Dandu Kallappa Patil & Ors Vs.
Balagonda Sultangouda Patil [1969] INSC 234 (11 September 1969)
11/09/1969
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 mail 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.
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.
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 mail 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 344 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 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 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 'Nashtamsha' 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 346
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 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.
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