Nagesh Bisto Desai Vs. Khando Tirmal
Desai [1982] INSC 28 (2 March 1982)
SEN, A.P. (J) SEN, A.P. (J) REDDY, O.
CHINNAPPA (J) ISLAM, BAHARUL (J)
CITATION: 1982 AIR 887 1982 SCR (3) 341 1982
SCC (2) 79 1982 SCALE (1)418
CITATOR INFO :
F 1984 SC1121 (12,18)
ACT:
Bombay Pargana and Kulkarni Watans Abolition
Act 1950- Section 4(1) and Bombay Merged Territories Miscellaneous Alienations
Abolition Act 1955-Section 7-Scope of-Watan properties if impartible-Members of
joint family-If entitled to a share in the watan properties.
HEADNOTE:
The plaintiff's rather was the last holder of
the office of Desai. After his death the plaintiff, who was his eldest son, was
recognised as the watandar. In 1904 service appurtenant to the office of Desai
was commuted by the imposition of 'judi' or quit-rent. Under s. 4 (1) of the
Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 and s. 7 of the Bombay
Merged Territories Miscellaneous Alienations Abolition Act, 1955 all the watan
lands were re- granted to the plaintiff and he was deemed to be the occupant
thereof within the meaning of the Bombay Land Revenue Code.
The plaintiff (appellant) filed a suit
against respondents who were members of a joint Hindu family holding properties
described as Kundgol Deshgat Estate claiming a declaration that the estate
formed an impartible estate governed by the rule of lineal primogeniture. The
plaintiff claimed that as the present holder of the office of Desai he was
entitled to remain in full and exclusive possession and enjoyment of the suit
properties and that other members of the family had no right, title or interest
therein but were only entitled to maintenance and residence and in the
alternative for partition and separation of 1/6 share therein.
Denying all the plaintiff's claims the
respondents pleaded that the entire properties belonged to the joint Hindu
family and were therefore liable to be partitioned.
Rejecting all the claims of the appellant the
Trial Court held that the properties belonged to the joint Hindu family and
were therefore partible.
On appeal the High Court, subject to a
modification, upheld the decree of the court of first instance.
The question at issue in the appeal to this
Court was whether, (1) even assuming that the estate was impartible and
governed by the rule of lineal primogeniture by custom as pleaded, the
incidents of impartibility as well as the rule of 342 lineal primogeniture
being nothing more than an incident of the watan, stood abrogated by s. 3(4) of
the 1950 Act and s. 4 of the 1955 Act and as such it was not open to the
plaintiff to make any claim on the basis of the alleged custom, (2) with the
resumption of the watan and the re- grant of the watan lands to him, the suit
properties lost their character as being joint family property and had become,
under the provisions of the 1950 and 1955 Acts, the plaintiff's exclusive
property by reason of his status as watandar and as such were not capable of
being partitioned.
Dismissing the appeal,
HELD: It is well settled that property though
impartible may be the ancestral property of the Joint Hindu Family. The
impartibility of the estate does not per se destroy its nature as joint family
property or render it the separate property of the last holder, so as to
destroy the right of survivorship; hence, the estate retains its character of
joint family property and its devolution is governed by the rule of
survivorship. To establish that a family governed by the Mitakshara in which
there is an ancestral impartible estate has ceased to be joint, it is necessary
to prove an intention, express or implied, on the part of the junior members of
the family to renounce their succession to the estate. [354 C-D] Martand Rao v.
Malhar Rao, [1928] 55 IA 45: AIR 1928 PC 10: 107 IC 7: Adrishappa v. Gurushidappa,
(1880) 7 IA 162:
ILR (1880) 4 Bom. 494: 7 Cal. LR 1 (PC);
Vinayak Waman Joshi Rayarikar v. Gopal Hari Joshi Rayarikar, [1903] 30 IA 77:
ILR (1903) 27 Bom. 353: 7 Cal. WN 409; Shiba
Prasad Singh v. Rani Prayag Kumari Debi, (1932) 59 IA 331: AIR 1932 PC 216:
138 IC 861; Collector of Gorakhpur v. Ram
Sunder Mal, (1934) 61 IA 286: AIR 1934 PC 157: CIT v. Dewan Bahadur Dewan
Krishna Kishore, (1941) 68 IA 155: AIR 1941 PC 120; Anant Bhikappa Patil v.
Shankar Ramchandra Patil, (1943) 70 IA 232: AIR 1943 PC 196 and Chinnathayi v.
Kulasekara Pandiya Naicker, [1952] SCR 241;AIR 1952 SC 29, relied on.
Mirza Raja Shri Pushavathi Viziaram Gajapathi
Raj Manne Sultan Bahadur v. Shri Pushavathi Visweswar Gajapathi Raj, [1964] 2
SCR 403: AIR 1964 SC 118 and Rajah Velugoti Kumara Krishna Yachendra Varu v.
Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu, (1969) 3 SCC 281: [1970]
3 SCR 88:
AIR 1970 SC 1795, distinguished.
Neelkisto Deb Burmono v. Beerchunder Thakoor,
(1867-69) 12 MIA 523; Rani Sartaj Kuari v. Rani Deoraj Kuari (1888) 15 IA 51:
ILR (1888) 10 All 272 (PC); Rama Krishna Rao Bahadur v. Court of Wards, (1899)
26 IA 83: ILR (1899) 22 Mad. 383 (PC); Raja Ram Rao v. Raja of Pittapur, (1918)
45 IA 148:
AIR 1918 PC 81; Baijnath Prasad Singh v. Tej
Bali Singh, (1921) 48 IA 195: AIR 1921 PC 62 and Bhaiya Ramanuj Pratap Deo v.
Lalu Maheshanuj Pratap Deo (1981) 4 SCC 613, referred to.
2. The plaintiff's contention runs counter to
the scheme of the Bombay Hereditary offices Act, 1874, and is against settled
legal principles. The plain 343 tiff's rights to such watan properties,
whatever they were, were subject to the rights of the other members of the
family. [359 C-D] In the former Bombay Presidency, a Desghat watan had always
been treated to be the joint family property and the grant of watan to the
eldest member of a family did not make the watan property the exclusive
property of the person who was the watandar for the time being.
3. The definition of the term
"watandar" as contained in s. 4 of the Bombay Hereditary offices Act
is in two parts: the first sets out what "watandar" means and the
other states what is included in it, that is, the entire definition of watandar
must be looked upon as one, the latter part being supplementary and additional
to what is contained in first part. Thus, a person who acquired watan property
or held hereditary interest in it without acquiring the hereditary office and
without being under an obligation to perform the services attached to such
office was also a "watandar" within the meaning of the Watan Act.
There can be no doubt that the Watan Act was designed to preserve to pre-
existing rights of the members of a joint Hindu family. The expression
"watandar of the same watan" would include members of the family other
than the watandar, who were entitled to remain in possession and enjoyment of
the watan property. [359 G-H 361 F] Vijyasingrao Balasaheb Shinde Desai v.
Janardanrao Narayanrao Shinde Desai, 51 Bom. LR 556: AIR 1949 Bom. 314;
Kadappo Bapurao Desai v. Krishtappa Bachappa
Desai, 37 Bom.
LR 599: AIR 1935 Bom. 380 and Laxmibai
Sadashiv Date v. Ganesh Shankar Date, (1977) 79 Bom. LR 234: AIR 1977 Bom.
350, approved.
Tarabai Sriniwas Naik Guttal v. Murtacharya
Anantacharya, 41 Bom. LR 924: AIR 1939 Bom. 414, overruled.
4. The commutation of service under s. 15(3)
of the Watan Act by which the watandars were relieved in perpetuity from
liability to perform the services attached to their offices in consideration of
'judi' or quit-rent charged upon the watan land unless where it was otherwise
provided for, had not the effect of converting watan land into the private
property of the watandars with the necessary incident of the alienability, but
to leave them attached to the hereditary offices, which although free from the
performance of services, remain in tact. Despite commutation of service, the
office of watandars ordinarily survived without liability to perform service,
and on that account the character of the watan lands still remained attached to
the grant. [364 D-F] Collector of South Satara v. Laxman Mahadev Deshpande,
[1964] 2 SCR 48: AIR 1964 SC 326, relied on.
Appaji Bapuji v. Keshav Shamrav, ILR (1891)
15 Bom. 13, referred to.
Bachharam Datta Patil v. Vishwanath Pundalik
Patil, [1956] SCR 675: AIR 1957 SC 34: 1956 SCJ 721, referred to.
5. The impartibility of the watan lands of
the applicability or the rule of lineal primogeniture regarding succession to
the estate, by the alleged custom as pleaded, being nothing more than an
incident of the watan, stood extinguished by s.3(4) of the 1950 Act and s.4 of
the 1955 Act. The effect of these Acts was to bring out a change in the tenure
or character of holding as watan lands but they did not affect the other legal
incidents of the property under the personal law. That being so, the members of
a joint Hindu family must be regarded as holders of the watan land along with
the watandar for the time being and therefore regrant of the lands to the
watandar under s. 4(1) of the 1950 Act and under s. 3 of the 1955 Act must
enure to the benefit of the entire joint Hindu family. [365 C, E; 367 E]
6. Section 4(2) of the 1950 Act and s. 7(3)
of the 1955 Act do not create a statutory bar to a transfer or a partition once
the conditions mentioned therein are fulfilled. [370 B] Laxmibai Sadashiv Date
v. Ganesh Shankar Date, (1977) 79 Bom. LR 234: AIR 1977 Bom. 350 and Dhondi
Vithoba Koli v. Mahadeo Dagdu Koli, (1973) 75 Bom. LR 290: AIR 1973 Bom.
323, approved.
Kalgonda Babgonda Patil v. Balgonda Kalgonda
Patil, (1975) 78 Bom. LR 720, overruled.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 615- 617/73,618-20/73 and 1850 to 1852 of 1972.
From the Judgment and Decree dated the 22nd
June, 1962 of the Mysore High Court at Bangalore in Regular Appeal No. 157/56
Regular Appeal (B) No. 16/57 & RA (B) 6 of 1958.
U.R. Lalit, S.S. Javali D.P. Singh & Ravi
Parkash, for the Appellants in CA. 1850-52/72, R-5 in CA. 615/73, R-2 in CA.
616/73, R-6 in CA. 617/73 and R-3 in CA. Nos. 618-20/73.
B.D. Bal, R.B. Datar & Miss Madhu
Moolchandani, for the Appellant in C.A. Nos. 615-617/73, R-5 in CA. Nos. 1850-
52/72 & for R-1 in CA. Nos. 618-620/73.
S.T. Desai, K. N. Bhat & Nanjappa Ganesh
for Appellant in CA. 618-620/73, RR 2 and 3 in CA. 1850 to 1851/72, RR. 2,3,17
& 18 in CA. 1852/72, RR 2,3 in CA. 616/73, RR 10 & 11 in CA. 616/73
& for RR 1, 2, 4,5 in CA. 617/73.
S.B. Bhasame, K.A. Naik, & M.R.K. Pillai
for R-1 in CA.
Nos. 1850-52/72, CA 615-16/73, R-14 in CA.
617/73 and R-2 in CA. 618-620/73.
K.R. Nagaraja & Alok Bhatacharya for R-12
in CA. Nos.
1850-52/72, CA. 615/73, R-9 in CA. 617/73,
R-13 in CA.
617/73 and R-10 in CA, 618-620 of 1973.
345 P.R. Ramasesh, for RR 13, 15 (a) to (c)
in CA. 1852/72, RR 15 & 17 in CA. 617/73 and RR 11, 14 (a) (c) and (d) in
CA. 618/73.
The Judgment of the Court was delivered by
SEN, J. These nine consolidated appeals on certificate are directed from a
common judgment and decree of the High Court of Mysore at Bangalore dated June
22, 1962 which affirmed, subject to a modification, the judgment and decree of
the Civil Judge, Senior Division, Dharwar, dated July 5, 1956, substantially
dismissing the plaintiff's claim for declaration of title to, and possession
of, certain watan properties and decreeing instead his alternative claim for
partition and separate possession of his one-sixth share therein.
The principal question in controversy in
these appeals is whether ss. 3 and 4 of the Bombay Paragana and Kulkarni Watans
Abolition Act, 1950 (for short 'Act No. 60 of 1950') and ss. 4 and 7 of the
Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 (for
short 'Act No. 22 of 1955'), which provided for abolition of watans and
alienations in the merged territories, resumption of watan land and its
re-grant, to the holder for the time being, which brought about a change in the
tenure or the character of holding as watan land, affect the other legal
incidents of the property under personal law.
The suit out of which these appeals arise,
was instituted by the appellant Nagesh Bisto Desai, as plaintiff, claiming
against his two brothers Ganesh Bisto Desai and Gopal Bisto Desai defendants
Nos.2 & 3, mother Smt. Akkavva alias Parvathibai, defendant No. 4, brother
Bhimaji Martand Desai, defendant No.5 who had gone in adoption to Martand,
member of a junior branch and father's brother' son Khando Tirmal Desai,
defendant No. 1, a declaration that the properties described in Schedules B and
C appended to the plaint, called the Kundgol Deshgat Estate, situate in the
district of Dharwar in the State of Karnataka, formed an impartible estate and
governed by the rule of lineal primogeniture and that the plaintiff being the
present holder of the office of Desai was entitled to remain in full and
exclusive possession and enjoyment of the suit properties and that the other
members of the family had no right, title or interest therein but were only
entitled to maintenace and residence, for exclusive possession of the family
residential house at Kundgol known as Wada described in Schedule B part 2 from
the defendants Nos. 2 to 5, for exclusive possession of insignia of honour
described in Schedule E and one-third share in the family movables described
346 in Schedule D. Alternatively, in the event of the Court holding that the
properties described in Schedule B, C and D, were properties belonging to the
joint Hindu family, the plaintiff claimed partition and separate possession of
his one-sixth share therein.
It will be convenient, in the first place, to
refer briefly to the history of the estate, to set out the pedigree showing the
descent from a common ancestor and to show how the present case arose.
The plaintiff's suit is brought on the
allegation that the Deshgat family of Kundgol Paragana of which the plaintiff
and the defendants 1 to 4 are members is a very ancient and respectable one in
the State of Jamkhandi which later merged in the then Province of Bombay and is
now in the State of Karnataka. The lands and cash allowances described in
Schedule B para (i) and (iii) are the emoluments of the district hereditary
office of Desai.
Abkari is the compensation given to the Desai
family by the British Government when it took over the control of today and
liquor in Hanchinal Inam Village from the Deshgat family. This amount, together
with the cash allowance and the service lands appurtenant to the office of
Desai and the houses and open sites form the impartible estate called the
Kundgol Deshgat Estate, which was partly located within the territory of former
feudatory State of Jhamkhandi and party in the territories of the then British
India. The first inam was granted at the time of Thimappa in 1575. All the
properties constituting the Deshgat were acquired under grants made by the
Sultans and Rulers of Bijapur during the period from 1575 A.D. to 1694 A.D.
with a couple of other grants received from the Chief of Jamkhandi during the
period from 1120 A.D. to 1826 A.D. The watan has remained with the family which
held the hereditary office of Desai for over four centuries. In 1904, service
appurtenant to the office of Desai was commuted by the imposition of a
"judi" or quit-rent. Properties described in Schedules F and G have
been in possession of the two junior branches descended from Gundopant and
Lingappa from 1825 A.D. and 1854 A.D.
respectively and are being enjoyed by them
even now.
The plaintiff's father, Bistappa, the last
holder of the office of Desai died on July 27, 1931 leaving behind him his
widow Smt. Akkavva and four sons, Nagesh, Bhimrao, Ganesh and Gopal. Out of
them, Bhimarao had gone in adoption to Martand. member of a junior branch. Upon
his father's death the plaintiff Nagesh Bisto Desai was recognised to be the
watandar. The plaintiff's cousin is Khandappa The subjoined genealogical table
gives the relationship of the parties belonging to the senior branch descended
from Thimappa.
347 GENEALOGICAL TABLE Thimppa |
------------------------------- | | | Khanderao Pantoji Gundopant | | Thimappa
Nilkant | | -------------------- | | | | Ramappa Nagappa Mallappa | | |
Bistappa --------------- | (adopted) | | | | Imnagappa Bistappa Mortand | (went
in adoption) | | Bhimraw | (Adopted Deft.5) ------------------------------ | |
Bistappa(died 1931) Trimallappa =Smt. Akkevva (Deft 4) | | Khandappa | (Deft.
1) ------------------------------------------------------ | | | | Nagesh
Bhimrao Ganesh = Smt. Indirabai Gopal = (pantiff) (went adoption (Deft. 2)
(Deft. 9) (Deft.3) to Martand) Smt. Kashibai (Deft. 10) 348 It appears that
after the death of the plaintiff's father in 1931, in the mutation proceedings
that followed, the plaintiff first made a claim that the watan being impartible
according to the custom of the family, he became the exclusive owner of the
entire watan properties. Although his brothers Ganesh Bisto Desai and Gopal
Bisto Desai, defendants 2 and 3 had at first consented to mutation of the watan
in his name they later resiled from that position and the strongest opposition
came from the plaintiff's uncle Tirmal, father of Khando. In consequence of
this, the plaintiff accepted before the revenue authorities that the properties
belonged to the joint Hindu family and refrained from making any claim on the
footing of the properties being impartible. In 1945, the plaintiff's brother
Bhimarao defendant No. 5 who had gone in adoption to Martand, started asserting
a claim to 7 Mars of land and right of residence in the family Wada and this
had the support of the plaintiff's mother Smt. Akkavva. The defendant No. 5
Bhimarao in assertion of his claim brought Special Suit No.
51 of1949, in the Civil Court at Kundgol on
the basis of the properties being impartible. In June 1946, the plaintiff
leased out some home farm lands to defendants 6, 7 and 8, and this gave rise to
proceedings under s. 144 of the Code of Criminal Procedure, 1898. The
Sub-Divisional Magistrate Kundgol passed an order restraining defendants 2, 3
and 5 from disturbing the possession of defendants 6, 7 and 8 and this order
was kept in force by the former State of Jamkhandi till merger in the former
State of Bombay in August, 1948. The State Government revoked the order with
effect from December 15, 1948, as a result of which the defendents 6, 7 and 8
brought suits for injunction. Due to discord in the family, the plaintiff left
the ancestral residential house at Kundgol and started residing in his bungalow.
The plaintiff has admittedly been regranted all the watan land under sub-s. (1)
of s. 4 of Act No. 60 of 1950 and s. 7 of Act No. 22 of 1955 as if it were an
unalienated land, being the holder of the watan to which it appertained, and he
is deemed to be an occupant thereof within the meaning of the Bombay Land
Revenue Code, 1879.
The defendants filed separate written
statements and repudiated the plaintiff's claim of impartibility. They denied
that the suit 349 properties formed an impartible estate and that succession to
the estate was governed by the rule of lineal primogeniture. The defendant No.
1 asserted that there had been at least three partitions in the family.
According to him, the allotment of the properties described in Schedules F and
G to the two branches of Gundopant and Lingappa represented allotment of shares
on partition. He pleaded that all the properties described in Schedules B C D
and E were joint family properties and claimed one-half share therein. The
defendants Nos. 2 and 3, in their written statement, also asserted that the
properties described in Schedules F and G to the two branches of Gundopant and
Lingappa were shares allotted to them on partition. The defendant No. 4
supported the case pleaded by her sons defendants Nos. 2 and 3. The defendant
No. 5, however, pleaded that there had never been a partition in the family and
that the entire properties, that is to say, the properties described in the
plaint Schedules B to G continued to be joint family properties wherein he claimed
one-fourth share. The remaining defendants also denied that the suit properties
were impartible.
The learned trial Judge rejected the
plaintiff's claim that he was entitled to remain in full and exclusive
possession and enjoyment of the aforementioned properties being the watandar of
the Kundgol Deshgat Estate and that other members had no right, title or
interest therein except as to maintenance as junior members and held instead
that properties belonged to the joint Hindu family and were, therefore,
partible. He further held that the properties described in Schedules F and G in
possession of the junior branches of Gundopant and Lingappa were not allotted
to them as their share on partition and therefore had to be put into the
hotchpotch. He accordingly passed a preliminary decree for partition, declaring
the plaintiff's share to be one- twentyfourth of the entire estate and to other
minor reliefs. On appeal, the High Court upheld the judgment of the trial
Judge, holding that the suit properties were not impartible and were therefore
liable to partition, but it set aside 350 the direction with regard to
Schedules F and G properties on the finding that the two branches of Gundopant
and Lingappa had separated from the joint family. It accordingly modified the
decree of the learned trial Judge and held that the plaintiff was entitled to
one-sixth share in the properties described in Schedules B to E.
Arguments in these appeals have been confined
to the question as to whether, as a matter of law, even if it were assumed that
the plaintiff had succeeded in proving that the Kundgol Deshgat Estate was an
impartible estate, and that succession to it was governed by the rule of lineal
primogeniture, the incident of impartibility of the watan as well as the rule
of lineal primogeniture stand extinguished by Act No. 60 of 1950 and Act No. 22
of 1955, and it is no longer open to the plaintiff to make any claim on the
basis of the alleged custom of impartibility or the rule of lineal
primogeniture.
The questions that fall for determination in
these appeals are, firstly, whether the impartibility of the tenure of a
paragana watan appertaining to the office of a Hereditary District (Paragana)
officer in respect of which a commutation settlement has been effected, regulating
succession to the property, by reason of family custom or a local custom being
the incidents of such watan stands abolished by virtue of s. 3 of Act No. 60 of
1950 or s. 4 of Act No. 22 of 1955, and, secondly, whether the watan lands lost
the character of being joint family property with the resumption of the watan
under s. 3 of Act No. 60 of 1950 or s.4 of Act No. 22 of 1955 and re-grants
thereof were exclusive to the plaintiff under s. 4 of Act No.22 of 1955, by
reason of his status as the watandar and therefore, they belonged to the
plaintiff and were not capable of partition There is no merit in any of these
submissions.
It is argued that impartibility of the tenure
was not an incident of the grant but the watan was impartible by custom and
succession to it was governed by the rule of lineal primogeniture. Our
attention is drawn to the averment contained in paragraph 3 of the plaint:
"The Kundgol Deshgat Estate, along with
the estates of two other District Hereditary offices of Nadgir and 351 Deshpande
of Kundgol is impartible by custom and succession to it is governed by the rule
of lineal primogeniture. This custom is ancient, invariable, definite and
reasonable. It is both a family custom and also a local custom prevailing in
the families of Paragana Watandar of Kundgol .........................."
It is urged that in case of an impartible estate, the right to partition and
the right of joint enjoyment are from the very nature of the property incapable
of existence and therefore, the courts below were in error dismissing the
plaintiff's claim for a declaration that being the present holder of the office
of Desai he was entitled to exclusive possession and enjoyment of the suit
properties. It is further urged that even assuming that impartibility of the
estate or the rule of primogeniture regulating succession were an incident of
the watan the suit properties lost the character of being joint family property
with the resumption of the watan and the re-grants of the suit lands were
exclusively to the plaintiff under sub-s. (1) of s 4 of Act No. 60 of 1950 and
sub-s. (1) of s. 7 of Act No. 22 of 1955, by reason of his status as the
watandar and, therefore, they exclusively belonged to the plaintiff and they
were not capable of being partitioned. There is no merit in the submission.
The decision of these appeals must turn on
the question whether the impartibility of the estate and the rule of lineal
primogeniture by which succession to it was governed makes the suit properties
the self acquired or exclusive properties of the plaintiff and, therefore,
cannot be partitioned by metes and bounds between the members of the joint
family. In Martand Rao v. Malhar Rao,(1) the Privy Council ruled as follows :
"If an impartible estate existed as such
from before the advent of British Rule, any settlement or regrant thereof by
the British Government must, in the absence of evidence to the contrary, and
unless inconsistent with the express terms of the new settlement, be presumed
to continue the estate with its previous incidents of impartibility and
succession by special custom." It also held in that case :
352 "When there is a dispute with
respect to an estate being impartible or otherwise the onus lies on the party
who alleges the existence of a custom different from the ordinary law of
inheritance, according to which custom the estate is to be held by a single
member, and as such, not liable to partition. In order to establish that any
estate is impartible, it must be proved that it is from its nature impartible
and decendible to a single person, or that it is impartible and descendible by
virtue of a special custom." "Any such special custom modifying the
ordinary law of succession must be ancient and invariable and must be
established to be so by clear and unambiguous evidence." The courts below
in their well considered judgments have considered minutely and elaborately the
whole of the evidence, both oral and documentary, led by both the parties on
the question of custom, and have come to a definitive finding that the evidence
is of little or no assistance to establish the alleged custom pleaded by the
plaintiff as to the impartibility of the estate or the rule of lineal
primogeniture. They have held in favour of the defendants on this basic issue
and substantially dismissed the plaintiff's suit claiming full and exclusive
title. That part of the judgment has rightly not been assailed before us, and
the argument has proceeded on the footing that even if the Kundgol Deshgat
Estate were an impartible estate, and that succession to it was governed by the
rule of lineal primogeniture the incidents of impartibility of the watan as
well as the rule of lineal primogeniture stand extinguished by Act No. 60 of
1950 and Act No. 22 of 1955.
It has always been the accepted view that the
grant of watan to the eldest member of a family did not make the watan
properties the exclusive property of the person who is the watandar for the
time being. In order to understand the arguments on this point, it is necessary
to deal with the incidents of a Deshgat watan. In the Bombay Presidency, it has
always been treated to be the joint family property. It may be worthwhile to
refer to the decision of the Privy Council in Adrishappa v. Gurshindappa,(1)
the headnote of which is that :
353 "Deshgat watan or property held as
appertaining to the office of Desai is not to be assumed prima facie to be
impartible. The burden of proving the impartibility lies upon the Desai, and on
his failing to prove a special tenure or a family or district or local custom
to that effect, the ordinary law of succession applies." In a suit for
partition of property forming part of a Deshgat estate brought by the younger
brothers against their eldest brother who held the hereditary district office
of Desai, partly within the State of Jamkhandi and partly within the territory
of British India, the defence was that the watan was held by him as an
impartible estate and that he was entitled being the watandar to be in full and
exclusive possession thereof, subject to a right by custom, that a brother
should receive maintenance out of the income derived from it. The Court of
first instance having found that there was no invariable rule against the
partition of a Deshgat watan, the High Court refused to allow effect to be given
to what had not been proved to be "the established governing rule of the
family, class or district" sufficient to establish the impartibility of
the estate and held that the watan in question was subject to the general Hindu
law, including the presumption as to the right to partition belonging to the
members of the family to which it had descended. The Judicial Committee upheld
the decision of the High Court holding that there was no general presumption in
favour of the impartibility of an estate of this kind as to shift the burden of
proof; the burden of proof was upon the Desai, who seeks to show that the
property devolved upon him alone, in contravention of the ordinary rule of
succession according to the Hindu law, and that no sufficient evidence had been
given by the watandar either of family custom, or of district custom, to
prevent the operation of the ordinary rule of law whereby the property would be
partible.
In Vinayak Waman Joshi Rayarikar v. Gopal
Hari Joshi Rayarikar & Ors.,(1) the Court of first instance held that by
custom a Deshgat Inam had become impartible and hence dismissed the suit for
partition. On appeal, the High Court reversed upon the view that the mere fact
that the management remained in the hands of the eldest branch was not
sufficient to 354 establish the plea that the estate was impartible. While
affirming the decision of the High Court, the Privy Council followed its
earlier decision in Adrishappa's case (supra), and agreed with the conclusion
arrived at by the High Court that :
"Neither by the terms of the original
grant nor of the subsequent orders of the ruling power, nor by family custom,
nor by adverse possession (if such there could be in a case like this, the
eldest branch of the family acquired a right to perpetual management of the
village or in consequence to resist its partition)." It is a trite
proposition that property though impartible may be the ancestral property of
the joint Hindu family. The impartibility of property does not per se destroy
its nature as joint family property or render it the separate property of the
last holder, so as to destroy the right of survivorship; hence the estate
retains its character of joint family property and devolves by the general law
upon that person who being in fact and in law joint in respect of the estate is
also the senior member in the senior line.
As observed by Sir Dinshaw Mulla in his
celebrated judgment in Shiba Prasad Singh v. Rani Prayag Kumari Debi & Ors
(1) "The keynote of the whole position, in their Lordships view, is to be
found in the following passage in the judgment in the Tipperah case :(2)
"Where a custom is proved to exist, it supersedes the general" law,
which, however, still regulates all beyond the custom" "Impartibility
is essentially a creature of custom. 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 of the family except for necessity,
(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 355 is incompatible
with the custom of impartibility as laid down in Sartaj Kuari's(1) case and the
first Pittapur case;(2) and so also the third as held in the second Pittapur
case.(3) 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, therefore, still
remains, and this is what was held in Baijnath's case.(4) To this extent the
estate still retains its character of joint family property, and its devolution
is governed by the general Mitakshara law applicable to such property. Though
the other rights which a coparcener acquires by birth in joint family property
no longer exist, the birth-right of the senior member to take by survivor ship
still remains. Nor is this right a mere spes succession is similar to that of a
reversioner succeeding on the death of a Hindu widow to her husband's estate.
It is a right which is capable of being renounced and surrendered. Such being
their Lordships' view, it follows that in order to establish that a family
governed by the Mitakshara in which there is an ancestral impartible estate has
ceased to be joint, it is necessary to prove an intention, express or implied,
on the part of the junior members of the family to renounce their right of
succession to the estate." Since the decision of the Privy Council in
Shiba Prasad Singh's case (supra), it is well-settled that an estate is
impartible does not make it the separate and exclusive property of the holder :
where the property is ancestral and the holder has succeeded to it, it will be
part of the joint estate of the undivided family.
The incidents of impartible estate laid down
by the Privy Council in Shiba Prasad Singh's case, supra, and the law as there
stated, have been reaffirmed in the subsequent decisions of the Privy 356
Council and of this Court : Collector of Gorakhpur v. Ram Sundar Mal &
Ors.!(1) Commissioner of Income Tax, Punjab. v. Krishna Kishore(2) Anant
Bhikappa Patil v. Shankar Ramchandra Patil (3) Chinnathavi Alias Veeralakshmi
v. Kulasekara Pandiya Naicker & Anr(4). Mirza Raja Shri Pushavathi Viziaram
Gajapathi Raj Manne Sultan Bahadur & Ors. v. Shri Pushavathi Viseswar
Gajapathi Raj & Ors.(5) Rajah Velugoti Kumara Krishna Yachendra Varu &
Ors. v. Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu & Ors.(6) and
Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo & Ors.(7) In
Collector of Gorakhpur v. Ram Sundar Mal's Case, supra, it was observed that
though the decision of the Board in Sartaj Kuari's case and the First
Pittapur's case appeared to be destructive of the doctrine that an impartible
zamindari could be in any sense joint family property, this view apparently
implied in these cases was definitely negatived by Lord Dunedin when delivering
the judgment of the Board in Baijnath Prasad Singh's case. In Commissioner of
Income Tax, Punjab v. Krishna Kishore's case dealing with an impartible estate
governed by the Madras Impartible Estates Act, 1904, it was held that the right
of junior members of the family for maintenance was governed by custom and was
not based on any joint right or interest in the property as co-owners. In Anant
Bhikappa Patil's case supra, it was observed that an impartible estate is not
held in coparcenary though it may be joint family property. It may develove as
joint family property or as separate property of the last male holder. In the
former case, it goes by survivorship to that individual, among those male
members who in fact and in law are undivided in respect of the estate, who is
singled out by the special custom e.g. lineal male primogeniture. In the latter
case, jointness and survivorship are not as such in point the estate devolves
by inheritance by the last male holder in the order prescribed by the special
custom or according to the ordinary law of inheritance as modified by the
custom.
357 In Chinnathavi's case. supra, it was
observed that the dictum of the Privy Council in Shiba Prasad Singh case,
supra, that to establish that an impartible estate has ceased to be joint
family property for purposes of succession, it is necessary to prove an
intention, express or implied, on the part of the junior members of the family
to give up their chance of succeeding to the estate. The test to be applied is
whether the facts show a clear intention to renounce or surrender any interest
in the impartible estate or a relinquishment of the right of succession and an
intention to impress upon the zamindari the character of separate property. In
Mirza Raja Gajapathi's case, supra, it was observed that an ancestral
impartible estate to which the holder has succeeded by the custom of
primogeniture is part of the joint estate of the undivided Hindu family. Though
the other rights enjoyed by the members of a joint Hindu family are
inconsistent in the case of an impartible estate, the right survivorship still
remains. In Rajah Velugoti Kumara Krishna's case, supra, it was observed that
the only vestige of the incidents of joint family property, which still attaches
to the joint family property is the right of survivorship which, of course, is
not inconsistent with the custom of impartibility. In Bhaiya Ramanuj Pratap
Deo's case, supra, the principles laid down by the Privy Council in Shiba
Prasad Singh's case were reiterated.
In the course of argument, great reliance was
placed on the two decisions of this Court in Mirza Raja Ganapathi's case, supra
and Raja Velugoti Kumara Krishna's case, supra, for the proposition that the
junior members of a joint family in the case of an ancient impartible joint
family estate take no right in the property by birth and therefore have no
right of partition having regard to the very character of the estate that it is
impartible. To our mind, the contention cannot be accepted. Both the decisions
in Mirza Raja Ganapathi's case, supra, and Raja Velugoti Kumara Krishna's case,
supra, turned on the provision of the Madras Estates (Abolition &
Conversion into Ryotwari) Act, 1948 and the Madras Impartible Estates Act,
1904. There are express provisions made in ss. 45 to 47 of the Abolition Act
for the apportionment of compensation to the junior members of zamindari
estates and sub.s (2) of s. 45 thereof provides for payment of the capitalised
value of the compensation amount to them on the basis of extinction of the
estate. The scheme of the Abolition Act therefore contemplates the continued
existence of the rights of the holder of an impartible estate vis-a-vis the
junior 358 members of such an estate. The facts involved in those cases were
also entirely different.
In Mirza Raja Ganapathi's case, supra it was
a suit for partition for Vizianagram Estate, an ancient impartible estate
governed by the Madras Impartible Estates Act 1904.
The claim of the junior members regarding
buildings which had been incorporated in the impartible estate as also their
claim with regard to jewels treated as state regalia and therefore impressed
with the family custom of impartibility was negatived. It was held that despite
the fact that Vizinagram Estate had been notified to be an estate within the
meaning of s.3 of the Madras Estate(Abolition and Conversion into Ryotwari)
Act, 1948, the extinguishment of the proprietary right, title and interest of
the zamindar did not affect his right or title to the impartible properties
outside the purview of that Act and governed by the Madras Impartible Estates
Act, 1904, but as regards other properties falling within the zamindari
including lands were held to be partible. With regard to the buildings, it was
held that the buildings in question were not partible by virtue of sub-s. (4)
of s. 18 of the Act as the buildings falling within the section vested in
"the person who owned them immediately before the vesting". The
expression "the person who owned" in sub-s. (4) of s. 18 of the Act
was held to refer to the land-holder and not to any other person. Further, the
buildings were outside the limits of the zamindari estate and therefore not
covered by s. 3 of the Abolition Act. The claim with regard to jewels failed
because they were part of the impartible estate.
In Raja Velugoti Kumara Krishna's case,
supra, it was a suit for partition by the junior members of Vankatgiri Estate,
an ancient impartible estate governed by the Madras Impartible Estates Act,
1904. The suit was principally confined to the claim for a share to the
Schedule B properties. The contention was that the impartibility was continued
under that Act but ceased when the estate vested in the State Government under
s. 3 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948
and this had the effect of changing character of the properties in the B
Schedule and making them partible. It was said that the junior members had a
present right in the impartible estate and were entitled to share in the
properties once it lost its character of impartibility. The Court had to
consider the effect of the Abolition Act on the rights and obligations of the
members of the family and held 359 that the Abolition Act has no application to
properties which are outside the territorial limit of the Venkatgiri Estate.
The claim that failed was in relation to properties which did not form part of
a `zamindari estate' within the meaning of s. 1 (16) and therefore did not come
within the purview of s. 3 of the Abolition Act but continued to be governed by
the Madras Impartible Estates Act, 1904.
The contention that the plaintiff holding the
District Hereditary Office of Desai and being the watandar of the Kundgol
Deshgat Estate was entitled to remain in full and exclusive possession and
enjoyment thereof to the exclusion of the other members of the joint Hindu
family, runs counter to the scheme of the Bombay Hereditary Offices Act, 1874
(for short `the Watan Act'), and is against settled legal principles. The
plaintiff's rights to such watan properties whatever they were, subject to the
rights of the other members of the family.
The terms `Watandar' is defined in s. 4 of
the Watan Act.
It reads :
Watandar means a person having a hereditary
interest in the Watan. It includes a person holding watan property acquired by
him before the introduction of British Government into the locality of the
watan, or legally acquired subsequent to such introduction, and a person
holding such property from him by inheritance. It includes a person adopted by
an owner of a watan or part of a watan subject to the conditions specified in
sections 33 to 35".
If the words used in the definition are
strictly and literally construed, it would mean that before a person can be
said to be a watandar, he must have a hereditary interest both in the watan
property and in the hereditary office, because it is these two that constitute
the watan. There is no basis whatever for such a strict construction. The
definition is undoubtedly in two parts : the first sets out what
"watandar" means and the other states what is included in it and the
question arises whether the primary definition i.e. the meaning portion of it
should be regarded as primary and the inclusive part as illustrative or both the
parts should be regarded as constituting one whole definition, the inclusive
part being supplementary to the former. The controversy arising from the rival
constructions 360 placed on the definition of "watandar" in s. 4 of
the Watan Act was set at rest by the Full Bench decision of the Bombay High
Court in Vijayasingrao Bala Saheb Shinde Desai v.
Janardanrao Narayanrao Shinde Desai.(1) Prior
to that decision, two conflicting constructions on the definition had been
placed by two Division Benches of the Bombay High Court. In Kadappa v.
Krishtappa,(2) an alienation of watan land by a watandar to his bhaubandh for
maintenance was challenged and Rangnekar and Divatia, JJ. held that the
alienation was valid beyond the life time of the watandar inasmuch as it was to
a watandar of the same watan, in other words, the alience who was a bhaubandh
to whom a watan land had been transferred for maintenance regarded as a
watandar though he had no interest in the hereditary office and the rights and
privileges attached to it. It would, therefore, appear that in Kndappa's case,
supra; the entire definition of watandar in s. 4 was looked upon as one, the
latter part being supplementary and additional to what is contained in the
first part. In Smt. Tarabai v. Murtacharya.(3) Sir John Beaumont C.J. and
Wadia, J. however, struck a discordant note. It was that a person who merely
acquired a watan property without acquiring the office and without being under
any obligation to perform services attached to the office was not a watandar
within the meaning of the aforesaid definition; in other words, it held that
the first part of the definition was exclusive and exhaustive, the latter part
being merely illustrative and the illustrations given in the latter part should
fall within the ambit of the exclusive definition given in the first part, that
is to say, the primary definition of a "watandar" in s.4 was that he
was a person having a hereditary interest in a watan, i.e. the office and a
property if any, and the subsequent words were merely explanatory of the
primary definition and did not curtail it. In view of this conflict, the
specific question referred to the Full Bench in Vijayasingrao's case, supra,
was "Whether the term `watandar' as defined in s. 4 of the Watan Act
necessarily and always meant a person who had a hereditary interest not only in
the watan property but also in the hereditary office". And, on a
consideration of the scheme and the relevant sections of the Watan Act and the
two earlier decisions, the Full Bench preferred the construction 361 placed on
the term 'watandar' in Kadappa's case, supra, and concluded that a person who
acquired watan property or held hereditary interest in it without acquiring the
hereditary office and without being under an obligation to perform the services
attached to each office was also a "watandar' within the meaning of the
Watan Act.
There can be no doubt that the Watan Act was
designed to preserve the pre-existing rights of the members of joint Hindu
family. The word 'family' is defined in s. 4 of the Watan Act to include 'each
of the branches of the family descended from an original watandar' and the
expression 'head of a family' is defined therein to include 'the chief
representative of each branch of a family'. 'Representative watandar' defined
in s. 4 meant 'a watandar registered by the Collector under section 25 as
having a right to perform the duties of a hereditary office'. Section 5 of the
Watan Act prohibited alienations of watan and watan rights. Clause (a) of
sub-s. (1) of s. 5. thereof, referred to a watander in general and provided
that it would not be competent to such a watandar to mortgage, charge, alienate
or lease, for a period beyond the term of his natural life, any watan, or any
part thereof, or interest therein, to or for the benefit of any person who is
not a watandar of the same watan, without the requisite sanction. The
expression 'watandar of the same watan' occurs in many sections of the Act. As
already indicated the term 'watandar' as defined in s. 4 includes the members
of a joint Hindu family. It must follow as a necessary corollary that the
expression 'watandar of the same watan' would include members of the family
other than the watandar, who were entitled to remain in possession and
enjoyment of the watan property.
It is necessary to emphasize that commutation
of service had not the effect of changing the nature of the tenure. The effect
of the Gordon Settlement came up for consideration in The Collector of South
Satara & Anr. v. Laxman Mahadev Deshpande & Ors.(1) when the Court
referred to the decision in Appaji Bapuji v. Keshav Shamrav.(2) and quoted the
following passage from the judgment of Sargent, C.J., with approval:
"What is termed a Gordon Settlement was
an Arrangement-entered into in 1864 by a Committee, of which Mr. 362 Gordon, as
Collector, was Chairman, acting on behalf of Government-with the watandars in
the Southern Maratha Country, by which the Government relieved certain
watandars in perpetuity from liability to perform the services attached to their
offices in consideration of a 'judi' or quitrent charged upon the watan
lands.......... the reports of Mr. Gordon's Committee on the Satara and Poona
Districts and their correspondence with Government can, we think, leave no
doubt that the settlements made by that committee, unless it was otherwise,
specially provided by any particular settlement, were not intended by either
party to these settlements, to convert the watan lands into the private
property of the vatandars with the necessary incident of alienability, but to
leave them attached to the hereditary offices, which although freed from the
performance of service remained intact." The Court continued:
"But the Commutation settlement does not
confer an indefeasible title to the grantee, for the right affirmed by the
settlement under s. 15(2) of the Watan Act is liable to be determined by lapse,
confiscation or resumption (s. 22 of the Watan Act). The State having created
the watan, is entitled to put an end to the watan i.e. to cancel the watan and to
resume the grant (1): Bachharam Datta Patil v. Vishwanath Pundalik Patil.(1)
Therefore if there be mere commutation of service, the watan office ordinarily
survives without liability to perform service, and on that account the
character of watan property still remains attached to the grant. But the State
Government may abolish the office and release the property from its character
as watan property." The Court then dealt with the scheme of the Act No. 60
of 1950 and observed that in the light of the incidents of the watan and the
property granted for remuneration of the watandar, that the relevant provisions
of the Act had to be considered in regard to the right of the watandar to
regrant of the watan lands. It was observed that on a combined operation of
sub-s. (3) of s. 3 and s. 4 of the Act, the holder of the watan land is
entitled to regrant of the land in occupancy rights as an unalienated land. As
to the effect of the 363 legislation, it was observed that s. 3 in terms
provides for abolition of the watan, extinction of the office and modification
of the right in which the land is held. The abolition, extinction and
modification arise by operation of s. 3 of the Act, and not from the exercise
of the executive power of confiscation or resumption by the State, and it was
then said:
"Undoubtedly the power of resumption of
a watan may be exercised under s. 22 of the Watan Act and such a resumption may
destroy the right of the holder both to the office and the watan land, and in
the absence of any provision in that behalf no right to compensation may arise.
But where the abolition of the watan is not by executive action, but by
legislative decree, its consequences must be sought in the statute which
effectuates that abolition." As to the effect of the resumption of the
watan lands under sub-s. (3) of s. 3 and their regrant under sub-s. (1) of s. 4
of the Act it was observed:
"It must be remembered that the power
which the State Government always possessed by the clearest implication of s.
22 of the Bombay Hereditary Offices Act, 1874, of resumption is statutorily
enforced by s. 3 in respect of the Paragana and Kulkarni Watans. The State
Government having the power to abolish a watan office, and to resume land
granted as remuneration for performance of the duties attached to the office
was not obliged to compensate the watandar for extinction of his rights. But
the Legislature has, as a matter of grace, presumably because of settlement
between the holders and the Government under the Gordon Settlement, provided by
s. 6 that cash compensation be awarded for loss of the right to cash allowance
or remission of land revenue and has by s. 4 conferred upon the holder of the
watan land, for loss of his right, a right to regrant of the land as occupant
and free from the obligation imposed by its original tenure as watan land.....
But the operation of s. 3 all Paraganas and Kulkarni watans falling within the
Act are abolished, the right to hold office is extinguished, and the land
granted as remuneration for performance of service is resumed. The holder of
the land is thereafter liable to pay land revenue, and is 364 entitled, on
payment of the occupancy price at the prescribed rate, to be regranted
occupancy rights as if it is unalienated land. The right so conferred is,
though not a right to cash compensation, a valuable right of occupancy in the
land. By the resumption of watan land and regrant thereof in occupancy right,
all the restrictions placed upon the holder of watan land are by the provisions
of the Watan Act, and the terms of the grant, statutorily abolished. But the
right of occupancy granted by s. 4 adequately compensates the holder for loss
of the precarious interest of a watandar, because the land regranted after
abolition of the watan, is held subject only to the restrictions imposed by
sub-s. (2) of s. 4, and is freed from the incidents of watan tenure, such as
restriction on alienation beyond the life time of the holder, devolution
according to the special rule of succession, and the liability to consideration
or resumption." It must therefore be observed that the commutation of
service under sub-s. (1) s. 15 of the watan lands by which the watandars were
relieved in perpetuity from liability to perform the services attached to their
offices in consideration of 'judi' or quit-rent charged upon the watan land,
unless where it was otherwise provided for, had not the effect of converting
watan land into the private property of the watandars with the necessary
incident of alienability but to leave them attached to the hereditary offices
which, although freed from the performance of services, remained intact.
Despite commutation of service, the office of watandars ordinarily survived
without liability to perform service, and on that account the character of the watan
lands still remained attached to the grant. By the end of the first half of the
19th century, the watandars had lost much of their raison d'etre. The British
thought it expedient to dispense with their services and the watandars were
given an offer to convert their watans into private property by the annual
payment of a Nazrana but they were opposed to this. At their own request, the
Government agreed to continue their watans as unalienable after the service
commutation settlements, subject to payment of 'judi' or quit-rent. After the
service commutation settlements and the appointment of Mamlatdars, the
watandars had practically no function to perform but the watans were not
discontinued till the Government decided upon their abolition.
365 It is said that although co-ownership of
the joint family may exist in impartible property, a distinction must be drawn
between present rights and future rights of the members of a family. This is
because of the peculiar character of the property. Thus, while the junior
members have future or contingent rights such as right of survivorship, they
have, apart from custom or relationship, no present rights, as for instance, a
right to restrain alienation or to claim maintenance. It is upon this basis
that the submission is that the courts below manifestly erred in passing a
decree for partition of the watan property described in Schedules B and C
appended to the plaint. We are afraid, these submissions based upon the alleged
impartibility of the watan properties or the applicability of the rule of
lineal primogeniture regulating succession to the estate cannot prevail, as
these being nothing more than incidents of the watan, stand abrogated by sub-s.
(4) of s. 3 Act No. 60 of 1950 and s. 4 of Act No. 22 of 1955.
It seems plain to us that the effect of Act
No. 60 of 1950 and Act No. 22 of 1955 was to bring out a change in the tenure
or character of holding as watan land but they did not affect the other legal
incidents of the property under personal law. It will be convenient to deal
first with the provisions of Act No. 60 of 1950. Section 3 of the Act lays down
that, with effect from, and on, the appointed day, notwithstanding anything
contained in any law, usage, settlement, grant, sanad or order, all watans
shall be deemed to have been abolished and all rights to hold office and any
liability to render service appertaining to the said watans shall stand
extinguished. It further lays down that subject to the provisions of s. 4,
"all watan land is hereby resumed" and "shall be deemed to be
subject to the payment of land revenue under the provisions of the Code and the
rules made thereunder as if it were an unalienated land".
The term 'Code' as defined in s. 2 (b) means
"the Bombay Land Revenue Code, 1879". All incidents pertaining to the
said watans stand extinguished from the appointed day.
Sub-s. (1) of s. 4 of the Act, insofar as
material, provides:
"4 (1). A watan land resumed under the
provisions of this Act shall....... ..be regranted to the holder of the watan
to which it appertained, on payment of the occupancy price......... and the
holder shall be deemed to be an occupant within the meaning of the Code in
respect of 366 such land and shall primarily be liable to pay land revenue to
the State Government in accordance with the provisions of the Code and the
rules made thereunder;
all the provisions of the Code and rules
relating to unalienated land shall, subject to the provisions of this Act,
apply to the said land." Clause (2) of Explanation to s. 4 reads:
"Explanation-For the purposes of this
section the expression "holder" shall include- (i) all persons who on
the appointed day are the watandars of the same watan to which the land
appertained, and xx xx xx The provisions of Act No. 22 of 1955 are more or less
similar. Likewise, s. 4 of the Act provides that, notwithstanding anything
contained in any usage, settlement grant etc., with effect from the appointed
day, all alienations shall be deemed to have been abolished and all rights
legally subsisting on the said date in respect of such alienations and all
other incidents of such alienation shall be deemed to have been extinguished.
Section 7 of the Act provides that "all land held under a watan is hereby
resumed" and "shall be regranted to the holder in accordance with the
provisions contained in sub sections (1) to (3) therein. Clause (1) of
Explanation to s. 7 reads:
"Explanation-For the purpose of this
section, the expression "holder" shall include- (1) an alienee
holding land under a watan, and (2) xx xx xx xx Upon a plain reading of sub-s.
(1) of s. 4 of Act No.
60 of 1950 and of s. 7 of Act No. 22 of 1955,
it is clear that watan lands resumed under the provisions thereof, have to be
regranted to the holder of the watan, and he shall be deemed to be an occupant
within the meaning of the Code in respect of such land.
367 The expression 'holder' as defined in cl.
(i) Explanation to s. 4 of the former Act includes "all persons who, on
the appointed day, are the watandars of the same watan" and cl.
(1) of Explanation to s. 7 of the latter Act
defines it to include 'an a lienee holding land under a watan". The term
"an alienee" is defined in s. 2 (1) (iii) to mean "the holder of
an alienation and includes his co-sharer".
The Watan Act contemplated two classes of persons.
One is a larger class of persons belonging to the watan families having a
hereditary interest in the watan property as such and the other a smaller class
of persons who were appointed as representative watandars and who were liable
for the performance of duties connected with the office of such watandars. As
already indicated, it would not be correct to limit the word
"watandar" only to this narrow class of persons who could claim to
have a hereditary interest both in the watan property and in the hereditary
office. Watan property had always been treated as property belonging to the
family and all persons belonging to the watan family who had a hereditary
interest in such watan property were entitled to be called "watandars of
the same watan" within the Watan Act. That being so, the members of a
joint Hindu family must be regarded as holders of the watan land along with the
watandar for the time being, and therefore the regrant of the lands to the
watandar under sub-s. (1) of s. 4 of Act No. 60 of 1950 and under s. 3 of Act
No. 22 of 1955 must enure to the benefit of the entire joint Hindu family.
It appears that the same view has been taken
in a Full Bench decision of the Bombay High Court in Laxmibai Sadashiv Date v.
Ganesh Shankar Date(1).
A controversy had arisen as to the purport
and effect of the non-obstante clause contained in s. 4 of the Bombay Inferior
Village Watans Abolition Act, 1959. Malvankar, J.
in Dhondi Vithoba v. Mahadeo Dagdu(2) held
that the effect of sub-s. (3) of s. 4 read with s. 5 of the Act was to bring
about a change in the tenure or character of holding as Watan land, but it did
not affect the other legal incidents of the property under personal law. The
learned Judge therefore held that even though the watan was abolished and the
incidents thereof were extinguished and the land resumed under 368 s. 4, the
Act maintained the continuity of the interest in the lands of persons before
and after the coming into force of the Act provided, of course, the holder pays
occupancy price in respect of the land. In other words, the property continues
to be the joint family property or the property held by the tenants-in-common,
as the case may be. In Kalgonda Babgonda v. Balgonda,(1) a Division Bench of
the High Court took a view to the contrary and observed:
"The words "all incidents
appertaining to the said watans shall be and are hereby extinguished",
must include every kind of incident, including the so-called incident of a
right to partition as claimed by the plaintiff in this case, even if such right
existed.
Further, the lands were resumed by the
Government on that date in law and vested in the Government till the lands were
re-granted under s. 5 or 6, or 9 of that Act." xx xx xx xx "It is not
possible for us to consider it reasonable to held that although the lands were
resumed by the Government and the holder himself had lost all his rights till
the lands were re-granted to him except the right of asking, for re-grant, the
incidents of the property under personal law appertaining to impartible
property would survive the extinguishment of the tenure and resumption of the
land by the State." It was obviously wrong in reaching the conclusion that
it did.
In Laxmibai Sadashiv Date's case, supra, the
Full Bench reversed the decision of the Division Bench and upheld the view
taken by Malvankar, J. in Dhondi Vithoba's case, supra, observed:
"It is undoubtedly true that s. 4 starts
with a non-obstante clause, but it is a well recognised canon of construction
to give effect to non-obstante clause having regard to the object with which it
is enacted in a statute. The non-obstante clause is contained at the inception
of s. 4 and the sole object of s. 4 is to abolish alienation and rights and
incidents in respect thereof. The right of a member of joint Hindu family to
ask for partition of a joint family 369 property cannot be regarded as a right
relating to grant of land as service inam or as an incident in respect thereof.
xx xx xx xx The object of s. 4 was not to
affect in any manner rights created under the personal law relating to the
parties and if the property belonged to joint Hindu family, then the normal
rights of the members of the family to ask for partition were not in any way
affected by reason of the non-obstante clause contained in s. 4." These
observations, in our opinion, are clearly in consonance with the true meaning
and effect of the non- obstanate clause.
It still remains to ascertain the impact of
sub-s (2) of s. 4 of Act No. 60 of 1950 and sub-s. (3) of s. 7 of Act No. 22 of
1955, and the question is whether the occupancy of the land regranted under
sub-s. (1) of s. 4 of the former Act and sub-s. (2) of s. 7 of the latter Act
is still impressed with the character of being impartible property.
All that these provisions lay down is that
the occupancy of the land regranted under sub-s. (1) of s. 4 of the former Act
shall not be transferable or partible by metes and bounds without the previous
sanction of the Collector and except on payment of such amount as the State
Government may, by general or special order, determine. It is quite plain upon
the terms of these provisions that they impose restrictions in the matter of
making alienations. On regrant of the land, the holder is deemed to be an
occupant and therefore the holding changes its intrinsic character and becomes
Ryotwari and is like any other property which is capable of being transferred
or partitioned by metes and bounds subject, of course, to the sanction of the
Collector and on payment of the requisite amount.
It is the policy of the law to prevent the
land-working classes being driven into the state of landless proletariats so
far as may be, and accordingly it is provided by these provisions that
alienations of such holdings or partition thereof shall be ineffective unless
the sanction of the Collector has first been obtained. It is of the utmost
importance that this important safeguard should be maintained in full force and
effect so that the parties must exactly know what they have bargained for. The
condition for the grant of sanction by the Collector as a pre-requisite for a
valid transfer of a holding or the 370 making of a partition by metes and
bounds, is to ensure that the actual tiller of the soil is not deprived of his
land except for valid consideration, or that the partition effected between the
members of a family is not unfair or unequal. These provisions therefore do not
create a statutory bar to a transfer or a partition once the conditions
mentioned therein are fulfilled.
In the result, the appeals must fail and are
dismissed.
There shall however be no order as to costs.
P.B.R. Appeals dismissed.
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