VIJAYSINGRAO BALASAHEB SHINDE DESAI Vs. JANARDANRAO NARAYANRAO SHINDE DESAI

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiff for partition and for possession of his half share in the properties in suit. The plaintiff's ease was that these properties were joint family properties, and the joint family consisted of his father Narayanrao, his elder brother Balasaheb and himself. Narayanrao died in 1927, Balasaheb died on January 5, 1934, and according to the plaintiff he became the karta of the family on the death of Balasaheb. Balasaheb left two sons, defendants Nos. 1 and 2. According to the plaintiff, there were disputes between him and defendants Nos. 1 and 2 and hence he filed a suit for partition. He also in this suit challenged various alienations made by his father Narayanrao and brought the alienees on the record of the suit. The defence of defendant No.1 was that the properties in suit were watan properties, they were impartible and governed by the rule of primogeniture, and therefore on the death of Narayanrao, Balasaheb would inherit those properties, and on the death of Balasaheb, he as the elder son would be entitled to them. He also contended that the junior branch of the family were entitled only to maintenance and that the plaintiff was only entitled to maintenance and that such maintenance had been given to him. The learned trial Judge gave a declaration in favour of the plaintiff that he was entitled to half share in the properties in suit. With regard to the alienations lie held that they were binding on the parties to the suit.

(2.) IN this appeal two main questions have been argued. The first is with regard to the question whether the properties in suit constitute an impartible estate or whether they are subject to the same ordinary Hindu law of succession. It is now well settled law that to every estate, whatever its character, the ordinary Hindu law of succession applies, and it is for the party who alleges that a different law of succession applies to prove as a matter of custom. The plaintiff's case with regard to these properties was that they were given by the Adilshahi dynasty to Parsoji Basaji as watan lands in lieu of services to be rendered by him, that these lands were impartible, and that they descended by primogeniture. After Parsoji there were two branches of the family which have been referred to in this litigation as the Eksambekar branch (which we shall call the E branch), and the Ghosarwedkar branch (which we shall refer to as the G branch ). It was the case of defendant No.1 that for some time the lands were wrongfully seized by the G branch, but ultimately in 1707 the lands were regranted to Sambhaji belonging to the E branch, which according to him was the senior branch. Subsequently, part of these lands again went to the G branch, and when the British Government arrived on the scene in 1836 they recognized the G branch as the representative Watandars. Then one Janabai, the mother of Narayanrao, filed a suit in Belgaum Court, being suit No.135 of 1879, against Gangabai, the representative of the G branch, for possession of the suit lands. This litigation ultimately ended in appeal to the High Court on March 24, 1887, and by a consent decree Janabai was given 25 lands and Gangabai was ordered to pay the whole of the judi. These are the lands which are now in suit.

(3.) NOW, the trial Court relied on a judgment of a Divisional Bench of this Court in Tarabai v. Murtacharya (1939) 41 Bom. L. R. 924. The bench consisting of Sir John Beaumont, Chief Justice, and Mr. Justice N. J. Wadia, were considering the question of the special law of inheritance to watan property enacting the Watan Amending Act of 1886. That Amending Act lays down certain rules as to succession to property in watan families and it prefers male members to female members, postponing the latter till the male members are exhausted, and this bench took the view that this special law of inheritance did not apply to a person who merely acquired watan property without acquiring the office and without being under any obligation to perform the services attached to the office, as he was not a watandar within the meaning of the Watan Act, and in coming to that conclusion Sir John Beaumont considered the definition of watandar in the Act and came to the conclusion that the primary definition of a watandar was that he was a person having a hereditary interest in a watan, that is, the office and the property if any, and that the subsequent words were merely explanatory of the primary definition and did not curtail it. With very great respect to this bench, in coming to this conclusion they overlooked several important considerations. In the first place they overlooked the fact that what they had to decide with regard to Section 2 of Act V of 1886 was, what was a watan family, and watan family was defined under Section 4 of the Watan Act and that definition was that family includes each of the branches of the family descended from an original Watandar. Therefore, the watan family was confined to the branches of the original acquirer of the watan land. If there was an alienation, the alienee and his family could never become watan family within the meaning of the Act, and Section 2 of Act V of 1886 only applied to the watan family. That is, the special law of succession laid down only applied to the original acquirer and his family, and, undoubtedly, in the case of the original acquirer he would have not only the watan property but also the right of office. They also overlooked the fact that before the advent of the British Government alienations by Watandars were not prohibited and watan properties had passed to various alienees and such alienations undoubtedly would be without the right to office going with it. Therefore, if that was the true definition of Watandar, then all persons who had acquired watan lands in the pre-British Government days could never fall into the class of Watandars. They also overlooked the fact that the Act defines a representative Watandar as a watandar registered by the Collector under Section 25 as having a right to perform the duties of hereditary office, and therefore the Act itself clearly makes a distinction between a Watandar who may merely possess watan property and a Watandar who not only possesses watan property but also has the right to perform the duties of the office. Therefore, to say, with great respect, that every Watandar within the meaning of the Act must have a right to perform the duties of the office seems to be contrary to both the intention of the statute and the plain language used by it in distinguishing the two cases of a Watandar and a representative Watandar. Section 5 itself deals separately with the two cases of a Watandar alienating any watan or part thereof or interest therein and the case of a representative Watandar alienating any right with which he is invested as such under the Act. This, again, contemplates a Watandar having only watan lands without the rights of office alienating1 those lands or part of those lands. Again, with respect, to the bench, the case in Kadappa v. Krishtappa (1935) 37 Bom. L. R. 599 was not cited before them, otherwise in coming to the decision they did they ought to have held that that case was wrongly decided. That was a case where there was an alienation of watan property by a Watandar to his bhaubandh for maintenance and Mr. Justice Rangnekar and Mr. Justice Divatia held that that alienation was valid beyond the lifetime of the Watandar because the alienation was to a Watandar of the same watan. NOW, obviously, when watan land is given to a bhaubandh for maintenance, it does not carry with it any right to an office of a Watandar, and if the right to office is a pre-requisite of a person being a Watandar then obviously a bhaubandh who received property for maintenance can never be a Watandar. If that be so, then the alienation in this case was to a person who was not a Watandar and the decision of Mr. Justice Rangnekar and Mr. Justice Divatia was wrong, if the decision in Tarabai v. Murtacharya was right. Tarabai v. Murtacharya came to be considered by another Divisional Bench of this Court consisting of Mr. justice Broomfield and Mr. Justice Macklin in Venkatrao Shrinivasrao v. Basavprabhu Lakhamgouda (1942) 45 Bom. L. R. 754 and this Bench accepted the same definition of Watandar as given in Tarabai's case. An application was made to them to refer the case to a Full Bench and they declined to do so. The case of Mallappa v. Tukko (1936) 39 Bom. L. R. 288 was cited before them for the purpose of showing that there was a conflict of decisions with regard to the definition of Watandar in this Court, and Mr. Justice Macklin took the view that in Mallappa's case the point was not specifically raised and therefore no question of conflict arose. It is true that in Mallappa v. Tukko on the facts it is clear that there was a grant by the inamdar of a pot-inam to the ancestor of the plaintiffs in that case and the plaintiffs filed the suit for a declaration that they were the Watandars, and Mr. Justice Broomfield himself, who was a party to the decision in Venkatrao Shrinivasrao v. Basavaprabu, Lakhamgouda, at page 293, discussing the findings of the lower Court, states that on the merits the Judge finds that there was a grant of lands to the plaintiffs' ancestor in 1811 and that they are therefore Watandars of the same watan within the definition in Section 4 of the Watan Act, and then turning to the issues. that arose, at p. 294 he sets out the third issue as follows : Whether the plaintiffs are watandars of the same Watan, which means, as admittedly they are; not members of the watan family, whether there was a grant to them before the introduction of the British rule in 1827 or 1828 : see the definition of 'watandar' in Section 4 of the Watan Act. Therefore, the right of the plaintiffs to be declared as Watandars depended upon their acquiring watan land before the introduction of British rule and that was independently of their having received the right of office. On the contrary, it is clearly assumed that the plaintiffs had no right to the office of Watandars as they did not belong to the watan family. But Mr. Justice Macklin is right when he says in Venkatrao Shrinivasrao v. Basavprabhu Lakhamgouda that this particular question was not argued at the Bar or considered by the Court when they decided Mallappa's ease. But; we find that the ease of Kadappav. Krishtappa was not cited before that Bench. If it had been, we feel certain that it would have been very difficult for that Bench to resist an application for the point being referred to a Full Bench. This matter again came before my brothers Sen and Bavedekar JJ. in First Appeal No.108 of 1943, and Mr. Justice Sen delivering an interlocutory judgment realised the difficulty created by the decision in Tarabai's case and he also realised the necessity for a clarification of the matter by a Full Bench. But the matter was not referred to a full bench because the findings of fact by the lower Court were not clear, and therefore Mr. Justice Sen and Mr. Justice Bavdekar sent back the case for a finding on certain issues. When the case came back, this Court (Bavdekar and Dixit JJ.) held that the acquirer of the watan land had also a hereditary interest in the office and therefore the case fell under the first part of the definition of Watandar and it was not necessary to consider what was the true meaning of the second part of the definition of Watandar, and therefore no necessity arose for a reference of this question to a Full Bench.