Full Judgment Text
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PETITIONER:
DANDU KALLAPPA PATIL & ORS.
Vs.
RESPONDENT:
BALAGONDA SULTANGOUDA PATIL
DATE OF JUDGMENT:
11/09/1969
BENCH:
ACT:
Nashtamsha, meaning of.
HEADNOTE:
The suit lands were patilkiwatan lands in the erstwhile
State of Kolhapur. Under the wat hukum No. 26 of Fasli
1323, the service was to be performed by persons in the
eldest branch, but the properties need not necessarily be
with the person doing the service. Thus, though the
respondent was registered ’as the Nawa wala and was doing
service, the properties were in possession of another
branch. The widow of the last holder of the properties, in
that branch, died in 1943 leaving a daughter. The
respondent, thereupon, filed a suit claiming the properties
on the ground that, under the wat hukum, the other
branch had become Nashtamsha, that is, extinct, because
there was no direct male descendant, and that he was
entitled to get possession of the properties from the
appellants. who were in possession. The suit was decreed by
the Subordinate courts and the High Court.
In appeal to this Court,
HELD: In Kolhapur State succession to watan properties
was governed by the war hukum and not by ordinary Hindu law.
In Dads Babaji Patil v. Kalgonda Babgonda Patil, (1945)
Kol. L.R. 541, a decision of the Supreme Court of
Kolhapur, followed in S.A. No. 210 of 1947 by the High Court
of Kolhapur, it was held that a branch became Nashtainsa
when the deceased person left behind him no sons. But,
according to Shivgouda v. Champabai Bharatar Siaganda App.
No. 297/57 (dt. 7-12-1962) of the Bombay High Court, a
branch cannot be said to be Nashtamsha if the last holder
leaves a daughter. But, whatever may be the correct
interpretation, the appellants could not succeed, because,
if the view of the Kolhapur courts is accepted, the
respondent,as Nawa wala, was entitled to get possession, and
if the Bombay view is according to Shivgonda v. Champabai
Bharatar Siaganda App. No. 297/57 who. would be entitled to
inherit the watan properties. [348 B--E: 349 B. E--G]
Sambaji Ramachandra Kulkarni v. Gopal Govind Dattawad,
(1960) Mys. L.J, 441, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1560 of 1966.
Appeal by special leave from the judgment and decree
dated September 11, 1961 of the Mysore High Court in Second
Appeal No. (B) 43 o,f 1956.
R.B. Datar and S.N. Prasad, for the appellants.
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R. Gopalakrishnan and D.P. Mohanty, for the respondent.
343
The Judgment of the Court was delivered by
Vaidialingam, J. This appeal, by special leave, by
defendants 1 to 4, is directed against the judgment and
decree, dated September 11, 1961 of the Mysore High Court,
in S.A. (B) No. 43 of 1956, confirming the decrees of the
two Subordinate Courts granting a decree for possession in
favour of the plaintiff-respondent.
The respondent instituted suit No. 1 of 1945, before
the Second Class Sub-Judge at Chinchali, for recovery of
possession of the suit lands. According to the plaintiff,
the lands are Patilkiwatan Inam lands and he has been
registered as ’Nawa Wala’ by order No. 68 dated March 30,
1927 of the Revenue Authorities of the then Kolhapur State.
The suit properties had gone in partition to one Maya
Gouda, a member of the Patil family. Maya Gouda died about
35 or 40 years ago. and his widow Jakkawwa was in possession
of the lands till the date of her death on August 16, 1943.
The plaintiff’s further case was that though Maya Gouda and
Jakkawwa had a daughter Bayabai, the 7th defendant in the
suit, the latter could not inherit the inam properties under
the law obtaining in Kolhapur State. Therefore the line of
Maya Gouda has become extinct and the plaintiff, as Nawa
Wala is entitled to. get possession of the properties as
per the Wat Hukum No. 26 of Fasli 1323.
Defendants 1 to 4, the appellants herein, contested the
claim of the plaintiff on various grounds. They pleaded
that the plaintiff was not the senior-most member of the
senior branch of the family to which Maya Gouda belonged and
that they were the nearest reversioners, under Hindu Law,
to the properties of Maya Gouda. They further pleaded
that there was no extinction of the line of Maya Gouda as he
had left a daughter, the 7th defendant, behind him. They
also. claimed title by adverse possession.
The trial Court, by its Judgment and decree dated
February 10, 1949 negatived the plea of adverse possession
raised by the appellants. It further held that the
expression ’Nashtamsha’ in’ the relevant Wat Hukum means
that there is no direct male descendant to inherit the
properties of the deceased. For this proposition, the trial
Court relied upon a judgment of the Kolhapur High Court in
S.A. No. 210 of 1947. On this interpretation it held that
the line of Maya Gouda had become extinct with regard to the
Inam lands according to law, as the 7th defendant, the
daughter, could not inherit the properties. The trial Court
further held that the plaintiff, defendants 1 to 4 and the
deceased Maya Gouda, were members of one and the same family
and that this fact had been admitted by both the parties.
In the end the trial Court decreed the claim of the
plaintiff to get possession of
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the suit properties and passed a decree to that effect
against the defendants.
Defendants 1 to 4 filed an appeal before the District
Judge, Kolhapur, which appeal was later transferred to. the
District Judge, Belgaum, in view of the merger of Kolhapur
State with Bombay. The said appeal, No. 403 of 1949, was
disposed of by the Second Extra Assistant Judge, Belgaum, by
his decree and judgment dated March 24, 1952. The
Assistant Judge was of the view that the suit will have to
be remanded for fresh consideration and for this purpose
certain issues were framed ’and parties given opportunity to
adduce further evidence. The plaintiff challenged this
order of remand, passed by the Assistant Judge, before the
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High Court of Bombay. The Bombay High Court, by its
judgment dated July 21, 1953 set aside the remand order
passed by the Assistant Judge of Belgaum ’and directed the
District Court to dispose of the appeal according to law.
The Assistant Judge of Belgaum, by his judgment dated
January 29. 1954 disposed of C.A. 403 of l 949, confirming
the decree and judgment of the trial Court. The .learned
Judge held that the plaintiff had been registered ’as the
Nawa Wala of the branch of the family consisting of himself,
the defendants a.nd the deceased Maya Gouda and Jakkawwa
with respect to the 8 annas’ share of the Maratha Patils. He
further held that the Civil Courts had no jurisdiction to go
behind the order of the Revenue Authorities recognizing the
plaintiff as Nawa Wala, in view of s. 3 of the Kolhapur
Revenue Jurisdiction Act. On the question,n whether Maya
Gouda’s branch has become Nashtamsha, as mentioned in the
Wat Hukum, the learned Judge held that the Kolhapur Courts
had consistently interpreted the said expression to mean
that a branch became Nashtamsha with respect to Watan
Properties when the deceased person left behind him no sons.
As authority for this proposition. the Court relied upon the
decision of the Kolhapur Supreme Court in Dada Babaji
Patil v. Kalgonda Babgonda Patil(1). The Court also
referred to the later decision in S.A. 210 of 1947. relied
on by the trial Court. On this interpretation, the Court
held that in spite of Maya Gouda having left behind him
his daughter, the 7th defendant, his line should be
considered as Nashtamsha, so far as the Watan properties
were concerned and in consequence, the plaintiff, as Nawa
Wala was entitled to get possession of the properties. The
finding that the defendants had not completed title by
adverse possession was accepted by the Court. In this
view, the appeal filed by defendants 1 to 4 was dismissed.
Defendants 1 to 4 filed a second appeal before the
Bombay High Court, which appeal, on reorganisation of the
States, was
(1) (1945) Kol.L.R. 541.
345
transferred to the Mysore High Court and registered as
Second Appeal No. 43 (B) of 1956. The Mysore High Court, by
its judgment dated September 11, 1961, has confirmed the
decisions of the Subordinate Courts accepting the claim of
the plaintiff and dismissed the second appeal.
Mr. R.B. Datar, learned counsel for the appellants,
urged two contentions: (1 ) The view of the High Court that
the right to Watan properties goes along with the service to
be performed by the person registered as Nawa Wala, is
erroneous and is contrary to the Wat Hukum No. 26 of Fasli
1323. (2) The view of the High Court and the two
S.subordinate Courts that there is Nashtamsha in the line
of Maya Gouda, is errcneous, as apart from there being the
daughter, the 7th defendant, the appellants are also heirs,
being the nearest reversioners and, as such, entitled to
succeed.
We may deal with both the contentions together. It is
no doubt seen that the High Court has proceeded on the basis
that the right to. Watan properties goes along with the duty
to perform the services and therefore prima facie, the
person who is required to do the services, must be entitled
to the property. But a reference to the Wat Hukum No. 26
indicates that all the properties need not necessarily be
with the person doing the service, and that the service is
to be taken from persons in the eldest branch regarding
Patils and that it is not to. be taken by other sharers. It
further provides that as service is not to be taken from
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bhauband, local fund and judi of their share should be
recovered by the village Officers along with Government
land revenues to be credited to the Government for payment
to the person registered as Nawa Wain. In this case, though
the plaintiff as the registered Nawa Wain was doing service,
it is seen that the suit properties were in possession of
Jakkawwa, the widow of Maya Gouda who died about 30 or 40
years ago. That the property must go with the service, is
only one of the reasons given by the High Court for holding
against the appellants. But this reasoning does not vitiate
the conclusions arrived at by the learned Judges that the
plaintiff was entitled to get possession of the properties
as Nawa Wala under the Wat Hukum, as Maya Gouda’s branch
had become Nashtamsha.
Mr. Datar further contended that the expression ’Nashtam-
sha’ occurring in the Wat Hukum means a total absence of
heirs in the sense that there is nobody to succeed, under
Hindu Law, to the estate of Maya Gouda. As Maya Gouda
had left a daughter. the 7th defendant and as, in any event
the appellants are the nearest reversioners entitled to
succeed to the estate of Maya Gouda under Hindu Law, it
cannot be stated that the line of Maya Gouda has become
extinct so as to enable the plaintiff to
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recover possession of the properties. It is common ground
that the Wat Hukum provides for the Nawa Wala taking
possession of the properties if the family of a particular
holder of Watan lands becomes Nashtamsha. The expression
’Nashtamsha’ has come up for consideration ’before the
Courts in Kolhapur. The Supreme Court o,f Kolhapur, in Dada
Patil’s Case (1) had to consider the question whether the
expression ’Nashtamsha’ means complete and total absence.
of direct lineal heirs. In that decision, after the death
of the holder, his widow inherited the lands and remained in
possession till her death. On the death of the widow, the
reversionary heirs of the deceased holder under Hindu
Law entered into possession of the properties. The
plaintiff in that case, who had been registered as the Nawa
Wala by the Revenue Authorities, sued to obtain possession
of the lands and the claim of the plaintiff was allowed by
the Court, holding that the existence of the reversionary
heirs did not take the case out of ’Nashtamsha’ as provided
in the Wat Hukum. The above decision was also followed in
the same Court, by Lokur, J., in S.A. 210 of 1947 who held
that if there is no direct male descendant then that case
should be considered as ’Nashtamsha’. We have already
referred to the fact that these two decisions have been
followed by the trial Court as well as by the Assistant
Judge on appeal.
From these decisions it follows that in the Kolhapur
State, the succession to Watan properties was not governed
by the ordinary Hindu Law, but by Wat Hukum No. 26 and on
the interpretation placed by the Courts in that State, there
will be ’Nashtamsha’ when a person dies without leaving
behind him any sons. That is the position in the case
before us. As pointed out earlier, Maya Gouda died leaving
his daughter, the 7th defendant, but no sons. The 7th
defendant possibly could not inherit the Watan properties,
according to the decision of the Courts in Kolhapur State.
The plaintiff’s specific claim was that under the law
obtaining in Kolhapur State, the 7th defendant was only the
daughter of Maya Gouda and could not inherit the properties
and that he, as the Nawa Wala was entitled to recover
possession of the properties. On the other hand, defendants
1 to 4 specifically pleaded that the 7th defendant, the
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daughter of Maya Gouda, was entitled to inherit the
properties. All the Courts have accepted the plaintiff’s
plea, and decreed his claim.
Mr. Datar, learned counseL, referred us to the decision
of the Division Bench of the Bombay High Court in Shivgonda
@ Appasaheb Virgonda Patil v. Champabai Bharatar Sidgonda @
Racsaheb Shidgonda Patil (2). That judgment was delivered
on
(1) (1945) Kol. L.R. 541.
(2) Appeal N9. 297 of 1957 from original decree, decided on
7-12-1962.
347
December 7, 1962 and a certified copy of the same has been
placed before us. The learned Judges have observed:
"Whatever may have been the interpretation
of the Vathukums in Kolhapur State, so far as
this Court is concerned it is well settled
that ’Nashtamsha’ does not mean a man dying
without male issue ’but it means a man dying
without leaving any heir. Accordingly,
therefore, unlike the authorities in Kolhapur
State, this Court held that as long as there
was a single heir, whether male or female, to
the deceased, it does not result in
’Nashtamsha’ of the line."
According to. this decision, Maya Gouda’s branch cannot be
considered to be ’Nashtamsha’ as he has left his daughter,
the 7th defendant, as his heir, and she will be entitled to
inherit the Watan properties.
We may also refer to a Division Bench decision of the
Mysore High Court in Sambaii Ramachandra Kulkarni v. Gopal
Govind Dattaward(1) wherein the Mysore High Court has not
agreed with the view of the Bombay High Court, expressed in
an earlier decision, similar to the view taken by the Bombay
High Court in Shivgonda’s case(2), that the expression
’Nashtamsha’ has to be interpreted as meaning that a holder
has left no heirs at all who can inherit his estate under
the Hindu Law.
It is not necessary for us in this case to. resolve the
conflicting views noted above. Whatever may be the
interpretation, the appellants will not be entitled to
inherit the properties of Maya Gouda. Because, if the view
of the Kolhapur Courts is accepted, the plaintiff, as the
Nawa Wala, is entitled to get possession; and if the Bombay
view is accepted, it is the 7th defendant, who will be
entitled to inherit the watan properties of her father Maya
Gouda. In either case, the appellants cannot inherit the
watan properties of Maya Gouda and thus they are out of the
picture. The 7th defendant, against whom also a decree for
possession has been passed, did not contest the claim of
the plaintiff. Nor did she file any appeal against the
decree of the trial Court. It has to be further noted that
even the appellants have not made her a party, either
be,fore the first Appellate Court, or in the High Court, or
even before this Court.
In the result, the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.
(1) (1960) Mys. L.J. 441.
(2) Appeal No. 297 of 1957 from original decree, decided an
7-12-1962.
348