KADAPPA BAPURAO DESAI Vs. KRISHTAPPA BACHAPPA DESAI

JUDGEMENT

(1.) This appeal is preferred by the plaintiff in a suit to recover possession of certain property with mesne profits from the defendants. The plaintiff's case was that the defendants were his distant bhaubands, that the family owned two watans, viz., patilki and deshgat watans, that according to the ancient custom of the family of the parties these watans were impartible, that the watan property descended according to the rule of lineal primogeniture, that only the deshgat lands were given for maintenance to the bhaubands but no part of patilki watan was to be given to them for such maintenance, that in spite of that custom, one Rayappa, who, along with the plaintiff, belonged to the eldest branch of the family, gave certain property in 1878 to one Tatya and others of the third branch of the family to which the defendants belong,, that the property included some lands of the patilki watan for their maintenance, that this grant would be valid only during the lifetime of Rayappa but that it was not binding against the plaintiff who succeeded to this watan after the death of Rayappa in 1914 and the death of his brother Mallappa in 1917, under Section 5 of the Bombay Hereditary Offices Act, that there was also another alienation of patilki land made in 1886 by the said Rayappa to the members of the defendants branch which grant was not in the nature of a gift but of the nature of a sale for consideration to the members of the defendants branch and that also offended against the provisions of Section 5 of the said Act, and that therefore the plaintiffs have a right to recover possession of these patilki lands from the defendants.

(2.) The defendants answer to the suit was that according to the long prevailing; custom in the family, the patilki watan, although impartible and governed by the rule of lineal primogeniture, was not governed by the custom alleged by the plaintiff, but that, on the other hand, from a very long time members of the defendants branch were given certain patilki watan lands for their maintenance. It was further contended that the defendants were watandars of the patilki watan in suit, and that, therefore, whether the grants to the defendants family were by way of maintenance or were alienation or both, they were not void under Section 5 of the Act, after Rayappa's death, and that the plaintiff had therefore no right to recover possession of the suit property.

(3.) The main issues in the case, therefore, were, first, as to whether the alienations of the suit property by Rayappa to the members of the defendants branch were valid and binding on the plaintiff after Rayappa's death, and, secondly, whether the defendants were entitled to maintenance out of the patilki watan lands, With regard to the custom alleged by the plaintiff that the bhaubands were entitled to maintenance only out of deshgat lands and not patilki lands, the lower Court found against the plaintiff that no such custom had been proved by him. It was admitted by the plaintiff in his deposition that deshgat as well as patilki watans were originally acquired by the ancestor of all the three branches, and although those watans were impartible, the bhaubands had a right of maintenance, and he admitted further that there was no writing to the effect that maintenance should not be given to them from the patilki watan lands. It will thus be seen that the defendants right to maintenance is not denied, and as it is admitted that the defendants had a right to maintenance out of the deshgat watan lands, it is for the plaintiff to prove by definite and reliable evidence that the patilki watans stood on a different footing altogether and were not also liable for the defendants maintenance. Apart from the word of the plaintiff, there is no evidence of any ancient, definite and valid custom from which it can be held that the defendants were not entitled to get patilki lands for their maintenance. The lower Court, therefore, had no difficulty in repelling the plaintiff's contention and in holding that this unusual custom had not been proved. It is further in evidence that the plaintiff's other bhaubands, that is to say, the members of the second branch, were still in possession of three patilki lands given to them for maintenance. We see no reason, therefore, to differ from this finding, and we hold that the plaintiff has not succeeded in proving the special custom pleaded by him.