TIKAIT HARGOBIND PRASAD SINGH Vs. PHALDANI KUMARI
LAWS(SC)-1951-11-4
SUPREME COURT OF INDIA
Decided on November 29,1951

TIKAIT HARGOBIND PRASAD SINGH Appellant
VERSUS
PHALDANI KUMARI Respondents


Cited Judgements :-

BADRI NARAIN SINGH VS. KAMDEO PRASAD SINGH [LAWS(PAT)-1959-3-2] [REFERRED TO]
RADHASHYAM NAIK AND ORS. VS. SRIPATI NAIK AND ORS. [LAWS(PAT)-1987-8-25] [REFERRED TO]


JUDGEMENT

Fazl Ali - (1.)WHILE agreeing generally with my learned brother Mahajan J., I wish to say a few words to indicate the main ground on which I would dismiss this appeal.
(2.)THERE are a number of authoritative decisions dealing with the special features of ghatwali property, one of which is said to be that if the ghatwal is a member of a joint family, the family has no right over the property while it is in his hands. . The logical corollary from this characteristic of ghatwali property would seem to be that it is more in the nature of exclusive property of the ghatwal than of joint family property. Nevertheless, in some cases, succession to such property has been determined with reference to the rules of Hindu law regarding joint property, where the ghatwal was found to be a member of the joint family. As at present advised I am not prepared to say that those cases were wrongly decided, but I think it will not be incorrect to say that custom and usage are also important factors governing succession to ghatwali property, and it is conceivable that while in some cases custom may develop on the lines of Hindu law relating to succession owing to repeated instances of tacit and unquestioned application of the law, in other i.e cases succession to ghatwali property may be governed not entirely by Hindu law but by such law as modified in certain respects by usage and custom.
The question with which we are concerned in this case is whether the widow of a deceased ghatwal, who was a member of a joint family and died leaving no issue or direct male descendants, can succeed to the ghatwali property in preference to the nearest male agnate.

On a reference to the plaint, it would appear that what the plaintiff contended was that the clan to which the parties belong was governed by the Mitakshara school of Hindu law 'subject to their clan custom', one of which was said to be that females, viz., widow, daughter or mother, and persons claiming through females could not and did not succeed on the death of the ghatwal. This allegation was controverted in the written statement, and it was claimed that the family was governed by the Mitakshara system of law and 'there was no clan custom governing the estate in suit.' Upon these pleadings, one of the issues framed by the trial court was 'whether succession to the ghatwali is governed by custom, as alleged in paragraph 7 of the plaint.' In the course of the trial, the plaintiff tried to prove that females were always excluded as alleged by him. In this, he did not succeed. The courts below however found that the question which directly affected the present case was a much narrower one, namely, whether females could succeed even when the family was joint. So far as this question is concerned, both the courts below are agreed that females cannot be excluded if the property is the separate property of the ghatwal. But the question which still remains to be decided is what the true legal position would be if the property is deemed to be joint property. It appears that evidence was adduced at the trial to show that in 13 instances affecting the Baisi-Chaurasi clan to whom the Birbhum ghatwals admittedly belong, the widow of the last ghatwal succeeded in preference to a male agnate. In the course of the trial, the plaintiff tried to prove that females were always excluded as alleged by him. In this, he did not succeed. The courts below however found that the question which directly affected the present case was a much narrower one, namely, whether females could succeed even when the family was joint. So far as this question is concerned, both the courts below are agreed that females cannot be excluded if the property is the separate property of the ghatwal. But the question which still remains to be decided is what the true legal position would be if the property is deemed to be joint property. It appears that evidence was adduced at the trial to show that in 13 instances affecting the Baisi-Chaurasi clan to whom the Birbhum ghatwals admittedly belong, the widow of the last ghatwal succeeded in preference to a male agnate. The trial judge however found that in four of these instances the nearest agnate who claimed the property was separate from the ghatwal or his widow, but, in the other instances, there was no evidence of separation, or 'the evidence was weak', which, I take it, is another way of saying that it could not be safely relied on. 40 It seems to me that these instances lend some support to the view that Hindu law has been modified' by custom, so far as the Birbhum ghatwalis are concerned, and that among the ghatwalis belonging to this class, where the last ghatwal dies leaving a widow but no issue, then she succeeds in preference to the nearest male agnate, even though the family may be joint. The Birbhum ghatwalis form a class by themselves, and they are also subject to a special Regulation-Regulation XXIX of 1814. That Regulation states among other things that this class of ghatwalis shall be entitled to hold the ghatwali property generation after generation and that they and their descendants in perpetuity shall be maintained in possession of such property. Strictly speaking, neither a widow nor a distant agnate will come within the terms of the Regulation, not being a descendant of the last ghatwal, and therefore custom and usage cannot be ruled out in determining succession in such cases. The strongest case which was relied upon by the appellant is Fulbati Kumari v. Maheshwari Prasad(1) where it was laid down that on the death of a ghatwal, who was a member of a joint family, the ghatwali property would devolve according to the rules of Hindu law affecting joint property, that is to say, by the rule of survivorship. But, in this case, Dawson Miller C.J. who delivered the judgment, took care to observe that the ghatwali estate which was the subject of litigation was not comparable to the Birbhum ghatwali 'tenures, which means that the rule laid down in that case may not apply to Birbhum ghatwals.

In the present case, the Commissioner, who represented the government and who had special means of knowing the usages affecting the Birbhurn ghatwals. appointed the respondent as the ghatwal, stating that he was 'following a well-established precedent in the case of these ghatwals by recognizing the widow in the absence of a direct heir.' In my opinion, whatever evidence there is in this case supports the Commissioner's view, and there is hardly any cogent evidence to rebut it. In the circumstances, I agree that this appeal ought to be dismissed with costs. Mhahjan

The question involved in the appeal relates to the right of succession to six Birbhum ghatwalis governed by Regulation XXIX of 1814, annexed to Gaddi Pathrol and lying within Tappasarath in the Santhal Parganas. the genealogy of the contestants appears from the following pedigree table: .... JUDGEMENT_38_AIR(SC)_1952Image1.jpg

(3.)TIKAIT Kali Prasad Singh, the last gaddidar of Pathrol, died in the year 1935. He belonged to the Baisi-Chaurasi clan. On the 29/11/1935, the Commissioner of Bhagalpur Division recognized Smt. Phaldani Kumari as the next ghatwal and entitled to be maintained in possession of the ghatwali estate on the 30/11/1936, sarju Prasad Singh brought the suit out of which this appeal arises in forma pauperis in the court of the Subordinate Judge of Deoghar for possession of the ghatwalis. In paragraphs 7, 8 and 10 of the plaint it was alleged that the ghatwalis in suit were joint family property and were impartible by custom; that succession to them was governed by the law of lineal primogeniture; that the females and persons claiming through them were altogether excluded from inheritance. It was claimed that the late TIKAIT Kali Prasad Singh and the plaintiff were members of a joint Mitakshara family and that he alone as the eldest member of the eldest surviving line of the descendants of the common ancestor was entitled to succeed to them.
The defendant in her written statement denied this claim and contended that Birbhum ghatwalis governed by Regulation XXIX of 1814 are not and cannot be in the nature of joint family property but that the person who succeeds and holds the tenure as ghatwal is the sole proprietor and owner thereof. It was pleaded that the properties being the exclusive and separate properties of the ghatwal for the time being, the defendant, his widow, was entitled to succeed to them in preference to the plaintiff under the Mitakshara school of Hindu law which admittedly governed the family of the parties. The pleadings of the parties gave rise to the following issues :-- 1. Whether succession to the ghatwalis in question is governed by the customs alleged in para 7 of the plaint ? 2. Did the ghatwalis in question form joint family property of Kali Prasad Singh, his ancestors in the direct line and of Sarju Prasad Singh and the plaintiff? 3. Did Kali Prasad die in a state of jointness with Sarju Prasad Singh ? 4. Are the ghatwals the sole proprietors of the ghatwalis for the time being as alleged by the defendant ? 5. Whether the plaintiff or the defendant is entitled to succeed to the properties in suit ? 41

Issues 2, 3 and 4 were found by the trial Judge in favour of the plaintiff and against the defendant. It was held that Kali Prasad Singh died in a state of jointness with Sarju Prasad Singh and that the ghatwalis in question were their joint family property and that the plaintiff the eldest surviving copartner in the eldest line of Digbijoy Singh's descendants was entitled to succeed to them in preference to the widow. It was common ground between the parties that in case the properties were held to be the separate properties of Kali Prasad Singh, the widow was entitled to succeed to them. As a result of these findings the plaintiff's suit was decreed with costs. On appeal by the widow to the High court, this. decree was reversed and the plaintiff's suit was dismissed with costs. It was held that the character of the ghatwali tenures in question was such that they could not be regarded as joint property of the plaintiff and the last ghatwal and that being so, the defendant was entitled to succeed to them.

;


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.