Shivagonda Subraigonda Patil & Ors
Vs. Rudragonda Bhimagonda Patil & ANR [1969] INSC 280 (14 October 1969)
14/10/1969 REDDY, P. JAGANMOHAN REDDY, P.
JAGANMOHAN SIKRI, S.M.
MITTER, G.K.
CITATION: 1970 AIR 453 1970 SCR (2) 787 1969
SCC (3) 211
ACT:
Wat Hukums-Kolhanur State-Patel-ki-Watan
inam-If could be alienated contrary to Specific Wat Hukums-Bombay Hereditary
Offices Act (III of 1874)-Applicability-Limitation Act, art.
142.
HEADNOTE:
The respondent filed a suit against the
appellant alleging that the latter had sold the suit property to the
respondent's father undertaking to redeem the mortgages and hand over
possession of the property. It was averred that the appellant, after redeeming
the mortgages wrongfully re- tained possession of the properties contrary to
the stipulation and the sale effected in favour of the respondent's father. The
appellant contested the suit on the ground that the sale in favour of the
respondent's father was void under the then prevailing law in Kolhapur State
and that the suit was barred by limitation. The District Court decreed the suit
and the High Court confirmed. On the questions (i) whether according to the law
in force as could be ascertained from the relevant Wat Hukums and the
provisions of the Bombay Hereditary Offices Act (111 of 1874) in so far as it
was applicable to the State of Kolhapur, the alienation of Patel-ki-Watan Inam
land was void and (ii) whether the suit was barred by limitation,
HELD : (i) On the construction of the various
Wat Hukums the alienation in favour of the respondent's father was invalid. The
Bombay Hereditary Offices Act did not apply to the Kolhapur State so as to
override the specific directions of the Wat Hukums which had legal and binding
force in the State. In this case there was a specific prohibition from
alienating Patel-ki-Watan and other similar inams. [794 F, G] Rangappa Venappa
Akole v. Laxman Malyappa, 62 Bom. L.R.
639, referred to.
(ii) The suit was not barred by limitation.
The suit was against a person who was not entitled to possession. The appellant
did not dispossess the respondent and as such Art.
142 of the Limitation Act was not applicable.
[795 B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 734 of 1966.
Appeal by special leave from the judgment and
order dated April 20, 1964 of the Bombay High Court in Second Appeal No.
1188 of 1958.
N. D. Karkhanis and A. G. Ratnaparkhi, for
the appellant.
D. D. Verma, R. Mahalingier and Ganpat Rai,
for the respondents.
up CI/70-5 788 The Judgment of the Court was
delivered by Reddy, J. This is an appeal by special leave against the judgment
of the Bombay High Court confirming the judgment of the Assistant Sessions
Judge, Kolhapur who reversed the judgment and decree of the civil judge of
Junior Division at Gadhinglaj whereby the suit of the plaintiff-respondent was
dismissed. The respondent had filed a suit against the appellant Shivagonda
Subraigonda Patil and his son Nijappa Shivagounda Patil, Virgonda Shivagounda
Patil, Bhimapa Shivagounda Patil and Rayappa Shivagonda Patil with the
allegation that on 27-5-1921 the first defendant, Shivagounda who was the karta
of the joint family consisting of himself and his four sons, sold by a
registered sale deed for a sum of Rs. 2,400 the suit properties admeasuring 6
acres and 37 guntas out of R.S. No. 62/2 and 62/3 to the plaintiff's father
Bhimgonda. The properties sold to the plaintiff's father were previously
mortgaged and it was averred that the first defendant had undertaken to pay the
mortgage debt and hand over the suit property to the plaintiff's father. It
appears that part of the property out of R.8. 62/2 to the extent of four acres,
36 guntas was mortgaged to Hanmgond Balgonda Patil for Rs. 1,000 and two acres
and one gunta out of S. No. 62/3 was mortgaged to Virgonda and four other
persons. It was the case of the plaintiff that after the death of Hanmgond
Balgonda the first defendant repaid the debt to his widow Gangabai and obtained
possession of the hypotheca but instead of handing over possession to the
plaintiff's father as stipulated in the sale deed he retained the possession.
In respect of the other two acres and one gunta which was mortgaged to Vironda
and others he alleged that the first defendant redeemed the mortgage and handed
over the possession to the plaintiff's mother as the guardian of the plaintiff
who was then a minor and that after the plaintiff's mother got into possession
of the property the Kolhapur government attached the property and took
possession of it in 1928 on the ground that the mortgage in favour of Virgonda
and others was contrary to Wat Hukums. However, it appears that on or about
3-3-51 attachment was vacated but the possession of this land was handed over
by the collector to the first defendant instead of the plaintiff from whose possession
it was taken. It was the plaintiff's case that both in respect of the property
that was mortgaged to Hanmgond Balgonda and that which was mortgaged to
Virgonda and others it was the first defendant that retained possession of the
said lands contrary to the stipulation and the sale effected in favour of the
plaintiff's father. It was also the plaintiff's case that Bhimgonda who was a
hissadar bhauband of the suit land which was a part of Patilki watan inam land
on the date of the sale deed dated 27-5-21 was entitled to claim possession of
789 the property on the strength of his title deed, as such the revenue court
erred in handing over possession of the portion of the suit property to the
first defendant on 3351.
The first defendant respondent No. 1
contended in his written statement that the suit being patilki watani service
inam property, its transfer was declared by watahukums of the Kolhapur State to
be illegal and void because neither the plaintiff nor his father' was either
the nawawala of the patilki watani service inam lands or the male members of
the senior branch of the senior family. It was also contended that the mortgage
in 1915 by the first defendant in favour of Hanamgonda was also contrary to wat
hukums and therefore void. Even apart from this defect the suit property was
never in the possession of the deceased Hanamgonda in his capacity as the
mortgagee but that it has always been in his possession as the owner thereof.
Accordingly the suit was barred by limitation. On these pleadings several
issues were framed but for the purposes of this appeal,having regard to the
arguments addressed before us only two issues are relevant, namely whether the
sale under exhibit 37 in favour of the father was void under the then
prevailing law in Kolhapur State and whether the suit was in time. It may be
mentioned that the trial court had dismissed the suit of the plaintiff but the
district judge in appeal allowed it, set aside the decree and remanded the suit
to the trial court for fresh disposal according to law with the direction that
the parties should be allowed to amend their pleadings. After remand the trial
court reframed the issues having regard to the amendment of the pleadings but
in so far as thing issues with which we are concerned it held against the
plaintiff and again dismissed the suit.
The plaintiff appealed to the district court
which allowed the appeal holding that the impugned alienation was legal and did
not offend any of the provisions of the hukums that were in force and that the suit
was within time. The, appeal to the High Court of Bombay was unsuccessful. The
High Court held that under the law in force alienation of service inams were
alone declared to be invalid but since the subject matter under appeal did not
pertain to the service inam land, the alienation was not void, nor was the suit
barred by reason of the defendant's adverse possession.
The question we are called upon to determine
in this appeal is whether according to the law in force as can be ascertained
from the relevant wat hukums and the provisions of the Bombay Hereditary
Offices Act III of 1874, as subsequently amended in so far as it is applicable
to the State of Kolhapur, the alienation of the patel-ki-watan inam land, is
void and whether the suit of the plaintiff- respondent is barred by limitation.
Before we embark upon an enquiry in respect of these two questions, it 790
would be necessary to understand the nature and significance of the wat hukum
and the terms used therein, appertaining to watans and inams. In the princely
State of Kolhapur, the word wat hukum has been used not only for the firmans or
decrees of the ruler but also for the orders issued by several authorities.
This indiscriminate use of the words has caused a great deal of confusion, and
no wonder the Supreme Court of that State had occasion to observe that they
constituted a "wilderness". This term, it was noticed, was not
confined to orders passed by the ruler but also referred to those orders which
were issued by the Chief Justice, by Sarsubha (the commissioner of revenue
division) and also even by sub-divisional officers like the prant officer who
corresponded to the deputy collector. But it was not every wat hukum that had
the force of law. Only those wat hukums which were purported to have been
expressly issued by the authority of the ruler whether they emanated from the
Prime Minister, the Political Agent, sarsubha or the grant officer, had the
force of law. All the other wat hukums which were issued by the several
officers as executive orders, did not have any legal force. We shall refer to
those relevant wat hukums which pertain to the inams in order to determine
whether those inam grants were inalienable and subject to the rule of
primogeniture. A watan or inam which in its primary sense means a gift was a
grant made by a ruler who had the power or authority to make these inams. These
inams were of several kinds, namely, religious. endowments, saranjams, service
inams, etc., but we are here concerned only with service inams. These service
inams have an origin of antiquity and go back to a feudal era where the ruler
administered the government through village administration by compensating
various services required to be performed by it generally by the grant of
lands. The servants or officers of the village who rendered these services were
known as salute and the number of them generally were twelve known collectively
as bara balute of which in Maratha villages and others where it was adopted the
village headman was one of such balute known as patel. There were others like
kulkarni (accountant), deshpandya (district accountant), washerman, barbar,
etc., with which we are not here concerned (vide Wilson's Glossary of Judicial
and Revenue terms). The land which was granted for the performance of each of
these services was hereditary and held subject to the terms of the grant in the
sanad which governed inheritance, inalienability, etc. The subject matter of
the suit as already noticed formed part of the patel-ki-watan land and was
situated in the Kolhapur State, where it is contended that according to the wat
hukums then in force a sale in favour of a bhauband of the vendor, but not a
nawawala was valid. The bhauband we are informed by the learned advocate for
the appellant, Shri Karkhanis, and it 791 is not denied by the respondents'
learned advocate, literally means kinsman or relative, has been translated as
watandar of the same watan in the Supreme Court, and kinsman by the translator
in the High Court. A reference to Wilson's Glossary shows that the word Bhau
means a brother, a cousin. There is no doubt that it refers to relatives of the
vendor. The word nawawala means the registered holder of the watan. An excerpt
from page 12 of V. S. Desai's book-The Kolhapur Inam Law-has been cited before
us namely that whenever the holder of an inam died, it became necessary to
undertake a succession inquiry "in order to ascertain the person
"upon whom the inam should descend and the person so designated "was
called the nawawala. He was the holder of the inam and had the right to render
service, if service had to be rendered." It was therefore urged by the
plaintiff that as both the vendor and the vendee belonged to the watandar's
family the transaction was valid under the wat hukums of the Kolhapur Darbar,
as such we will have to examine these wat hukums.
The first of the documents upon which
reliance is placed is wat hukum No. 76 of 1282 fasli issued on 13-4-1873. This
prohibits by cancelling all prior orders pertaining to service inams, the
partition and mortgage of watan lands, Para 7 of this wat hukum states that the
owner of the lands above-mentioned not being private property has no right to
alienate by way of mortgage, sale, gift, etc., and such transfer will not be
recognized by civil or revenue courts in the Kolhapur State. Only the right of
the person taking such land will be recognized. If deeds alienating by way of
mortgage, etc., as mentioned above are not executed from the owner and
registered in the government offices, such registration should not be construed
as approval of the government to such transfers. On 13-9-1876, the Political
Agent issued circular No. 28 of 1286fasli with reference to the wat hukum No.
12 of 1283 fasli issued on July 12,1871.
It said even though the wat hukum issued in
the year 1871 had declared that a person in whose name the watan was continued
should not give or take by way of mortgage, gift, etc., that provision is not
complied with and it was, accordingly, made known by that circular that those
who had mortgaged, etc., their lands should redeem within three months failing
which the lands will be forfeited. It added that even if the lands were
mortgaged hereafter they would be forfeited. Again on 4-8-1887, sarsubha issued
wat hukum No. 19 of 1297 fasli, after referring to the orders issued from time
to time that the watan lands of patel kulkarni, mahdra, etc., should not be
mortgaged or sold, it proceeded to make an exception in these words : "It
should not be understood that this order puts any restrictions on village
officers, patel kulkarni, etc., mortga- 792 ging, etc., their lands with
bhaubands". While all the previous wat hukums appear to have prohibited
alienations whether by way of sale or mortgage absolutely on pain of their
being forfeited if the provisions were not complied with, this wat hukum seems
to make an exception in favour of mortgages between bhaubands. Thereafter in
1896, wat No. 9 of 1306 issued by Sir Nayadhish (Chief Justice) cancelled all
wat hukum pertaining to service wat hukums issued prior to 1876. A subsequent
wat hukum 39 of 1305 issued- on 26-2- 1896 states that as some doubts had been
raised because of the use of vernacular words in wat hukum No. 19 of 4-8-1887
pertaining to watans of the watandars performing service, it was decided to
prohibit the watandars or his pot bhaubands from alienating watan in any form.
It was directed that an endorsement to this effect should be made on wat No. 19
dated 4-8-1897 and that the same. be brought into force.
This sarsubha wat was a huzur resolution
having the force of law. There are several other wat hukums namely sarsubha wat
hukum 35 of 1335 fasli dated March 12, 1904, sarsubha wat hukum 28 of 1318
fasli, but it is not necessary to deal with them as they do not 'refer to this
aspect of the matter. By sarsubha wat hukum No. 44 of 1322 fasli, dated
23-5-1913, it was mad-, known that "every inam of whatever type was
impartable and was to be continued with eldest son only. If any partition takes
place hereafter, government will not approve of it. Every partition effected
prior to this order will not be affected as this order will not have
retrospective effect." It is, therefore, seen that by this date not only
the alienation of service inams was prohibited but it was made impartible,
succession to which was to be governed by the law of primogeniture. Then we get
sarsubha wat No. 4 of 1323 fasli issued on 11-6-1913 approved by huzur
resolution No. 5 of 1913. This wat is translated thus :
"Prohibiting, morgaging or alienating in
any other form the impartible inams.
Be it known that there is a ban on mortoaging
or disposing of in any manner like other service watans the inams which have
been declared impartible by the foregoing wat hukum and that all the wat hukums
prohibiting such alienation issued so far are applicable to the inams declared
impartible by the wat No. 44.
This will come into force from the date of
the Gazette." The trial court points out that there were certain decisions
of the Kolhapur High Court which lay down that alienation of whatever type of
inam was prohibited except a sale to the nawawala but they were based on the
presumption that these two wat hukums 44 of 1322 and 4 of 1323 are in
existence.
It was further stated 793 that these wat
hukums were omitted by wat hukum 40 of 1917, as can be seen from the list of
the non-existing wat hukums given at p. 10 of appendix to vol. II of the
collection of wat hukums. Though it is stated that the wat hukum 40 of 1917 was
not available but from the first column it appears that it was not in force in
respect of two categories of inams mentioned in it which categories do not
include the service inams. There is another sarsubha wat 4 of 1533 fasli issued
on 28-3-24 for granting permission only to Nawawala wajirdars watandars to
purchase lands from pot bhaubands. These two wats Nos. 4 of 1323 and 4 of 1333,
it is said, vary the absolute prohibition against alienation by permitting
patel-ki-watan service inam to be mortgaged like other service inams, though
alienation would be void if it is made in favour of any one other than bhauband
and without permission even to bhaubands. It was sought to be contended before
the High Court and also before us that though initially under the Bombay
Hereditary Offices Act III of 1874, which was made applicable to the State of
Kolhapur by notification of 1297 fasli published in the Karvir State Gazette
(Kolhapur) on 3-3-1888, sec. 5 which prohibited the alienation if not made with
the sanction of the government, was substituted by a subsequent amendment by
Bombay Act V of 1886. This amended section, however, only prohibited
alienations in any form in favour of any person who was not a bhauband beyond
the natural life-time of the watan holder.
This amended provision also was applied to
the Kolhapur State in the same way as the main Act was applied. It is, however
urged that the Bombay watan Act and the amendment were only applied in spirit
that is according to the obvious meaning or import unlike other acts which were
applied to the Kolhapur State in their entirety without any limitation.
But the High Court of Bombay did not find it
necessary to go into the question as to whether the Bombay Act or its amendment
applied in letter or spirit, because according to it, the Kolhapur law was also
precisely the same as the law prevailing in the Bombay State. We have already
set out the various wat hukums and are of the view that the alienations by way
of sale at any rate were prohibited in so far as application of the Bombay Act
and its amendment is concerned, we are one with Gajendragadkar, J. as he then
was when delivering the judgment of the full bench consisting of himself,
Chagla, C.J. and Shah J. as he then was, in Ramappa Vanappa Akale v. Laxman
Malyappa Akale(1), observed:
"The decision of this question has been
made somewhat difficult by reason of the fact that in the State of Kolhapur the
Watan Act has been made applicable in spirit' and there are a large number of
vat-hukums (1) 62 B.L.R. 839,841.
794 issued in respect of questions relating
to inami lands from time to time. In dealing with the questions pertaining to
the watans the courts in Kolhapur have therefore to consider this mass of
vat-hukums and apply them to the facts before them. In doing so they have also
to bear in mind the fact that the spirit of the Watan Act had also been made
applicable to the State. Mr. Justice Madgavkar who presided over the Supreme
Court at Kolhapur for several years strongly criticised the application of the
Watan Act in spirit only on the ground that he was unable to understand what
such an application of the spirit of the Act really meant. 'Either an Act in
any or all of its sections, applies, or it does not', observed Madgavkar J. 'To
apply it in the spirit but not in the letter is beyond the power of the
courts........... With respect we agree with this criticism made by Mr. Justice
Madgavkar." What the full bench was dealing with the question whether
under the wat hukums of the Kolhapur State, the sanadi inam land which was
impartible reverts to the State on the death of the holder, and after an
examination of all the wat hukums it expressed the view that whatever the
restrictions may be upon that land which does not make the property the
absolute property of the watandar, that property does not revert to the State
but descends to the next heir by the rule of primogeniture. We are not
concerned with that aspect of the matter but only with ,lie question whether
the alienation in favour of the plaintiff's father was valid, and we think on
the construction of the various wat hukums that it was not. We agree with the
full bench that the Bombay Hereditary Offices Act (watan Act) did not apply to
the Kolhapur State so as to override the specific directions of the wat hukums
which had legal and binding force in that State. It may be observed that
notification of 3-3-1888 whereby certain laws in force in what was then British
India were applied in toto with modifications but the Watan Act is applied only
"to go according to the obvious meaning or import". What was perhaps
intended was that where there were no specific hukums the general principles of
the Watan Act may be applicable. At any rate in this case as there is a
specific prohibition from alienating patel-ki-watan and other similar inams we
need not rely on the provisions of the Bombay Act.
On the other question namely whether the suit
is barred by limitation, we are of the view that it is not. The facts as
narrated will show that in one case possession was given to the plaintiff's
widow after the mortgage was redeemed. But the collector under 795 a
misapprehension effected a forfeiture and took possession but subsequently
perhaps realising the mistake, released the property but handed over possession
to the wrong person namely the defendant. It is only after that a right would
accrue to the plaintiff to file a suit for ejectment and for recovery of
possession on the ground of his title. There is no validity in the submission
made on behalf of the defendant that the plaintiff was out of possession from
1928 till the date of suit-April 17, 1953. Article 142 has no application
because the suit is not against the defendant on the ground that he has been
dispossessed by him but against a person who is not entitled to possession. The
defendant did not dispossess the plaintiff, and as such art. 142 is not
applicable at all. In any case, it is not necessary to co into this question in
any great detail, because in the view we have taken upholding the defendant's
plea that the said alienation is void the plaintiff's suit must fail.
The appeal is accordingly allowed, the
judgment and decree of the High Court, set aside and that of the trial court,
restored with costs here and below.
Y.P. Appeal allowed.
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