Tikait Hargobind Prasad Singh Vs.
Srimatya Phaldani Kumari  INSC 54 (29 November 1951)
FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND BOSE,
CITATION: 1952 AIR 38 1952 SCR 153
Ghatwali tenures—Birbhum ghatwals--Succession--Widow's
right to succeed in preference to nearest male agnate when family is joint
--Custom--Hindu law--Regulation XXIX of 1814.
Held by the Full Court--Amongst the Birbhum
ghatwals, when the holder of a ghatwali dies leaving a widow but no direct
lineal descendants, the widow succeeds in preference to the nearest male
agnate, even though the family may be a joint family.
Per MAHAJAN and Bose JJ.--The Mitakshara rule
that the property inherited by a person from his immediate paternal ancestors
becomes ancestral in his hands, and his sons, grandsons and great-grandsons
acquire a right in it at the moment of their birth has no application to
Birbhum ghat wali tenures.
The word "descendants" is used in
Regulation XXIX of 1814 loosely in the sense of "heirs" and does not
mean lineal descendants.
FAZL ALI J.--Custom and usage are important
factors governing succession to ghatwali property, and while in some cases
custom may develop on the lines of Hind law relating to succession 0wing to repeated
instances of tacit and unquestioned application of the law, in other cases
succession to ghatwali property may be governed not entirely by Hindu law but
by such law as modified in certain respects by usage and custom.
Fulbati Kumari v. Maheswari Prasad (A.I.R.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 87 of 1950. Appeal from the Judgment and Decree dated 8th February, 1949,
of the High Court of Judicature at Patna (Manohar Lall and Mahabir Prasad JJ .)
in Appeal No. 38 of 1946 arising out of decree dated the 18th December, 1945,
of the Subordinate Judge of Deoghar in Title Suit No. 1 of 1939.
B.C. Dey (S.C. Ghose, with him) for the
M.C. Setalvad (Kanhaiyaji, with him) for the
154 1951. November 29. The Judgment of Mehr
Chand Mahajan and Vivian Bose JJ. was delivered by Mahajan J. Fazl Ali J.
delivered a separate judgment.
MAHAJAN J. --The question involved in the
appeal relates to the right of succession to six Birbhum ghatwalis governed by
Regulation XXIX of 1814, annexed to Gaddi Pathrol and lying within Tappasarath
in the Santhal Parganas. the genealogy of the contestants appears from the
following pedigree table: ....
Digbijoy Singh I Gurohari SinghKanhai Singh
Bhairo Singh Balram Singh (Ghatwal) I I Pratar Singh I I I I I Banwari Singh
Pitambar Katku Singh Bharat Singh (Died (Ghatwal) issueless) I Kharagdhari
Singh (Ghatwal) I Ram Chandra Singh (Ghatwal) I I Brijbehari Singh Sarju Prasad
Singh (Ghatwal) (Original plaintiff) I I Krishna Prasad Singh Hargobind Prasad
Singh (Ghatwal) (Substituted plaintiff) I I Kali Prasad Singh Durga Prasad
(Ghatwal) ( Died issueless) I Phaldani Kumari (Defendant) Tikait Kali Prasad
Singh, the last gaddidar of Pathrol, died in the year 1935. He belonged to the
Baisi-Chaurasi clan. On the 29th November, 1935, the 155 Commissioner of
Bhagalpur Division recognized Smt. Phaldani Kumari as the next ghatwal and
entitled to be maintained in possession of the ghatwali estate on the 30th
November, 1936, sarju Prasad Singh brought the suit out of which this appeal
arises in forma pauperis in the court of the Subordinate Judge of Deoghar for
possession of the ghatwalis. In paragraphs 7, 8 and 10 of the plaint it was
alleged that the ghatwalis in suit were joint family property and were impartible
by custom; that succession to them was governed by the law of lineal
primogeniture; that the females and persons claiming through them were
altogether excluded from inheritance. It was claimed that the late Tikait Kali
Prasad Singh and the plaintiff were members of a joint Mitakshara family and
that he alone as the eldest member of the eldest surviving line of the
descendants of the common ancestor was entitled to succeed to them.
The defendant in her written statement denied
this claim and contended that Birbhum ghatwalis governed by Regulation XXIX of
1814 are not and cannot be in the nature of joint family property but that the
person who succeeds and holds the tenure as ghatwal is the sole proprietor and
owner thereof. It was pleaded that the properties being the exclusive and
separate properties of the ghatwal for the time being, the defendant, his
widow, was entitled to succeed to them in preference to the plaintiff under the
Mitakshara school of Hindu law which admittedly governed the family of the
parties. The pleadings of the parties gave rise to the following issues :-
1. Whether succession to the ghatwalis in
question is governed by the customs alleged in para 7 of the plaint ?
2. Did the ghatwalis in question form joint
family property of Kali Prasad Singh, his ancestors in the direct line and of
Sarju Prasad Singh and the plaintiff?
3. Did Kali Prasad die in a state of
jointness with Sarju Prasad Singh ? 156
4. Are the ghatwals the sole proprietors of
the ghatwalis for the time being as alleged by the defendant ?
5. Whether the plaintiff or the defendant is
entitled to succeed to the properties in suit ? Issues 2, 3 and 4 were found by
the trial Judge in favour of the plaintiff and against the defendant. It was
held that Kali Prasad Singh died in a state of jointness with Sarju Prasad
Singh and that the ghatwalis in question were their joint family property and
that the plaintiff the eldest surviving copartner in the eldest line of
Digbijoy Singh's descendants was entitled to succeed to them in preference to
the widow. It was common ground between the parties that in case the properties
were held to be the separate properties of Kali Prasad Singh, the widow was
entitled to succeed to them. As a result of these findings the plaintiff's suit
was decreed with costs. On appeal by the widow to the High Court, this. decree
was reversed and the plaintiff's suit was dismissed with costs. It was held
that the character of the ghatwali tenures in question was such that they could
not be regarded as joint property of the plaintiff and the last ghatwal and
that being so, the defendant was entitled to succeed to them.
The learned counsel for the appellant based
his arguments on the thesis that the ghatwali estates in question were of the
same nature and character as joint family impartible estates governed by the
Mitakshara law and that the rule of survive applicable to such estates was also
applicable to them. It was contended that the High Court was in error in
holding that the suit properties exclusively belonged to Kali Prasad Singh or
that there was anything peculiar in these tenures which differentiated them
from other ghatwalis in the Santhai Pargangs or from other impartible estates
known to Hindu law and which peculiarity incapacitated them from being included
within the definition of coparcenary property.
The plea that females were by custom excluded
from inheriting ghatwali tenures in Birbhum was 157 dropped in the two courts
below and was' not raised before us; so also the point of custom set out in
para. 7 of the plaint and covered by issue 1 was not seriously urged.
The learned Attorney-General, while conceding
that succession to these tenures was governed by the Mitakshara law, contended
that in no sense could they be regarded as joint family property and that their
peculiar characteristics precluded the acquisition of any right by birth by
members of a joint Hindu family in them. He also urged in the alternative that
the widow was 'entitled to succeed to them, assuming them to be joint family
property under custom.
The courts below have given elaborate
judgments in the case and reference has been made to a large number of decided
cases. In our opinion, the main point that needs decision is whether the suit
ghatwalis were to be regarded as joint family or separate properties of the
deceased. For a solution of this problem it is necessary to refer first to the
nature and main incidents of a ghatwali tenure. Its origin is now well known.
In Moghul times grants of land were made to selected persons who were appointed
guardians of the mountain passes for protecting the countryside against hill
invaders and the office held by these persons bore the designation
"ghatwal". These grants were made in some cases directly by the
ruling power and in other cases by the zamindar responsible by custom for the
maintenance of security and order within the estate as consideration for the
performance of the duties. By efflux of time these grants assumed the form of
an actual estate in land, heritable and perpetual, but conditional upon
services certain or services to be demanded.
Reference to some of the decided cases
relating to Birbhum ghatwali tenures will sufficiently indicate their nature
In Harlal Singh v. Joravan Singh(1), it was
held that a ghatwali estate in Birbhum was not divisible (1) 6 Select. Rep.204.
21 158 on the death of a ghatwal, amongst his
heirs but should devolve entirely on the eldest son or the next ghatwal. It was
said that ghatwali lands are grants for particular purposes, especially of
police, and to divide them into small portions amongst the heirs of the
ghatwals would defeat the very ends for which the grants were made.
In Satrukchunder Dey v. Bhagat Bharutchunder
Singh(1), a decision of the year 1853, it was stated that the ghatwali tenures
in Birbhum were not private property of the ghatwals but lands assigned by the
State in remuneration for specific police services and were not alienable or
attachable for personal debts.
Mst. Kustooree Koomaree v. Monohur Deo(2),
Loch J. took the view that succession to ghatwalis is regulated by no rule of
kulachar or family custom, nor by the Mitakshara law, but solely by the nature
of the ghatwali tenure, which descends undivided to the party who succeeds to
and holds the tenure as ghatwal and that a female is not incapable of holding a
ghatwali tenure. It was said that"the party who succeeds to and holds the
tenure as ghatwal must be, and has always been, looked upon as sole proprietor
thereof, and, therefore, the other members of the family cannot claim to be
coparceners and entitled to share in the profits of the property, though they
may, by the permission and goodwill of the incumbent, derive their support,
either from some portion of the property which he may have assigned to them, or
directly from himself." In Binode Ram Sein v. Deputy Commissioner of
Santhai Pargangs(3), (on review 7 W.R. 178) it was held that the rents of a
ghatwali tenure are not liable for the debts of the former deceased holder of
the tenure. The reason for the decision was that the tenure was held for the
purpose of public services and those who perform the services are entitled to
the whole of the remuneration.
(1) 9 S.D.R. 900. (3) 6 W.R. 129.
(2) 1864 W.R. (Gap Nos.) 39.
159 In Tekait Durga Pershad Singh v. Teketnee
Durga Kuari(1), it was urged that a female's right to inherit was inconsistent
with a ghatwali estate. This contention was negatived and reference was made to
the fact that many ghatwali estates were held by females and it was observed
that it was difficult to hold that a ghatwali estate must necessarily be held
by male heirs. This case further suggests that in a case where it is held
proved that the family was joint, succession to Birbhum ghatwali may be
regulated by the same rule of Hindu law as is applicable to the devolution of
In Ram Narain Singh v. Ramoon Paurey (2),
another Birbhum ghatwali case, it was held that the ghatwal for the time being
was only entitled to interest on the compensation money obtained for compulsory
acquisition of a part of the ghatwali interest but that he could not spend the
corpus of it which had to devolve on the next heir intact.
So far as Birbhum ghatwalis are concerned, it
is only the above mentioned cases to which our attention was drawn.
Reference in this connection is also
necessary to the terms of Regulation XXIX of 1814. Sections I and II of the
Regulation which are material to this enquiry are in these terms :-I. Whereas
the lands held by the class of persons denominated Ghautwauls, in the district
of Beerbhoom, form a peculiar tenure to which the provisions of the existing
Regulations are not expressly applicable; and whereas every ground exists to
believe that, according to the former usages and constitution of the country,
this class of persons are entitled to hold their lands, generation after
generation, in perpetuity, subject nevertheless to the payment of a fixed and
established rent to the zemindar of Beerbhoom, and to the performance of
certain duties for the maintenance of the public peace and support of the
and whereas the rents payable by those
tenants have been (1) 20 W.R. 154. (2) 23 W.R. 376.
160 recently adjusted, after a full and
minute inquiry made by the proper officers in the revenue department; and
whereas it is essential to give stability to the arrangements now established
among the Ghautwauls, the following rules have been adopted, to be in force
from the period of their promulgation in the district of Beerbhoom.
II. A settlement having lately been made on
the part of the Government with the Ghautwauls in the district of Beerbhoom, it
is hereby declared that they and their descendants in perpetuity shall be
maintained in possession of the lands, so long as they shall respectively pay
the revenue at present assessed upon them,...." The result of the decided
cases and of the provisions of the regulation is that the grantee of the tenure
and his descendants have to be maintained in possession of the land from
generation to generation conditional upon services to be rendered. The tenure
is however liable to forfeiture for misconduct or misbehavior of the ghatwal
for the time being.
The succession to it is determined by the
rule of lineal primogeniture. It is neither partible nor alienable (except in
exceptional cases with the consent of the government or the zamindar, as the
case may be). These two characteristics are inherent in its very nature and
have not been annexed to it by any rule of custom. The estate in the hands of
the last holder is not liable either to attachment or sale in execution of a
decree against him; nor is it liable in the hands of his successor for payment
of his debts. When the succession opens out, the heir determined according to
law has to execute a muchilika in favour of the grantor guaranteeing the
performance of the duties annexed to the office and stipulating that in case of
misconduct or misbehaviour or non-fulfilment of the obligations attaching to the
office, as to which the tenure is in the nature of a remuneration, government
will have the right to resume it.
In view of these peculiar characteristics of
a ghatwali tenure in Birbhum which are so different from other inheritances, we
find it difficult to apply to it the 161 law of Mitakshara to the full extent.
The essence of a coparcenary under the Mitakshara law is unity of ownership.
As observed in Katama Natchir v. The Raja of
Sivaganga(1), there has to be community of interest and unity of possession
between all the, members of the family, and upon the death of any one of them
the others may well take by survivorship that in which they had during the
deceased's lifetime a common interest and a common possession. The incidents
attaching to a Birbhum ghatwali tenure rule out the existence of any notion of
community of interest and unity of possession of the members of the family with
the holder for the time being. He is entitled to be maintained in exclusive
possession of the ghatwali lands and the devolution of the property is to him
in the status of a sole heir.
This view finds support from the observations
of Lord Fitzgerald in Kali Pershad v. Anand Roy(2), though made in respect of a
zamindari ghatwali, yet also appositely applicable to a government ghatwali.
His Lordship observed as follows :"Where, however, the Mitakshara governs,
each son immediately on his birth takes a share equal to his father in the
ancestral immoveable estate. Having regard to the origin and nature of ghatwali
tenures and their purposes and incidents as established by decided cases, most
of which have been referred to in the course of the argument, it is admitted
that such a tenure is in some particulars distinct from, and cannot be governed
by, either the general objects of Hindu inheritance as above stated, or by the
before-quoted rule of the Mitakshara.
It is admitted that a ghatwali estate is
impartable --that is to say, not subject to partition; that the eldest son
succeeds to the whole to the exclusion of his brothers.
These are propositions that seem to exclude
the application of the Mitakshara rule that the sons on birth each take an
equal estate with the father and are entitled to partition." Similar
opinion was expressed in Chhalraclhari Singh v. Saraswati Kumari(3), by a Bench
of the (1) (1861-3) 9 M.I.A. 543. (3) (1895) I.L.R. 22 Cal. 156.
(2) (1888) I.L.R. 15 Cal. 471.
162 Calcutta High Court. The following
passage from that a decision may be quoted with advantage :"The learned
pleader for the appellant has however contended before us ,that, although this
ghatwali tenure is impartible, yet according to the decision of their Lordships
of the Privy Council in Chintaman Singh v. Nowlukho Koonwari(1), it is not
necessarily separate property, and that as their Lordships observe 'whether the
general status of a Hindu family be joint or undivided, property which is joint
will follow one and property which is separate will follow another course of
succession.' The decision referred to is no doubt an authority for the
proposition that there may be impartible joint family property, such as a raj
or other estate similar to a raj, but whether such property is to be regarded
as joint or separate would appear to depend generally upon the character of the
property at its inception, such as the nature of the grant, etc. creating it.
Having regard however to the view we have
already expressed as to the status of the family in the present case, and as to
the ghatwali tenure having been the exclusive property of Ananta Narain, we
think it is unnecessary to determine what was originally the character of this
tenure, although, if we were called upon to decide the question, we should be
disposed to say, with reference to the peculiar character of these tenures as
described in Regulation XXIX of 1814, that they were intended to be the
exclusive property of the ghatwalforthe time being, and not joint family
property in the proper sense of the In Raja Durga Prashad Singh v. Tribeni
Singh(2), again it was said as follows :"It was certainly an advantage to
the whole family that one of their members should hold the office and the
He could put other members of the family into
minor offices and grant them subordinate interests commonly called jotes, and he
could and would generally provide for the family in the manner (1) 13 W.R. 21.
(2) (1918) 45 I.A. 251.
163 expected of its head. But this is a long
way off making him a trustee for the family or treating the ghatwali estate as
possessed by the family and reducing the ghatwali to the position of karta or
managing head of the family. Their Lordships do not find that the incidents of
ghatwali tenure are such as to give the family any rights over the property
while it is in the hands of the ghatwal, and they find themselves upon this
point in full agreement with the courts in India." In Narayan Singh v.
Niranjan Chakravarti(1), Lord Sumner made an exhaustive review of the decided
cases and examined the whole position of ghatwali tenures generally and observed
that where the tenure is hereditary, a recognized right to be appointed ghatwal
takes the place of a formal appointment and a recognized right in the superior
to dismiss the ghatwal if he is no longer able and willing to render the
service required by his tenure, and to appoint another to the office and the
tenure of the lands, then readily suffices to maintain in perpetuity the
incidents of the tenure.
In these circumstances it is not possible to
hold that the Mitakshara rule that when a person inherits property from any one
of his three immediate paternal ancestors, his sons, grandsons and
great-grandsons acquire an interest in it by birth can have any application to
the case of these grants which are in the nature of a remuneration for the
performance of certain services by the holder of that office. A ghatwali has to
be regarded as something connected with an office and as observed by Lord
Sumner in the above mentioned case, the office cannot except by special custom,
grant or other arrangement, either run with lands or be served from them. In
other words, just as primogeniture and impartibility are handmaids, similarly
the ghatwal's office and the ghatwali tenure are two inseparables and cannot be
lodged in separate compartments. If the office cannot be in the nature of
coparcenary property, the tenure must follow the same way. Thus it is not easy
to conceive that an interest (1) (1924) 51 I.A. 37.
164 can be acquired at the birth of a member
of a joint family in a tenure which is annexed to an office, even if it has
descended from three immediate paternal ancestors. In certain eventualities the
selection of the next heir depends on the choice of the ruling authority and in
case of misconduct or misbehaviour of the holder for the time being the ruling
power can not only dismiss the ghatwal but even resume the tenure. This is a
feature which places this heritable property in a class by itself as
distinguished from other inheritances governed by the Mitakshara law.
The view that in Birbhum, ghatwali tenures
are in the nature of separate property or the exclusive property of the ghatwal
finds support from the fact that in many instances, whenever succession has
opened out in respect of them, it has been determined according to the
Mitakshara rule applicable to the devolution of separate property irrespective
of the circumstance whether the deceased died in joint or separate status with
the other members of the family.
Thirteen instances of such practice in the
past amongst members of the Bais-Chaurasi clan were proved in the case, in all
of which the widow succeeded in preference to a male heir. The learned trial
Judge held that in some of these instances the female succeeded because the
agnate nearest in line was separate from her husband; as regards the others
though he reached the conclusion that the evidence of separation was weak, he
thought that these did not establish a custom superseding in cases of joint
family property the rule of survivorship. The High Court was of a different
opinion. It rightly remarked that while numerous instances of female succession
to the estates held by Baisi-Chaurasi gaddidar's had been proved, not a single
instance of a female having been excluded from the appointment of a ghatwal on
the ground of an agnate being entitled to come in as a coparcener of the last
holder by survivorship had been proved, and that in these circumstances there
was force in the contention that even if the tenures in question were ancestral
joint family property, succession thereto was 165 governed by the Mitakshara
rule applicable to separate property.
For the reasons given above we held that the
Mitakshara rule that the property inherited by a person from his immediate
paternal ancestors becomes ancestral in his hands and in it his sons, grandsons
and great-grandsons acquire a right at the moment of the birth has no apposite
application to Birbhum ghatwali tenures.
The learned counsel for the appellant in
support of his contention placed reliance on a number of decisions of their
Lordships of the Privy Council concerning impartible estates governed by the
Mitakshara law, wherein it was held that the succession to an impartible estate
which is the ancestral property of a joint Hindu family governed by the
Mitakshara law is governed by the rule of survivorship subject to the custom of
impartibility; the eldest member of the senior branch of the family succeeding
in preference to the direct lineal senior descendants of the common ancestor,
if the latter is more remote in degree. Particular reference was made to the
remarks of Turner L..I. in the Sivaganga case(1), and to the observations in
Baijnath Prasad Singh v. Tej Bali Singh (2) and in the case of Shiba Prasad
Singh v. Rani Prayag Kumari Debi(3). Therein it was said that 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 head, (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 and third are incompatible with the
custom of impartibility. 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 (1) (1861-3) 9 M.I.A. 543. (3)
A.I.R. 1932 P.C. 216.
(2) (1921) I.L.R. 43 All. 228.
22 166 therefore still remains and to this
extent the estate still retain.s its character of joint family property and its
devolution is governed by the general Mitakshara law applicable to such
property and that though the other rights which a coparcener acquires by birth
in joint family property no longer exist, the birthright of the senior member
to take by survivorship still remains.
In our view, these observations have no
application to the tenures in suit. As already indicated, it is not possible to
concede in their case that a member of a joint family governed by the
Mitakshara law acquires any right by birth in them. The general law of
Mitakshara creating that right seems to have been superseded in their case not
only by peculiarities inherent in the nature of these tenures but by
encroachments of custom on it. Moreover, it appears that the remarks relied
upon were made in cases where the impartible estates were admittedly joint
family property or the grants were of such a character that they are intended
for the benefit of the family as such. The ratio of these decisions was that
even though certain incidents attaching to joint family property may cease to
exist by custom, some others which are not affected by custom may survive. This
reasoning can have no application to property which at no stage whatever could
be clothed or was clothed with any of the incidents of coparcenary property.
The learned counsel for the appellant placed
considerable reliance on the observations of Sir Dawson Miller C.J.
in Fulbati Kumari v. Maheshwari Prasad(1).
The learned Chief Justice therein dissented from the View urged before him that
all ghatwali property is the exclusive separate property of the holder for the
time being and that it devolves according to the rules affecting separate
property subject again to the circumstance of impartibility. He observed that
the fact that a raj is impartible does not in a case governed by the Mitakshara
law make it separate or self-acquired property, that it may be self-acquired
(1) A. I. R. 1923 Pat. 453.
167 property or it may be the property of a
joint undivided family and that in the latter case succession will be regulated
according to the rule of survivorship. In our opinion, these observations have
no application to the case of Birbhum ghatwalis because in express terms these
were excluded from consideration in that case. In the judgment it was said :"In
our opinion, the estate in the present case is in no way comparable to the
Birbhum ghatwali tenures and Regulation XXIX of 1814 does not apply to
it." The decision in the case proceeded on the assumption that Birbhum
ghatwalis stood apart from other ghatwalis which stood on the same footing as
impartible estates governed by Mitakshara law.
The learned Attorney-General challenged the
correctness of these decisions and contended that the decisions of the Privy
Council on this subject were not uniform. He drew our attention to the
observations made in Sartaj Kuari's case(1), in the Second Pittapur case(2),
and in Tipperah case(3). There may be a seeming conflict between the view
expressed in those decisions and the view expressed in Baijnath Prasad Singh v.
Tej Bali Singh(4), and in Shiba Prasad Singh v. Rani Prayag Kurnari Debi(5). It
seems to us however that these latter cases have settled the law applicable to
joint family impartible estates governed by Mitakshara law and it is rather
late in the day to reopen a controversy settled by a series of decisions of the
The contention that on the death of the last
holder a ghatwali tenure in Birbhum reverts to the grantor and that notionally
there is a resumption of it in favour of government and a re-grant to the next
heir does not impress us.
On the express terms of the regulation these
tenures are heritable from generation to generation and the theory of
resumption and re-grant is inconsistent with their heritable character.
Inheritance can never remain in abeyance and on the (1) (1887-8) 15 LA. 51. (4)
(1921) I.L.R. 43 All. 228.
(2) (1918) 45 I.A. 148. (5) A.I.R. 1932 P.C.
(3) (1867-9) 12 M.I.A. 523.
168 death of the last holder the estate
immediately vests in the next heir. The circumstance that the government may in
certain events have the power to dismiss a ghatwal or to forfeit the tenure
cannot lead to the inference that it terminates and is re-granted at every
The argument of the learned counsel for the
appellant that a widow not being a descendant of the grantee under the terms of
Regulation XXIX of 1814, is not entitled to inherit to Birbhum ghatwali tenures
also does not impress us. The regulation does not enact any rule of succession
to these tenures, and the devolution with respect to them is admittedly
determined by personal law or custom. The expression "descendants"
used in the regulation cannot deprive females, like a widow or a mother, from
taking the inheritance where they are legal heirs under Mitakshara law or under
Females have invariably been allowed to
succeed to these tenures in the past. The appellant's counsel conceded that if
the property was the separate property of Kali Prasad Singh, the defendant was
entitled to inherit to it. We think that the expression "descendants"
has been loosely employed in the regulation for the word "heirs". On
this point we are in agreement with the observations made by a Bench of the
Calcutta High Court in Chhatradhari Singh v. Saraswyati Kumari(1).
It may further be pointed out that even if
the contention of the learned counsel for the appellant is to be accepted, by
no process could the trial court have passed a decree in favour of the
plaintiff in respect of items 4, 5 and 6 of the schedule Admittedly these were
acquired by Krishna Prasad Singh, father of Kali Prasad Singh by a decree of
court passed in his favour against his collateral Katku Singh who also claimed
these properties as an heir to the last male owner Banwari Singh (vide Exhibit
4). These properties having devolved upon Krishna Prasad Singh by obstructed
heritage, were in the nature of separate property in his hands and could not
fall within the (1) (1895) I.L.R. 22 Cal. 156.
169 definition of ancestral property given in
Mitakshara. Sarju Prasad Singh, uncle of Krishna Prasad Singh, could acquire no
right or roterest in these properties by birth enabling him to claim them by
survivorship. Kali Prasad Singh who inherited them on the death of his father
got them as his separate property as he had no son who could acquire any
interest in them by birth. With regard to this property the widow was certainly
an heir after the death of her husband' and plaintiff could have no claim
whatsoever in respect of these items of the schedule. This aspect of the case
seems to have been lost sight of in the two courts below.
The result, therefore, is that this appeal
fails and is dismissed with costs.
FAZL ALI J.--While agreeing generally with my
learned brother Mahajan J., I wish to say a few words to indicate the main
ground on which I would dismiss this appeal.
There are a number of authoritative decisions
dealing with the special features of ghatwali property, one of which is said to
be that if the ghatwal is a member of a joint family, the family has no right
over the property while it is in his hands. [See Durga Prashad Singh v. Tribeni
Singh(1)]. The logical corollary from this characteristic of ghatwali property
would seem to be that it is more in the nature of exclusive property of the
ghatwal than of joint family property. Nevertheless, in some cases, succession
to such property has been determined with reference to the rules of Hindu law
regarding joint property, where the ghatwal was found to be a member of the
joint family. As at present advised I am not prepared to say that those cases
were wrongly decided, but I think it will not be incorrect to say that custom
and usage are also important factors governing succession to ghatwali property,
and it is conceivable that while in some cases custom may develop on the lines
of Hindu law relating to succession owing to repeated instances of (1) (1918)
45 I.A. 251.
170 tacit and unquestioned application of the
law, in other i.a. cases succession to ghatwali property may be governed not
entirely by Hindu law but by such law as modified in certain respects by usage
The question with which we are concerned in
this case is whether the widow of a deceased ghatwal, who was a member of a
joint family and died leaving no issue or direct male descendants, can succeed
to the ghatWali property in preference to the nearest male agnate.
On a reference to the plaint, it would appear
that what the plaintiff contended was that the clan to which the parties belong
was governed by the Mitakshara school of Hindu law "subject to their clan
custom", one of which was said to be that females, viz., widow, daughter
or mother, and persons claiming through females could not and did not succeed
on the death of the ghatwal. This allegation was controverted in the written
statement, and it was claimed that the family was governed by the Mitakshara
system of law and "there was no clan custom governing the estate in
suit." Upon these pleadings, one of the issues framed by the trial court
was "whether succession to the ghatwali is governed by custom, as alleged
in paragraph 7 of the plaint." In the course of the trial, the plaintiff
tried to prove that females were always excluded as alleged by him. In this, he
did not succeed. The courts below however found that the question which
directly affected the present case was a much narrower one, namely, whether
females could succeed even when the family was joint. So far as this question
is concerned, both the courts below are agreed that females cannot be excluded
if the property is the separate property of the ghatwal. But the question which
still remains to be decided is what the true legal position would be if the
property is deemed to be joint property. It appears that evidence was adduced
at the trial to show that in 13 instances affecting the Baisi-Chaurasi clan to
whom the Birbhum ghatwals admittedly belong, the widow of the last ghatwal
succeeded in preference to a male agnate.
171 The trial judge however found that in
four of these instances the nearest agnate who claimed the property was
separate from the ghatwal or his widow, but, in the other instances, there was
no evidence of separation, or "the evidence was weak", which, I take
it, is another way of saying that it could not be safely relied on. It seems to
me that these instances lend some support to the view that Hindu law has been
modified' by custom, so far as the Birbhum ghatwalis are concerned, and that
among the ghatwals belonging to this class, where the last ghatwal dies leaving
a widow but no issue, then she succeeds in preference to the nearest male
agnate, even though the family may be joint.
The Birbhum ghatwals form a class by
themselves, and they are also subject to a special Regulation-Regulation XXIX
of 1814. That Regulation states among other things that this class of ghatwals
shall be entitled to hold the ghatwali property generation after generation and
that they and their descendants in perpetuity shall be maintained in possession
of such property. Strictly speaking, neither a widow nor a distant agnate will
come within the terms of the Regulation, not being a descendant of the last
ghatwal, and therefore custom and usage cannot be ruled out in determining
succession in such cases. The strongest case which was relied upon by the
appellant is Fulbati Kumari v. Maheshwari Prasad(1) where it was laid down that
on the death of a ghatwal, who was a member of a joint family, the ghatwali
property would devolve according to the rules of Hindu law affecting joint
property, that is to say, by the rule of survivorship. But, in this case,
Dawson Miller C.J. who delivered the judgment, took care to observe that the
ghatwali estate which was the subject of litigation was not comparable to the
Birbhum ghatwali 'tenures, which means that the rule laid down in that case may
not apply to Birbhum ghatwals.
In the present case, the Commissioner, who
represented the Government and who had special means of knowing the usages
affecting the Birbhurn ghatwals.
(1) A.I.R. 1923 Pat. 453.
172 appointed the respondent as the ghatwal,
stating that he was "following a well-established precedent in the case of
these ghatwals by recognizing the widow in the absence of a direct heir."
In my opinion, whatever evidence there is in this case supports the
Commissioner's view, and there is hardly any cogent evidence to rebut it. In
the circumstances, I agree that this appeal ought to be dismissed with costs.
Agent for the appellant: P.K. Chatterjee.
Agent for the respondent: S.P. Varma.
ADAMJI UMAR DALAL v. THE STATE OF BOMBAY @
November 26, 1951.