Decided on March 02,1982



SEN - (1.) THESE nine consolidated appeals on certificate are directed from a common judgment and decree of the High Court of Mysore at Bangalore dated 22/06/1962, which affirmed, subject to a modification, the judgment and decree of the Civil Judge, Senior Division, Dharwar, dated 5/07/1956, substantially dismissing the plaintiffs 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.
(2.) 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 appears arise, was instituted by the appellant Nagesh Bisto Desai, as plaintiff, claiming against his two brother; Ganesh Bisto Desai and Gopal Bisto Desai, defendants Nos, 2 and 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 had no right, title or interest therein but were only entitled to maintenance 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 moveables described in Schedule D. Alternatively, in the event of the Court holding that the properties described in Schedules 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.
(3.) 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 has now merged in the then Province of Bombay. THE lands and cash allowances described in Schedule B paras (i) and (ii) 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 toddy and liqour 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. 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 1820 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 Gundopanth 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 27/07/1931 leaving behind him his widow Smt. Akkavva and four sons, Nagesh, Bhimrao, Ganesh and Gopal. Out of them, Bhimaji 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 plaintiffs' cousin is Khandoppa.;

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