans including the right to hold office and watan property
and the liability of the watandar to render service shall be
and thereby extinguished. Under sub-s.(1) of s.5, the lands
resumed under s.3 shall be regranted to the watandar of the
watan to which it appertained, on payment by or on behalf of
the watan to the State Govt. of the occupancy price
enumerated therein. Watandar thereupon shall be an occupant
for the purpose of the Code and shall be primarily liable to
pay land revenue to the State Govt. under the Code. Any
alienation or partition of the occupancy of the land
regranted under s.5(1) shall be only with the previous
sanction of the Collector and subject to the terms contained
in sub-s.(3) of s.5.
4. The question, therefore, is whether on regrant made
under sub-s.(1) of s.5, the attached watan lands assumed the
character of the self-acquired property of Balwant, the
watandar? It is contended by Sri Lalit, the learned Senior
counsel who led the arguments in the batch of appeals of the
watandars that after the abolition of the patel watan and
regrant made in 1965 in favour of Balwant, in consequence of
the abolition of the watan, and the burden of service
attached to the office, the preexisting rights and
liabilities appertained to the land stood abolished; the
regrant and the terms contained therein determine the rights
of the parties. Since it was a regret made personal to the
watandar, the property became his self-acquired property.
After the Hindu Succession Act, 1956 has come into force, it
has become the self-acquired property in terms of the sanad
and Balwant was responsible to the State government for
payment of the land revenue. Therefore, the property is the
personal property of Balwant, Kolhapur Dist. bears a
distinctive feature of the watandari rights and that,
therefore, it is necessary to find the existence of the
watan from the grant and not to subject it to operation of
s.3 of the Act. B.A. Patil having died in 1956, the right
to succession opened, on his demise under the law of
primogeniture. The junior member of the family, by custom,
has no right to any share in the property. The property
thereby vested in Balwant in the year 1956 and his heirs
alone are entitled to succeed to the estate of Balwant. The
appellants, therefore, have no right to claim any partition
in the property. We find no force in the contention. The
questions raised are no longer res integra. Primogeniture
means first born and denotes the preferential rights of the
senior most in age to succeed to the estate, since senior
most in age is entitled to succeed to the estate in
preference to his younger brother. In an impartible estate
377
though the other rights which a coparcenar acquires by birth
in joint family property do not exist, right by birth of the
senior member to take by survivorship still remains. In
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order to establish that a family governed by Mitakshra in
which there is an 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. It is not
sufficient to show a separation merely in food and
residence. The custom or special law displaces the rule of
succession by survivorship of the Hindu joint family.
5.In Dattatraya & Ors. v. Krishna Rao & Ors., 1993 supp. (1)
SCC 32, a two Judge Bench of this Court to which one of us
(K. Ramaswamy, J.) was a Member, was to consider the rule
of primogeniture extensively and held at p.39 that there are
estates which by special law or custom descend to senior-
most member of the family, generally the eldest, to the ex-
clusion of the other members and which are impartible,
though they are joint family property, in the eye of the
law, belonging equally to the other members; and their
rights are hedged in by a number of restrictions or
limitations. It was further held at p.42 in para 18 that
the impartible estate, though descends by rule of
primogeniture and survivorship on the eldest male member of
the family, it must also be proved that the junior members
gave up expressly or by implication his right to a share
therein. An impartible estate may be created by a grant or
by custom. It is a creature of custom. In the case of
ordinary joint family property, the members of the family
have the right to partition and the right of survivorship.
The right to partition cannot exist in the case of
impartible estate. The pre-existing law attached the
property, movable or immovable, by grant etc. to the watan
for rendering service by the watandar. As its concomitance
recognised the rule of primogeniture and by its operation,
the eldest male member in the family or the eldest in the
first branch gets the right to watan and the property
attached to the watan would be enjoyed as an incidence of or
consequential to his rendering watan service. The statute
also can abrogate the operation of the custom and succession
to watan property by rule of primogeniture and the Act in
fact did achieve that object, abolished the office of watan
and liabilities appertaining to it including the burden of
service and made the lands ryotwari lands. On regrant the
erstwhile watandar holds the lands for and on behalf of the
Hindu joint family impressed with the character as joint
family property.
6.This Court in Nagesh Bisto Desai etc. etc. v. Khando
Tirmal Desai etc. etc., 1982 (3) SCR 341, considered the
effect of the Bombay Merged Territories Miscellaneous
Alienations Abolition Act 1955, the pre-existing rule of
primogeniture, the consequences of the abolition under that
Act and the resultant effect thereof It was also contended
therein that Kundgol Deshgat Estate was an impartible estate
and its succession was governed by the rule of lineal
primogeniture consequent to the abolition of the watan under
the Act 22 of 1955. The question for consideration therein
was whether the impartibility of the tenure of a paragana
watan appertaining to the office of a Hereditary District
(Paragana) Officer by reason of family custom or a local
custom, whether watan lands lost the character of being
joint family property with the resumption of the
378
watan under s.4 of that Act and regrant thereof and whether
the lands were exclusive to the watandar by reason of his
status as watandar and whether they were not capable of
partition.
7. A Bench of three Judges after exhaustive consideration
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had held 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. The 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. He is
also the senior member in the senior line. Impartibility is
essentially a creature of custom. In the case of ordinary
joint family property, the 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 survivorship still remains. 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. The
estate though 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 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. Junior members of the joint family, in the
case of 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. The expression watandar of the same watan
includes the members of a joint Hindu family other than the
watandar, who were entitled to remain in possession and
enjoyment of the watan property. The holder of the watan
land is entitled to regrant of the land in occupancy rights
as an unalienated land. The abolition of the watan
extinguishes the office and modifies the right in which the
land is held.
8.The abolition, extinction and modification arise by
operation of s.3 of 1955 Act was held not from the exercise
of the executive power of confiscation or resumption by the
State Government. The commutation of service of watan lands
by which the watandars were relieved in perpetuity from
liability to perform the services attached to their offices
in consideration of payment of the land revenue. The lineal
primogeniture regulating succession to the estate cannot
prevail under s.4 of 1955 Act, as being nothing more than
incidents of the watan which stand abrogated by s. 4 of that
Act. It was, therefore held that watan families if had a
hereditary interest in the watan property, such inheritance
enures to the benefit of all the members of the family as
the property belongs to the family and all persons belonging
to the watan family who had a hereditary interest in such
watan property were entitled
379
to be called ’watandars of the same watan’ within the Watan
Act. The members of the 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 s.4 of that Act must enure to the benefit of
the entire joint Hindu’ family. This Court upheld the full
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bench judgment of the Bombay High Court reported in Laxmibai
Sadashiv Date v. Ganesh Shankar Date, 79 Born. L.R. 234 and
another judgment in Dhondi Vithoba v. Mahadeo Dagdu, 75 Bom.
L.R. 290. The division bench judgment in, Babgonda’s case
was over-ruled.
9. The same ratio proprio vigore would apply to the
facts in this case as well. It is seen that by operation
of s.3 Watans have been abolished and all the incidents
attached to the watandari including the preexisting. custom,
operation of law or any decree or order of the court were.
nullified by statutory operation. Thereby, the incidents
attached to the watan i.e. liability to render service as
patel became extinct and the lands became ryotwari lands,
office of watan stood extinguished, the lineal primogeniture
stood abolished and the land on regrant became the Hindu
joint family property held by the watandar for and on behalf
of the members of the joint Hindu family. All the members
of the family became entitled to claim right to partition by
survivorship. The Act had come into force on January 1,
1963 after the Hindu Succession Act, 1956, became
operational. Therefore, after the death of the father in
1956 and the right to succession as watandar opened to the
senior lineal male descendant i.e. Balwant as per the
existing watan law. The regrant was made in 1965 in which
year the right to claim partition accrued to all the members
of the family. Thereby, Anna Saheb, plaintiff No.1 became
entitled to claim 1/2 share in 15 acres 20 gunthas along
with his brother Balwant. In Kalgonda Babgonda Patil v.
Balgonda Kalgonda Patil & Ors., 1989 supp. (1) SCC 246, a
bench of this Court reversed the judgment of the division
bench of the High Court following the ratio in Nagesh B.
Desai,s case. This case relates to patel watan property of
wat-hukum by Kolhapur State. In Anant Kibe v. Purushottam
Rao, AIR 1984 SC 1121, another bench of three judges
considered the effect of the rule of primogeniture and
impartibility of the estate as a special mode of devolution
under the M.P. Reserved (Inam lands) and M.P. Land Revenue
Code and held that the inam lands together with the
properties acquired from the income of the inam were ances-
tral joint family property, though impartible estate which
devolved by survivorship by the rule of lineal primogeniture
after the inam lands were abolished, the property became the
joint family property. Consequently it became partible.
The plaintiffs were held to be entitled to partition and
separate possession to the extent of their 1/2 share in
those properties. We do not find any ground to refer the
case to five Judges for decision. In Shivappa Tammanappa
Karaban v. Parasappa H. Kuraban & Ors., 1994 (4) Scale 750,
a bench of two Judges (K. Ramaswamy and N. Venkatachala,
JJ.) following Nagesh B. Desai’s case and Nalgonda’s case
upheld the right to partition by the junior members after
the Karnataka Village Officers Abolition Act, 1961 came into
force. In Shiddappa Satappa Murugude & Ors. v. Ramappa S.
Murugude & Ors., C.A. No.944 of 1973 by a judgment dated No-
vember 25, 1986, two Judge Bench held
380
that it is not a joint family property but separate property
of the watandar. Nagesh B. Desai’s case and Anand Kibe’s
case decided by two benches of three judges were not brought
to the notice of the bench. Therefore, with due respect,
the ratio therein cannot be regarded as good law. The ratio
in Bandu Kallappa Patil & Ors. v. Balagonda S. Patil, 1971
(1) SCJ 429 is equally inapplicable to the facts of this
case. In that case the question was under the pre-existing
law prior to the abolition and that therefore, a bench of
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two judges of this Court held that Wat-Hukum enures to the
family of the Watan lands as Natmastha.
10. Undoubtedly, by operation of Wat Hukum, an enquiry into
heirship was conducted and the eldest son of the deceased
Watandar was declared as his successor (Navawala), and he
succeeded to the Watan property attached to the office as
successor by inheritance. That the operation of the pre-
existing law, customary or codified would be subject to
operation of the Hindu Succession Act, 1956 and the
inconsistent law prevalent in (the then) Kolapur State stood
repealed. As held earlier, by rule of lineal primogeniture,
the Hindu Succession Act stood excluded until the watan
together with the burden of service abolished. After
regrant was made, the property becomes coparcenary and is
liable to partition among coparcenars. The contention,
therefore, that the provisions of Kolapur Hindu Succession
Act, 1920, becomes operational and the interpretation
thereon made prior to the Act and the Hindu Succession Act
came into force, bears no relevance.
11. The trial court, therefore, had rightly granted the
preliminary decree and the division bench of the High Court
had committed manifest error of law in following the
judgment which was subsequently over-ruled by this Court.
The appeal is accordingly allowed and the decree of the
trial court stands restored and that of the appellate court
stand reversed.
Vilas G. Dalvi
v
Ramchandra Y. Dalvi & Ors.
Civil Appeal No.2267/80
12. The ratio of our judgment in above appeals would
equally apply to the facts in this case. However, one more
contention raised in this appeals is that the defendants
have acquired title by prescription. It was pleaded that
mutations was effected on August 16, 1955 and from that date
the defendants, it was averred, were in exclusive possession
and enjoyment and that after the abolition of the watan
under Merged Territories Miscellaneous Alienations Abolition
Act, 1955 after regrant, it was their exclusive property and
that there fore, they prescribed title by adverse pos-
session. That contention is negative, the appellate court
and the High Court.
13. Article 65 of the Schedule to the Limitation Act, 1963
prescribes that for possession of immovable property or any
interest therein based on title, the limitation of 12 years
begins to run from the date of the defendant’s interest
becomes adverse to the plaintiff. Adverse possession means
a hostile assertion i.e. a possession which is expressly or
impliedly in denial of title of the true owner. Under
Article 65, burden is on the defendants to
381
prove affirmatively. A person who bases his title on
adverse possession must show by clear and unequivocal
evidence i.e possession was hostile to the real owner and
amounted to a denial of his title to the property claimed.
In deciding whether the acts, alleged by a person,
constitute adverse possession, regard must be had to the
animus of the person doing those acts which must be
ascertained from the facts and circumstances of each case.
The person who bases his title on adverse possession,
therefore, must show by clear and unequivocal evidence i.e.
possession was hostile to the real owner and amounted to a
denial of his title to the property claimed.
14. Where possession could be referred to a lawful title,
it will not be considered to be adverse. The reason being
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that a person whose possession can be referred to a lawful
title will not be permitted to show that his possession was
hostile to another’s title. One who holds possession on
behalf of another, does not by mere denial of that other’s
title make his possession adverse so as to give himself the
benefit of the statute of limitation. Therefore, a person
who enters into possession having a lawful title, cannot
divest another of that title by pretending that he had no
tide at all.
15. In the case of a Hindu joint family, there is a
community of interest and unity of possession among all the
members of the joint family and every coparcener is entitled
to joint possession and enjoyment of the coparcenery prop-
erty. The mere fact that one of the coparceners is not in
joint possession does not mean that he has been ousted. The
possession of the family property by a member of the family
cannot be adverse to the other members but must be held to
be on behalf of himself and other members. The possession
of one, therefore, is the possession of all. The burden
lies heavily on the member setting up adverse possession to
prove adverse character of his possession by establishing
affirmatively that to the knowledge of other member he
asserted his exclusive title and the other members were
completely excluded from enjoying the property and that such
adverse possession had continued for the statutory period.
Mutation in the name of the elder brother of the family for
the collection of the rent and revenue does not prove
hostile act against the other. The right of the plaintiff
to file suit for partition had arisen after the Act has come
into force and regrant was made by the Collector under sub-
s.(1) of s.5. The defendant, therefore, must plead and prove
that after the regrant, he asserted his own exclusive right,
title and interest to the plaint schedule property to the
knowledge of the plaintiff and the latter acquiesced to such
a hostile exercise of the right and allowed the defendant to
remain in continuous possession and enjoyment of the
property in assertion of that hostile tide during the entire
statutory period of 12 years without any let and hindrance
and the plaintiff stood thereby.
16. It would be seen that until the character of the land
is changed, by operation the rule of lineal primogeniture,
the lands became impartible. Therefore, the plaintiff
therein could not claim any right for partition. After the
Act has come into force and on making regrant cause of ac-
tion had arisen to file suit for partition. There is no
pleading and proof that the defendants asserted their
hostile title to the property to the knowledge of the
plaintiff
382
and they acquiesced in the same. In its absence the right
to claim partition would arise only when the right to
partition is denied. The character of the land from
impartibility to partibility had been changed under the Act.
Thereby, both the courts have rightly held that they did not
acquire title by adverse possession. This appeal also
accordingly stands dismissed.
Natha L. Gharage & Ors
v.
Rajaram A. Gharage & Ors.
Civil Appeal No.2485/85
17. In this case apart from the main question which was
already held against the appellants, two more contentions
were raised in the High Court. They filed an application in
the High Court under Order 6 Rule 17 for amendment of the
written statement to include some other land for re-
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partition. On ground of laches, the application for
amendment was disallowed. The same was reiterated in this
appeal. In view of the findings recorded by the High Court,
we do not think that it is a fit case warranting
interference by this Court at this distance of time. It was
also pleaded that the suit was barred by limitation. It is
their case that the partition had taken place prior to the
Act 22/85 had come into force, they remained in possession
as owners and that, therefore, the suit is barred by limita-
tion. The appellate court disbelieved prior partition.
That was also negatived by the High Court holding that the
suit was filed after the character of the land from
impartibility to partibility had been changed and that,
therefore, it was not barred by limitation. We find that
the conclusion reached by the High Court is well justified.
The High Court and the appellate court have appreciated the
evidence and reached the conclusion, therefore, this Court
does not embark upon the appreciation of evidence. The
appeal also since tagged with C.A.32/80, the controversy and
the question of law stand concluded by the decision rendered
hereinbefore. The appellate court remitted the matter for
reconsideration whether the alienation made by the first
appellant in favour of the appellants 2 to 8 and respondent
No.? were for legal necessity. That was upheld by the High
Court. Therefore, subject to the above, the judgment of the
High Court and the appellate court are upheld. The appeal
is accordingly stands dismissed.
Rajaram K. Powar & Ors.
v
Dinkarrao K. Powar & Ors.
Civil Appeal No.3200-01/91
18.The only question raised was with regard to the character
of the land and the right to partition. Since the appeals
were tagged with C.A.32/80, the controversy gets concluded
with the question of law decided in C.A.32/80, therefore,
the appeals also stand dismissed.
Pandurang B. Sarnobat
v
K.L. Sarnobat (Dead) By Lrs. & Ors
Civil Appeal No.2557/93
The High Court in Second Appeal
383
No.1277/73, construing the terms of the sanad, held that it
is a personal property for the benefit of the watandar in
Act 22 of 1955. The property assumed the character of self-
acquired property and that, therefore, the properties are
not liable to partition and on its basis reversed the decree
of the trial court and the appellate court. On the question
of law, the appeal was tagged with C.A.32/80. In view of the
decision therein for the same reasons, this appeal also
stands allowed. The further contention that documents are
required to be looked into to find the chequered history
involved in the interpretation thereof is untenable since
the question of de-tagging the appeal does not arise. The
terms of Sanad Ex.70 and 71 and the interpretation placed on
them by the High Court in reversing the decree of the courts
below primarily hinge upon the interpretation of the
provisions of Act 22 of 1955 which was already settled by
this Court. The High Court did not have the benefit of its
Full Bench decision and of the decision of this Court which
led to the wrong view taken by the High Court. The appeal
is accordingly allowed. For the reasons stated in
C.A.No.32/80 (supra), the appeal is allowed and the judgment
and decree of the High Court dated November 7, 1981 made in
Second Appeal No. 1177/73 are set aside and that of the
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trial court and of the appellate court stand restored.
20. In view of the facts and circumstances, parties are
directed to bear their respective costs throughout in all
these appeals.
384