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TMI Blog1982 (3) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... tans 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. 3. 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's 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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. 6. 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, 7. The subjoined genealogical table gives the relationship of the parties belonging to the senior branch descended from Thimappa. GENEALOGIICAL TABLE 8. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erties 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. 10. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility 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. 16. 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 L.R.[1880] 7 I.A 162 the headnote of which is that : Deshgat watan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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). 18. 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. 19. As observed by Sir Dinshaw Mulla in his celebrated judgment in Shiba Prasad Singh v. Rani Prayag Kumari Debi and Ors. L.R. 1931 I.A 331 The keynote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partible 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. 20. 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 Council and of this Court : Collector of Gorakhpur v. Ram Sundar Mai and Ors. I.L.R. (1934) 61 I. A. 286. Commissioner of Income Tax, Punjab, v. Krishna Kishore L.R. (1941) 68 I.A 155 Anant Bhikappa Patil v. Shankar Ramchandra Patil L.R. 1942 70 I.A 232 Chinnathavi Alias Veeralakshmi v. Kutasekara Pandiya Naicker and Anr.: [1952]1SCR241 . Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and Ors. v. Shri Pushavathi Viseswar Gajapathi Raj and Ors.: [1964]2SCR403 Rajah Velugoti Kumara Krishna Yachendra Varu and Ors. v. Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors.: [1970]3SCR88 and Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo and Ors.: [1982]1SCR417 21. In Collector of Gorakhpur v. Raw Sundar Mai's case, supra, it was observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 23. In the course of argument, great reliance was placed on the two decisions of this Court in Mirza Raja GanapathVs 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 Ryot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates 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 Section 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 Apt on the rights and obligations of the members of the family and held 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 Section 1(16) and therefore did not come within the purview of Section 3 of the Abolition Act but continued to be governed by the Madras Impartible Estates Act, 1904. 26. The contention that the plaintiff holding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tia, 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 alienee 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 Section 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. 41 Bom. L.R. 924 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 29. 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 Am. v. Laxman Mahadev Deshpande and Ors.: [1964]2SCR48 when the Court referred to the decision in Appaji Bapuji v. Keshav Shamrav. i.l.r (1890) Bom. 13 and quoted the following passage from the judgment of G Sargent, C.J., with approval: What is termed a Gordon Settlement was an Arrangement-entered into in 1864 by a Committee, of which Mr. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 31. As to the effect of the resumption of the watan lands under Sub-section (3) of Section 3 and their regrant under Sub-section (1) of Section 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 Section 22 of the Bombay Hereditary Offices Act, 1874, of resumption is statutorily enforced by Section 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 Section 6 that cash compensation be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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. 33. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression 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 36. The provisions of Act No. 22 of 1955 are more or less similar. Likewise, Section 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 Section 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 37. Upon a plain reading of Sub-section (1) of Section 4 of Act No. 60 of 1950 and of Section 7 of Act No. 22 of 1955, it is clear that watan lands re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, Section 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 (1975) 78 Bom. L.R. 720 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 Section 5 or 6, or 9 of that Act. xx xx xx xx It is not possible for us to consider it r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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. 44. 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 making of a partition by metes and bou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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