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PETITIONER: NAGESH BISTO DESAI ETC. ETC.

       Vs.

RESPONDENT: KHANDO TIRMAL DESAI ETC. ETC.

DATE OF JUDGMENT02/03/1982

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J)

CITATION:  1982 AIR  887            1982 SCR  (3) 341  1982 SCC  (2)  79        1982 SCALE  (1)418  CITATOR INFO :  F          1984 SC1121  (12,18)

ACT:      Bombay Pargana  and Kulkarni Watans Abolition Act 1950- Section 4(1)  and Bombay  Merged  Territories  Miscellaneous Alienations  Abolition  Act  1955-Section  7-Scope  of-Watan properties if impartible-Members of joint family-If entitled to a share in the watan properties.

HEADNOTE:      The plaintiff’s  rather was  the  last  holder  of  the office of  Desai. After his death the plaintiff, who was his eldest son,  was recognised as the watandar. In 1904 service appurtenant to  the office  of Desai  was  commuted  by  the imposition of  ’judi’ or  quit-rent. Under  s. 4  (1) of the Bombay Pargana and Kulkarni Watans (Abolition) Act, 1950 and s.  7   of  the   Bombay  Merged  Territories  Miscellaneous Alienations Abolition Act, 1955 all the watan lands were re- granted to  the plaintiff  and  he  was  deemed  to  be  the occupant thereof  within the  meaning  of  the  Bombay  Land Revenue Code.      The  plaintiff   (appellant)  filed   a  suit   against respondents who were members of a joint Hindu family holding properties described  as Kundgol  Deshgat Estate  claiming a declaration that  the estate  formed  an  impartible  estate governed by  the rule of lineal primogeniture. The plaintiff claimed that as the present holder of the office of Desai he was entitled  to remain in full and exclusive possession and enjoyment of  the suit  properties and that other members of the family  had no right, title or interest therein but were only entitled  to  maintenance  and  residence  and  in  the alternative  for  partition  and  separation  of  1/6  share therein.      Denying all  the  plaintiff’s  claims  the  respondents pleaded that  the entire  properties belonged  to the  joint Hindu family and were therefore liable to be partitioned.      Rejecting all  the claims  of the  appellant the  Trial Court held  that the  properties belonged to the joint Hindu family and were therefore partible.      On appeal  the High  Court, subject  to a modification, upheld the decree of the court of first instance.

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    The question  at issue  in the appeal to this Court was whether, (1)  even assuming  that the  estate was impartible and governed  by the  rule of lineal primogeniture by custom as pleaded,  the incidents  of impartibility  as well as the rule of 342 lineal primogeniture  being nothing more than an incident of the watan, stood abrogated by s. 3(4) of the 1950 Act and s. 4 of  the 1955  Act and  as such  it was  not  open  to  the plaintiff to  make any  claim on  the basis  of the  alleged custom, (2)  with the  resumption of  the watan  and the re- grant of  the watan  lands to  him, the suit properties lost their character  as being  joint  family  property  and  had become, under  the provisions of the 1950 and 1955 Acts, the plaintiff’s exclusive  property by  reason of  his status as watandar and as such were not capable of being partitioned.      Dismissing the appeal, ^      HELD:  It   is  well   settled  that   property  though impartible may  be the ancestral property of the Joint Hindu Family. The  impartibility of  the estate  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  its devolution  is governed by  the rule  of survivorship.  To establish that a family governed  by the  Mitakshara in  which  there  is  an ancestral impartible  estate has  ceased to  be joint, it is necessary to  prove an intention, express or implied, on the part of  the junior  members of the family to renounce their succession to the estate. [354 C-D]      Martand Rao v. Malhar Rao, [1928] 55 IA 45: AIR 1928 PC 10: 107  IC 7:  Adrishappa v. Gurushidappa, (1880) 7 IA 162: ILR (1880) 4 Bom. 494: 7 Cal. LR 1 (PC); Vinayak Waman Joshi Rayarikar v.  Gopal Hari  Joshi Rayarikar,  [1903] 30 IA 77: ILR (1903) 27 Bom. 353: 7 Cal. WN 409; Shiba Prasad Singh v. Rani Prayag  Kumari Debi, (1932) 59 IA 331: AIR 1932 PC 216: 138 IC 861; Collector of Gorakhpur v. Ram Sunder Mal, (1934) 61 IA  286: AIR  1934 PC  157: CIT  v. Dewan  Bahadur  Dewan Krishna Kishore,  (1941) 68  IA 155:  AIR 1941 PC 120; Anant Bhikappa Patil  v. Shankar  Ramchandra Patil,  (1943) 70  IA 232: AIR  1943 PC  196 and Chinnathayi v. Kulasekara Pandiya Naicker, [1952] SCR 241;AIR 1952 SC 29, relied on.      Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur  v. Shri  Pushavathi Visweswar Gajapathi Raj, [1964] 2  SCR 403: AIR 1964 SC 118 and Rajah Velugoti Kumara Krishna Yachendra  Varu v.  Rajah Velugoti  Sarvagna  Kumara Krishna Yachendra  Varu, (1969)  3 SCC 281: [1970] 3 SCR 88: AIR 1970 SC 1795, distinguished.      Neelkisto Deb Burmono v. Beerchunder Thakoor, (1867-69) 12 MIA 523; Rani Sartaj Kuari v. Rani Deoraj Kuari (1888) 15 IA 51:  ILR (1888) 10 All 272 (PC); Rama Krishna Rao Bahadur v. Court  of Wards,  (1899) 26 IA 83: ILR (1899) 22 Mad. 383 (PC); Raja  Ram Rao  v. Raja  of Pittapur, (1918) 45 IA 148: AIR 1918  PC 81;  Baijnath Prasad  Singh v.  Tej Bali Singh, (1921) 48  IA 195:  AIR 1921 PC 62 and Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo (1981) 4 SCC 613, referred to.      2. The  plaintiff’s  contention  runs  counter  to  the scheme of  the Bombay  Hereditary offices  Act, 1874, and is against settled legal principles. The plain 343 tiff’s rights  to such watan properties, whatever they were, were subject  to the  rights of  the other  members  of  the family. [359 C-D]

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    In the  former Bombay  Presidency, a  Desghat watan had always been  treated to be the joint family property and the grant of watan to the eldest member of a family did not make the watan  property the exclusive property of the person who was the watandar for the time being.      3. The  definition of  the term "watandar" as contained in s.  4 of  the Bombay  Hereditary offices  Act is  in  two parts: the  first sets  out what  "watandar" means  and  the other states  what is  included in  it, that  is, the entire definition of  watandar must  be looked  upon  as  one,  the latter part  being supplementary  and additional  to what is contained in  first part.  Thus, a person who acquired watan property or held hereditary interest in it without acquiring the hereditary  office and without being under an obligation to perform  the services  attached to such office was also a "watandar" within the meaning of the Watan Act. There can be no doubt that the Watan Act was designed to preserve to pre- existing rights  of the members of a joint Hindu family. 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. [359 G-H 361 F]      Vijyasingrao  Balasaheb  Shinde  Desai  v.  Janardanrao Narayanrao Shinde  Desai, 51 Bom. LR 556: AIR 1949 Bom. 314; Kadappo Bapurao  Desai v. Krishtappa Bachappa Desai, 37 Bom. LR 599:  AIR 1935  Bom. 380  and Laxmibai  Sadashiv Date  v. Ganesh Shankar  Date, (1977)  79 Bom.  LR 234: AIR 1977 Bom. 350, approved.      Tarabai   Sriniwas    Naik   Guttal    v.   Murtacharya Anantacharya, 41 Bom. LR 924: AIR 1939 Bom. 414, overruled.      4. The  commutation of  service under  s. 15(3)  of the Watan Act by which the watandars were relieved in perpetuity from liability  to perform  the services  attached to  their offices in consideration of ’judi’ or quit-rent charged upon the watan  land unless  where it was otherwise provided for, had not the effect of converting watan land into the private property of the watandars with the necessary incident of the alienability, but  to leave  them attached to the hereditary offices,  which   although  free  from  the  performance  of services, remain  in tact.  Despite commutation  of service, the  office   of  watandars   ordinarily  survived   without liability to  perform  service,  and  on  that  account  the character of  the watan lands still remained attached to the grant. [364 D-F]      Collector of  South Satara v. Laxman Mahadev Deshpande, [1964] 2 SCR 48: AIR 1964 SC 326, relied on.      Appaji Bapuji v. Keshav Shamrav, ILR (1891) 15 Bom. 13, referred to.      Bachharam Datta  Patil v.  Vishwanath  Pundalik  Patil, [1956] SCR 675: AIR 1957 SC 34: 1956 SCJ 721, referred to. 344      5.  The   impartibility  of  the  watan  lands  of  the applicability or  the rule of lineal primogeniture regarding succession to  the estate, by the alleged custom as pleaded, being nothing  more than  an incident  of the  watan,  stood extinguished by  s.3(4) of  the 1950 Act and s.4 of the 1955 Act. The  effect of  these Acts was to bring out a change in the tenure  or character  of holding as watan lands but they did not  affect the  other legal  incidents of  the property under the  personal law.  That being  so, the  members of  a joint Hindu  family must be regarded as holders of the watan land  along  with  the  watandar  for  the  time  being  and therefore regrant of the lands to the watandar under s. 4(1) of the 1950 Act and under s. 3 of the 1955 Act must enure to the benefit of the entire joint Hindu family. [365 C, E; 367

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E]      6. Section 4(2) of the 1950 Act and s. 7(3) of the 1955 Act do  not create  a statutory  bar  to  a  transfer  or  a partition  once   the  conditions   mentioned  therein   are fulfilled. [370 B]      Laxmibai Sadashiv  Date v.  Ganesh Shankar Date, (1977) 79 Bom. LR 234: AIR 1977 Bom. 350 and Dhondi Vithoba Koli v. Mahadeo Dagdu  Koli, (1973)  75 Bom.  LR 290:  AIR 1973 Bom. 323, approved.      Kalgonda Babgonda  Patil v.  Balgonda  Kalgonda  Patil, (1975) 78 Bom. LR 720, overruled.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 615- 617/73,618-20/73 and 1850 to 1852 of 1972.      From the  Judgment and Decree dated the 22nd June, 1962 of the  Mysore High Court at Bangalore in Regular Appeal No. 157/56 Regular Appeal (B) No. 16/57 & RA (B) 6 of 1958.      U.R. Lalit,  S.S. Javali D.P. Singh & Ravi Parkash, for the Appellants  in CA. 1850-52/72, R-5 in CA. 615/73, R-2 in CA. 616/73, R-6 in CA. 617/73 and R-3 in CA. Nos. 618-20/73.      B.D. Bal, R.B. Datar & Miss Madhu Moolchandani, for the Appellant in  C.A. Nos.  615-617/73, R-5  in CA.  Nos. 1850- 52/72 & for R-1 in CA. Nos. 618-620/73.      S.T. Desai,  K. N. Bhat & Nanjappa Ganesh for Appellant in CA.  618-620/73, RR  2 and  3 in CA. 1850 to 1851/72, RR. 2,3,17 & 18 in CA. 1852/72, RR 2,3 in CA. 616/73, RR 10 & 11 in CA. 616/73 & for RR 1, 2, 4,5 in CA. 617/73.      S.B. Bhasame, K.A. Naik, & M.R.K. Pillai for R-1 in CA. Nos. 1850-52/72, CA 615-16/73, R-14 in CA. 617/73 and R-2 in CA. 618-620/73.      K.R. Nagaraja  & Alok  Bhatacharya for R-12 in CA. Nos. 1850-52/72, CA.  615/73, R-9  in CA.  617/73,  R-13  in  CA. 617/73 and R-10 in CA, 618-620 of 1973. 345      P.R. Ramasesh, for RR 13, 15 (a) to (c) in CA. 1852/72, RR 15  & 17  in CA.  617/73 and RR 11, 14 (a) (c) and (d) in CA. 618/73.      The Judgment of the Court was delivered by      SEN, J.  These nine consolidated appeals on certificate are directed  from a  common judgment and decree of the High Court of  Mysore at  Bangalore dated  June  22,  1962  which affirmed, subject to a modification, the judgment and decree of the  Civil Judge, Senior Division, Dharwar, dated July 5, 1956, substantially  dismissing the  plaintiff’s  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.      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  appeals  arise,  was instituted  by   the  appellant   Nagesh  Bisto   Desai,  as plaintiff, claiming  against his  two brothers  Ganesh Bisto

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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’  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 maintenace 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  movables described 346 in Schedule  D. Alternatively,  in the  event of  the  Court holding that  the properties  described in Schedule 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.      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 later merged  in the  then Province  of Bombay and is now in the State  of  Karnataka.  The  lands  and  cash  allowances described  in   Schedule  B  para  (i)  and  (iii)  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 today and liquor  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, which was partly located within the territory of  former feudatory State of Jhamkhandi and party in the territories of the then British India. 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  1120 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 Gundopant  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 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

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death the  plaintiff Nagesh Bisto Desai was recognised to be the watandar. The plaintiff’s cousin is Khandappa      The subjoined genealogical table gives the relationship of the parties belonging to the senior branch descended from Thimappa. 347                      GENEALOGICAL TABLE                                  Thimppa                                     |                          -------------------------------                          |              |             |                      Khanderao         Pantoji     Gundopant                          |                            |                       Thimappa                     Nilkant                          |                            |                --------------------                   |                |                  |                   |             Ramappa           Nagappa              Mallappa                |                  |                   |             Bistappa       ---------------            |             (adopted)      |             |            |                |       Imnagappa    Bistappa       Mortand                |                 (went in adoption)   |                |                                   Bhimraw                |                            (Adopted Deft.5)           ------------------------------           |                            |      Bistappa(died 1931)           Trimallappa      =Smt. Akkevva (Deft 4)            |           |                        Khandappa           |                        (Deft. 1)   ------------------------------------------------------   |            |                  |                    | Nagesh      Bhimrao       Ganesh = Smt. Indirabai Gopal = (pantiff) (went adoption  (Deft. 2)  (Deft. 9)    (Deft.3)            to Martand)                         Smt. Kashibai                                                   (Deft. 10) 348      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 strongest  opposition came  from the  plaintiff’s  uncle Tirmal, father  of  Khando.  In  consequence  of  this,  the plaintiff accepted  before the  revenue authorities that the properties belonged  to the joint Hindu family and refrained from making any claim on the footing of the properties being impartible.  In   1945,  the  plaintiff’s  brother  Bhimarao defendant No. 5 who had gone in adoption to Martand, started asserting a  claim to  7 Mars of land and right of residence in  the  family  Wada  and  this  had  the  support  of  the plaintiff’s  mother   Smt.  Akkavva.  The  defendant  No.  5 Bhimarao in  assertion of his claim brought Special Suit No. 51 of1949, in the Civil Court at Kundgol on the basis of the properties being  impartible. In  June 1946,  the  plaintiff leased out  some home  farm lands  to defendants 6, 7 and 8, and this  gave rise  to proceedings under s. 144 of the Code of Criminal  Procedure, 1898.  The Sub-Divisional Magistrate Kundgol passed  an order  restraining defendants  2, 3 and 5 from disturbing  the possession of defendants 6, 7 and 8 and this order  was  kept  in  force  by  the  former  State  of

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Jamkhandi till  merger in  the former  State  of  Bombay  in August, 1948.  The State  Government revoked  the order with effect from  December 15,  1948, as  a result  of which  the defendents 6,  7 and  8 brought suits for injunction. Due to discord in  the family,  the plaintiff  left  the  ancestral residential house  at Kundgol  and started  residing in  his bungalow. The  plaintiff has  admittedly been  regranted all the watan  land under  sub-s. (1)  of s.  4 of Act No. 60 of 1950 and  s. 7  of Act  No. 22  of 1955  as if  it  were  an unalienated land,  being the holder of the watan to which it appertained, and  he is  deemed to  be an  occupant  thereof within the meaning of the Bombay Land Revenue Code, 1879.      The defendants  filed separate  written statements  and repudiated the  plaintiff’s  claim  of  impartibility.  They denied that the suit 349 properties formed  an impartible  estate and that succession to  the   estate  was   governed  by   the  rule  of  lineal primogeniture. The  defendant No.  1 asserted that there had been at  least three  partitions in the family. According to him, the  allotment of the properties described in Schedules F and  G to  the two  branches  of  Gundopant  and  Lingappa represented allotment  of shares  on partition.  He  pleaded that all  the properties  described in Schedules B C D and E were joint  family properties  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.      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 of the junior branches of Gundopant and Lingappa were not allotted to them as their share on partition and therefore had to be put into the hotchpotch.  He accordingly  passed a preliminary decree for partition,  declaring the  plaintiff’s share  to be one- twentyfourth  of  the  entire  estate  and  to  other  minor reliefs. On  appeal, the  High Court  upheld the judgment of the trial  Judge, holding  that the suit properties were not impartible and  were therefore  liable to  partition, but it set aside 350 the direction with regard to Schedules F and G properties on the finding  that the two branches of Gundopant and Lingappa had separated from the joint family. It accordingly modified the decree  of the  learned trial  Judge and  held that  the plaintiff was  entitled to one-sixth share in the properties described in Schedules B to E.      Arguments in  these appeals  have been  confined to the question as  to whether, as a matter of law, even if it were assumed that the plaintiff had succeeded in proving that the

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Kundgol Deshgat  Estate was  an impartible  estate, and that succession  to  it  was  governed  by  the  rule  of  lineal primogeniture, the incident 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, and it is no longer open  to the plaintiff to make any claim on the basis of the alleged custom of impartibility or the rule of lineal primogeniture.      The questions  that fall  for  determination  in  these appeals are,  firstly,  whether  the  impartibility  of  the tenure of  a paragana  watan appertaining to the office of a Hereditary District (Paragana) officer in respect of which a commutation  settlement   has  been   effected,   regulating succession to  the property, by reason of family custom or a local custom  being  the  incidents  of  such  watan  stands abolished by virtue of s. 3 of Act No. 60 of 1950 or s. 4 of Act No.  22 of  1955, and, secondly, whether the watan lands lost the  character of  being joint family property with the resumption of  the watan under s. 3 of Act No. 60 of 1950 or s.4 of  Act No.  22  of  1955  and  re-grants  thereof  were exclusive to  the plaintiff under s. 4 of Act No.22 of 1955, by reason  of his status as the watandar and therefore, they belonged to  the plaintiff and were not capable of partition There is no merit in any of these submissions.      It is  argued that  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 351      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 of  the watan the suit properties lost the character of being joint family property with the resumption of the  watan and  the re-grants  of  the  suit  lands  were exclusively to  the plaintiff under sub-s. (1) of s 4 of Act No. 60 of 1950 and sub-s. (1) of s. 7 of Act No. 22 of 1955, by reason of his status as the watandar and, therefore, they exclusively belonged  to the  plaintiff and  they  were  not capable of  being partitioned.  There is  no  merit  in  the submission.      The decision of these appeals must turn on the question whether the  impartibility of  the estate  and the  rule  of lineal primogeniture  by which succession to it was governed makes the  suit properties  the self  acquired or  exclusive properties  of  the  plaintiff  and,  therefore,  cannot  be partitioned by  metes and  bounds between the members of the joint family.  In Martand  Rao v.  Malhar Rao,(1)  the Privy

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Council ruled as follows :           "If an  impartible estate  existed  as  such  from      before the  advent of  British Rule,  any settlement or      regrant thereof  by the British Government must, in the      absence  of   evidence  to  the  contrary,  and  unless      inconsistent  with   the  express   terms  of  the  new      settlement, be presumed to continue the estate with its      previous incidents  of impartibility  and succession by      special custom." It also held in that case : 352           "When there is a dispute with respect to an estate      being impartible  or otherwise  the onus  lies  on  the      party who  alleges the  existence of a custom different      from the  ordinary law  of  inheritance,  according  to      which custom  the estate  is to  be held  by  a  single      member, and  as such, not liable to partition. In order      to establish  that any estate is impartible, it must be      proved that  it  is  from  its  nature  impartible  and      decendible to a single person, or that it is impartible      and descendible by virtue of a special custom."           "Any such  special custom  modifying the  ordinary      law of  succession must  be ancient  and invariable and      must be  established to  be so by clear and unambiguous      evidence."      The courts  below in  their well  considered  judgments have considered  minutely and  elaborately the  whole of the evidence, both oral and documentary, led by both the parties on the  question of  custom, and  have come  to a definitive finding that  the evidence  is of little or no assistance to establish the  alleged custom pleaded by the plaintiff as to the impartibility  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.      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,(1) the  headnote of which is that : 353           "Deshgat watan or property held as appertaining to      the office of Desai is not to be assumed prima facie to      be impartible.  The burden of proving the impartibility      lies upon  the Desai,  and on  his failing  to prove  a      special tenure  or a family or district or local custom      to  that   effect,  the   ordinary  law  of  succession      applies." In a  suit for  partition of  property  forming  part  of  a Deshgat estate brought by the younger brothers against their eldest brother  who held  the hereditary  district office of Desai, partly  within the  State  of  Jamkhandi  and  partly within the  territory of British India, the defence was that

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the watan  was held  by him as an impartible estate and that he was  entitled being  the  watandar  to  be  in  full  and exclusive possession  thereof, subject to a right by custom, that a  brother should receive maintenance out of the income derived from  it. The  Court of  first instance having found that there was no invariable rule against the partition of a Deshgat watan,  the High Court refused to allow effect to be given to  what had  not been  proved to  be "the established governing rule  of the family, class or district" sufficient to establish  the impartibility  of the estate and held that the watan  in question was subject to the general Hindu law, including the  presumption as  to  the  right  to  partition belonging to  the members  of the  family to  which  it  had descended. The Judicial Committee upheld the decision of the High Court  holding that there was no general presumption in favour of  the impartibility of an estate of this kind as to shift the  burden of proof; the burden of proof was upon the Desai, who seeks to show that the property devolved upon him alone, in  contravention of  the ordinary rule of succession according to  the Hindu law, and that no sufficient evidence had been  given by  the watandar either of family custom, or of district custom, to prevent the operation of the ordinary rule of law whereby the property would be partible.      In Vinayak  Waman Joshi  Rayarikar v.  Gopal Hari Joshi Rayarikar &  Ors.,(1) the  Court of first instance held that by custom  a Deshgat  Inam had  become impartible  and hence dismissed the  suit for partition. On appeal, the High Court reversed  upon   the  view  that  the  mere  fact  that  the management remained  in the  hands of  the eldest branch was not sufficient to 354 establish the  plea that  the estate  was impartible.  While affirming 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)."      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.      As observed  by Sir  Dinshaw Mulla  in  his  celebrated judgment in  Shiba Prasad Singh v. Rani Prayag Kumari Debi & Ors (1)           "The keynote  of  the  whole  position,  in  their      Lordships view, is to be found in the following passage      in the judgment in the Tipperah case :(2)           "Where a  custom is proved to exist, it supersedes      the general"  law, which,  however, still regulates all      beyond the custom"           "Impartibility  is   essentially  a   creature  of      custom. In  the case of ordinary joint family property,      the members  of  the  family  have  (1)  the  right  of      partition, (2) the right to restrain alienations by the

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    head of  the family except for necessity, (3) the right      of maintenance  and (4)  the right of survivorship. The      first of  these rights  cannot exist  in the case of an      impartible estate,  though  ancestral,  from  the  very      nature of the estate. The second 355      is incompatible  with the  custom of  impartibility  as      laid down  in Sartaj  Kuari’s(1)  case  and  the  first      Pittapur case;(2)  and so also the third as held in the      second Pittapur case.(3) To this extent the general law      of the  Mitakshara has  been superseded  by custom, and      the impartible  estate though ancestral is clothed with      the incidents  of self-acquired  and separate property.      But the  right of survivorship is not inconsistent with      the custom  of impartibility.  This  right,  therefore,      still remains,  and this is what was held in Baijnath’s      case.(4) To  this extent  the estate  still retains its      character of  joint family property, and its devolution      is governed by the general Mitakshara law applicable to      such  property.   Though  the   other  rights  which  a      coparcener acquires  by birth  in joint family property      no longer  exist, the  birth-right of the senior member      to take  by survivor  ship still  remains. Nor  is this      right a  mere spes  succession is  similar to that of a      reversioner succeeding on the death of a Hindu widow to      her husband’s estate. It is a right which is capable of      being  renounced  and  surrendered.  Such  being  their      Lordships’ view,  it follows that in order to establish      that a family governed by the Mitakshara in which there      is an  ancestral impartible  estate has  ceased  to  be      joint, it  is necessary  to prove an intention, express      or implied,  on the  part of  the junior members of the      family to  renounce their  right of  succession to  the      estate." Since the  decision of  the Privy  Council in  Shiba  Prasad Singh’s case  (supra), it  is well-settled that an estate is impartible 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.      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 356 Council and  of this  Court :  Collector of Gorakhpur v. Ram Sundar Mal & Ors.!(1) Commissioner of Income Tax, Punjab. v. Krishna  Kishore(2)   Anant  Bhikappa   Patil   v.   Shankar Ramchandra  Patil  (3)  Chinnathavi  Alias  Veeralakshmi  v. Kulasekara  Pandiya   Naicker  &  Anr(4).  Mirza  Raja  Shri Pushavathi Viziaram  Gajapathi Raj  Manne Sultan  Bahadur  & Ors. v.  Shri Pushavathi  Viseswar Gajapathi  Raj &  Ors.(5) Rajah Velugoti Kumara Krishna Yachendra Varu & Ors. v. Rajah Velugoti Sarvagna  Kumara Krishna  Yachendra Varu  & Ors.(6) and Bhaiya  Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo & Ors.(7)      In Collector  of Gorakhpur  v. Ram  Sundar Mal’s  Case, supra, it was observed that though the decision of the Board in  Sartaj  Kuari’s  case  and  the  First  Pittapur’s  case appeared  to   be  destructive   of  the  doctrine  that  an impartible zamindari  could be  in any  sense  joint  family property, this  view apparently  implied in  these cases was definitely negatived  by Lord  Dunedin when  delivering  the judgment of  the Board  in Baijnath  Prasad Singh’s case. In Commissioner of Income Tax, Punjab v. Krishna Kishore’s case

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dealing with  an impartible  estate governed  by the  Madras Impartible Estates  Act, 1904, it was held that the right of junior members of the family for maintenance was governed by custom and  was not  based on any joint right or interest in the property  as co-owners.  In Anant  Bhikappa Patil’s case supra, it was observed that an impartible estate is not held in coparcenary  though it  may be  joint family property. It may  develove  as  joint  family  property  or  as  separate property of  the last  male holder.  In the  former case, it goes by  survivorship to  that individual,  among those male members who  in fact  and in law are undivided in respect of the estate,  who is  singled out  by the special custom e.g. lineal male primogeniture. In the latter case, jointness and survivorship are not as such in point the estate devolves by inheritance by  the last male holder in the order prescribed by the  special custom  or according  to the ordinary law of inheritance as modified by the custom. 357      In Chinnathavi’s  case. supra, it was observed that the dictum of  the Privy  Council in  Shiba Prasad  Singh  case, supra, that  to establish  that  an  impartible  estate  has ceased  to   be  joint   family  property  for  purposes  of succession, it  is necessary  to prove an intention, express or implied,  on the part of the junior members of the family to give  up their  chance of  succeeding to  the estate. The test to  be applied  is  whether  the  facts  show  a  clear intention to  renounce or  surrender  any  interest  in  the impartible estate  or  a  relinquishment  of  the  right  of succession and  an intention  to impress  upon the zamindari the  character   of  separate   property.  In   Mirza   Raja Gajapathi’s case,  supra, it  was observed that an ancestral impartible estate  to which  the holder has succeeded by the custom of  primogeniture is  part of the joint estate of the undivided Hindu  family. Though  the other rights enjoyed by the members  of a joint Hindu family are inconsistent in 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.      In the course of argument, great reliance was placed on the two  decisions of  this Court  in Mirza Raja Ganapathi’s 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 Ryotwari) Act, 1948 and the Madras  Impartible Estates  Act, 1904. There are express provisions made in ss. 45 to 47 of the Abolition Act for the apportionment of  compensation  to  the  junior  members  of zamindari estates  and sub.s  (2) of  s. 45 thereof provides for payment  of the  capitalised value  of the  compensation amount to them on the basis of extinction of the estate. The scheme of  the  Abolition  Act  therefore  contemplates  the continued existence  of the  rights  of  the  holder  of  an impartible estate vis-a-vis the junior

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358 members of such an estate. The facts involved in those cases were also entirely different.      In Mirza Raja Ganapathi’s case, supra it was a suit for partition for  Vizianagram  Estate,  an  ancient  impartible estate governed  by the  Madras Impartible Estates Act 1904. The claim  of the  junior members  regarding buildings which had been incorporated in the impartible estate as also their claim with  regard to  jewels treated  as state  regalia and therefore impressed  with the family custom of impartibility was negatived.  It was  held  that  despite  the  fact  that Vizinagram Estate  had been  notified to be an estate within the meaning  of  s.3  of  the  Madras  Estate(Abolition  and Conversion into  Ryotwari) Act,  1948, the extinguishment of the proprietary  right, title  and interest  of the zamindar did  not  affect  his  right  or  title  to  the  impartible properties outside  the purview  of that Act and governed by the Madras  Impartible Estates  Act, 1904,  but  as  regards other properties  falling  within  the  zamindari  including lands  were   held  to  be  partible.  With  regard  to  the buildings, it  was held  that the buildings in question were not partible  by virtue of sub-s. (4) of s. 18 of the Act as the buildings  falling within  the section  vested  in  "the person who  owned them  immediately before the vesting". The expression "the  person who owned" in sub-s. (4) of s. 18 of the Act  was held to refer to the land-holder and not to any other person. Further, the buildings were outside the limits of the zamindari estate and therefore not covered by s. 3 of the Abolition  Act. The  claim with  regard to jewels failed because they were part of the impartible estate.      In Raja Velugoti Kumara Krishna’s case, supra, it was a suit for  partition by  the  junior  members  of  Vankatgiri Estate, an  ancient impartible estate governed by the Madras Impartible Estates  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 s.  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 Act on the rights and obligations of the members of the family and held 359 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  s. 1  (16) and therefore did not come within the purview of  s. 3  of the  Abolition Act  but continued to be governed by the Madras Impartible Estates Act, 1904.      The contention  that the plaintiff holding the District Hereditary Office  of Desai  and being  the watandar  of the Kundgol Deshgat  Estate was  entitled to  remain in full and exclusive possession  and enjoyment thereof to the exclusion of the other members of the joint Hindu family, runs counter to the  scheme of  the Bombay  Hereditary Offices  Act, 1874 (for short  ‘the Watan  Act’), and  is against settled legal principles. The  plaintiff’s rights to such watan properties whatever they  were, subject  to the  rights  of  the  other members of the family.      The terms  ‘Watandar’ is  defined in  s. 4 of the Watan

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Act. It reads :           Watandar  means   a  person  having  a  hereditary      interest in  the Watan.  It includes  a person  holding      watan property  acquired by him before the introduction      of British  Government into  the locality of the watan,      or legally  acquired subsequent  to such  introduction,      and  a   person  holding  such  property  from  him  by      inheritance. It  includes a  person adopted by an owner      of a watan or part of a watan subject to the conditions      specified in sections 33 to 35". If the  words  used  in  the  definition  are  strictly  and literally construed,  it would mean that before a person can be said to be a watandar, he must have a hereditary interest both in  the watan  property and  in the  hereditary office, because it  is these two that constitute the watan. There is no basis  whatever  for  such  a  strict  construction.  The definition is  undoubtedly in two parts : the first sets out what "watandar"  means and the other states what is included in it and the question arises whether the primary definition i.e. the meaning portion of it should be regarded as primary and the  inclusive part  as illustrative  or both  the parts should be regarded as constituting one whole definition, the inclusive  part  being  supplementary  to  the  former.  The controversy arising from the rival constructions 360 placed on  the definition of "watandar" in s. 4 of the Watan Act was set at rest by the Full Bench decision of the Bombay High Court  in Vijayasingrao  Bala  Saheb  Shinde  Desai  v. Janardanrao  Narayanrao   Shinde  Desai.(1)  Prior  to  that decision, two  conflicting constructions  on the  definition had been  placed by  two Division Benches of the Bombay High Court. In  Kadappa v.  Krishtappa,(2) an alienation of watan land by  a watandar  to his  bhaubandh for  maintenance  was challenged and  Rangnekar and  Divatia, 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  alience 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 s. 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.(3) 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  part, that  is to say, the  primary definition of a "watandar" in s.4 was that he was  a person  having a  hereditary interest  in a watan, i.e. the  office and  a property  if any, and the subsequent words were  merely explanatory of the primary definition and did not  curtail it.  In view of this conflict, the specific question referred to the Full Bench in Vijayasingrao’s case, supra, was  "Whether the  term ‘watandar’ as defined in s. 4 of the  Watan Act  necessarily and always meant a person who had a hereditary interest not only in the watan property but also in  the hereditary  office". And, on a consideration of

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the scheme  and the  relevant sections  of the Watan Act and the two  earlier decisions,  the Full  Bench  preferred  the construction 361 placed on  the term ’watandar’ in Kadappa’s case, supra, and concluded that  a person who acquired watan property or held hereditary interest  in it  without acquiring the hereditary office and  without being under an obligation to perform the services attached  to each  office  was  also  a  "watandar’ within the meaning of the Watan Act.      There can  be no  doubt that the Watan Act was designed to preserve  the pre-existing rights of the members of joint Hindu family.  The word  ’family’ is  defined in s. 4 of the Watan Act  to include  ’each of  the branches  of the family descended from  an original  watandar’  and  the  expression ’head of  a family’ is defined therein to include ’the chief representative of  each branch of a family’. ’Representative watandar’ defined  in s.  4 meant  ’a watandar registered by the Collector  under section 25 as having a right to perform the duties  of a  hereditary office’. Section 5 of the Watan Act prohibited alienations of watan and watan rights. Clause (a) of  sub-s. (1)  of s. 5. thereof, referred to a watander in general  and provided  that it  would not be competent to such a  watandar to mortgage, charge, alienate or lease, for a period  beyond the term of his natural life, any watan, or any part thereof, or interest therein, to or for the benefit of any  person who  is not  a watandar  of the  same  watan, without the  requisite sanction. The expression ’watandar of the same  watan’ occurs  in many  sections of  the  Act.  As already indicated  the term  ’watandar’ as  defined in  s. 4 includes the members of a 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.      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 &  Anr. v. Laxman Mahadev  Deshpande &  Ors.(1) when the Court referred to the  decision in  Appaji Bapuji v. Keshav Shamrav.(2) and quoted the  following passage  from the judgment of Sargent, C.J., with approval:           "What  is   termed  a  Gordon  Settlement  was  an      Arrangement-entered into  in 1864  by a  Committee,  of      which Mr. 362      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   Satara  and   Poona   Districts   and   their      correspondence with  Government can, we think, leave no      doubt that  the settlements  made  by  that  committee,      unless it  was otherwise,  specially  provided  by  any      particular settlement,  were  not  intended  by  either      party to  these settlements, to convert the watan lands      into the  private property  of the  vatandars with  the      necessary incident  of alienability,  but to leave them      attached to  the  hereditary  offices,  which  although      freed from the performance of service remained intact." The Court continued:

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         "But the Commutation settlement does not confer an      indefeasible  title  to  the  grantee,  for  the  right      affirmed by  the settlement under s. 15(2) of the Watan      Act is  liable to  be determined by lapse, confiscation      or resumption  (s. 22  of the  Watan  Act).  The  State      having created  the watan, is entitled to put an end to      the watan  i.e. to  cancel the  watan and to resume the      grant (1): Bachharam Datta Patil v. Vishwanath Pundalik      Patil.(1) Therefore  if there  be mere  commutation  of      service, the  watan office  ordinarily survives without      liability to  perform service,  and on that account the      character of  watan property  still remains attached to      the grant.  But the  State Government  may abolish  the      office and  release the  property from its character as      watan property."      The Court  then dealt with the scheme of the Act No. 60 of 1950  and observed  that in the light of the incidents of the watan  and the  property granted for remuneration of the watandar, that  the relevant provisions of the Act had to be considered in regard to the right of the watandar to regrant of the  watan lands.  It was  observed that  on  a  combined operation of  sub-s. (3)  of s.  3 and  s. 4 of the Act, the holder of  the watan land is entitled to regrant of the land in occupancy rights as an unalienated land. As to the effect of the 363 legislation, it was observed that s. 3 in terms provides for abolition  of  the  watan,  extinction  of  the  office  and modification of  the right  in which  the land  is held. The abolition, extinction and modification arise by operation of s. 3  of the Act, and not from the exercise of the executive power of confiscation or resumption by the State, and it was then said:           "Undoubtedly the  power of  resumption of  a watan      may be  exercised under s. 22 of the Watan Act and such      a resumption  may destroy  the 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."      As to  the effect  of the resumption of the watan lands under sub-s.  (3) of s. 3 and their regrant under sub-s. (1) of s. 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  s. 22  of the Bombay Hereditary Offices      Act, 1874,  of resumption is statutorily enforced by s.      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  s. 6 that cash compensation be awarded for      loss of  the right  to cash  allowance or  remission of      land revenue  and has by s. 4 conferred upon the holder      of the  watan land,  for loss  of his right, a right to      regrant of  the land  as occupant  and  free  from  the      obligation imposed  by its  original  tenure  as  watan      land..... But  the operation  of s. 3 all Paraganas and      Kulkarni watans  falling within  the Act are abolished,

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    the right  to hold office is extinguished, and the land      granted as  remuneration for  performance of service is      resumed. The holder of the land is thereafter liable to      pay land revenue, and is 364      entitled, on  payment of  the occupancy  price  at  the      prescribed rate, to be regranted occupancy rights as if      it is  unalienated land.  The right  so  conferred  is,      though not  a right  to cash  compensation, a  valuable      right of  occupancy in  the land.  By the resumption of      watan land  and regrant thereof in occupancy right, all      the restrictions  placed upon  the holder of watan land      are by  the provisions  of the Watan Act, and the terms      of the  grant, statutorily  abolished. But the right of      occupancy granted  by s.  4 adequately  compensates the      holder  for  loss  of  the  precarious  interest  of  a      watandar, because the land regranted after abolition of      the watan,  is held  subject only  to the  restrictions      imposed by  sub-s. (2)  of s.  4, and is freed from the      incidents of  watan  tenure,  such  as  restriction  on      alienation  beyond   the  life   time  of  the  holder,      devolution according to the special rule of succession,      and the liability to consideration or resumption."      It must  therefore be  observed that the commutation of service under  sub-s. (1)  s. 15 of the watan lands by which the watandars  were relieved in perpetuity from liability to perform  the   services  attached   to  their   offices   in consideration of  ’judi’ or quit-rent charged upon the watan land, unless  where it  was otherwise  provided for, had not the  effect  of  converting  watan  land  into  the  private property of  the watandars  with the  necessary incident  of alienability but  to leave  them attached  to the hereditary offices  which,  although  freed  from  the  performance  of services, remained  intact. Despite  commutation of service, the  office   of  watandars   ordinarily  survived   without liability to  perform  service,  and  on  that  account  the character of  the watan lands still remained attached to the grant. By the end of the first half of the 19th century, 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. 365      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 is  that the  courts  below  manifestly erred in  passing  a  decree  for  partition  of  the  watan property described  in Schedules  B and  C appended  to  the plaint. We  are afraid,  these submissions  based  upon  the alleged  impartibility   of  the  watan  properties  or  the

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applicability of the rule of lineal primogeniture regulating succession to  the estate  cannot prevail,  as  these  being nothing more than incidents of the watan, stand abrogated by sub-s. (4) of s. 3 Act No. 60 of 1950 and s. 4 of Act No. 22 of 1955.      It seems  plain to  us that the effect of Act No. 60 of 1950 and Act No. 22 of 1955 was to bring out a change in the tenure or  character of  holding as  watan land but they did not affect  the other  legal incidents of the property under personal law.  It will  be convenient to deal first with the provisions of  Act No. 60 of 1950. Section 3 of the Act lays down that,  with effect  from, and  on, the  appointed  day, notwithstanding  anything   contained  in  any  law,  usage, settlement, grant,  sanad or  order,  all  watans  shall  be deemed to  have been abolished and all rights to hold office and any liability to render service appertaining to the said watans shall  stand extinguished.  It further lays down that subject to the provisions of s. 4, "all watan land is hereby resumed" and  "shall be  deemed to be subject to the payment of land  revenue under  the provisions  of the  Code and the rules made  thereunder as  if it  were an unalienated land". The term  ’Code’ as  defined in  s. 2  (b) means "the Bombay Land Revenue  Code, 1879".  All incidents  pertaining to the said watans stand extinguished from the appointed day.      Sub-s. (1)  of s.  4 of  the Act,  insofar as material,      provides:           "4 (1).  A watan land resumed under the provisions      of this  Act shall.......  ..be regranted to the holder      of the watan to which it appertained, on payment of the      occupancy price......... and the holder shall be deemed      to be  an occupant  within the  meaning of  the Code in      respect of 366      such land  and shall  primarily be  liable to  pay land      revenue to  the State Government in accordance with the      provisions of  the Code  and the rules made thereunder;      all the  provisions of  the Code  and rules relating to      unalienated land  shall, subject  to the  provisions of      this Act, apply to the said land." Clause (2) of Explanation to s. 4 reads:           "Explanation-For the  purposes of this section the      expression "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      The provisions  of Act  No. 22 of 1955 are more or less similar.  Likewise,   s.  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 s. 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      Upon a  plain reading  of sub-s. (1) of s. 4 of Act No. 60 of  1950 and  of s.  7 of Act No. 22 of 1955, it is clear that watan  lands resumed under the provisions thereof, have

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to be  regranted to the holder of the watan, and he shall be deemed to  be an  occupant within the meaning of the Code in respect of such land. 367 The expression ’holder’ as defined in cl. (i) Explanation to s. 4  of the  former Act  includes "all  persons who, on the appointed day,  are the watandars of the same watan" and cl. (1) of  Explanation to  s. 7 of the latter Act defines it to include ’an  a lienee  holding land under a watan". The term "an alienee"  is defined  in s.  2 (1)  (iii) to  mean  "the holder of an alienation and includes his co-sharer".      The Watan  Act contemplated two classes of persons. One is a larger class of persons belonging to the watan families having a  hereditary interest  in the watan property as such and the  other a smaller class of persons who were appointed as representative  watandars and  who were  liable  for  the performance of  duties connected  with the  office  of  such watandars. As  already indicated, it would not be correct to limit the  word "watandar"  only to  this  narrow  class  of persons who  could claim  to have a hereditary interest both in the  watan property  and in  the hereditary office. Watan property had  always been  treated as  property belonging to the family and all persons belonging to the watan family who had a  hereditary  interest  in  such  watan  property  were entitled to  be called  "watandars of the same watan" within the Watan  Act. That  being so, the members of a joint Hindu family must  be regarded  as holders of the watan land along with the  watandar for  the time  being, and  therefore  the regrant of  the lands to the watandar under sub-s. (1) of s. 4 of Act No. 60 of 1950 and under s. 3 of Act No. 22 of 1955 must enure to the benefit of the entire joint Hindu family.      It appears  that the same view has been taken in a Full Bench decision of the Bombay High Court in Laxmibai Sadashiv Date v. Ganesh Shankar Date(1).      A controversy  had arisen  as to the purport and effect of the  non-obstante clause  contained in s. 4 of the Bombay Inferior Village  Watans Abolition  Act, 1959. Malvankar, J. in Dhondi  Vithoba v.  Mahadeo Dagdu(2) held that the effect of sub-s. (3) of s. 4 read with s. 5 of the Act was to bring about a  change in  the tenure  or character  of holding  as Watan land,  but it did not affect 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 368 s. 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,(1)  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  s. 5  or 6,  or 9 of that      Act."            xx             xx            xx              xx           "It  is   not  possible  for  us  to  consider  it

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    reasonable to held that although the lands were resumed      by the  Government and  the holder himself had lost all      his rights till the lands were re-granted to him except      the right of asking, for re-grant, the incidents of the      property under  personal law appertaining to impartible      property would survive the extinguishment of the tenure      and resumption of the land by the State." It was  obviously wrong  in reaching  the conclusion that it did.      In Laxmibai Sadashiv Date’s case, supra, the Full Bench reversed the  decision of  the Division Bench and upheld the view taken by Malvankar, J. in Dhondi Vithoba’s case, supra, observed:           "It is  undoubtedly true  that s.  4 starts with a      non-obstante clause,  but it is a well recognised canon      of construction  to give  effect to non-obstante clause      having regard to the object with which it is enacted in      a statute.  The non-obstante clause is contained at the      inception of  s. 4  and the  sole object  of s. 4 is to      abolish alienation  and rights and incidents in respect      thereof. The right of a member of joint Hindu family to      ask for partition of a joint family 369      property cannot  be regarded  as a  right  relating  to      grant of  land as  service inam  or as  an incident  in      respect thereof.           xx              xx            xx            xx           The object of s. 4 was not to affect in any manner      rights created  under the  personal law relating to the      parties and  if the  property belonged  to joint  Hindu      family, then  the normal  rights of  the members of the      family to  ask  for  partition  were  not  in  any  way      affected by reason of the non-obstante clause contained      in s. 4."      These observations,  in our  opinion,  are  clearly  in consonance with  the true  meaning and  effect of  the  non- obstanate clause.      It still  remains to  ascertain the impact of sub-s (2) of s.  4 of Act No. 60 of 1950 and sub-s. (3) of s. 7 of Act No. 22 of 1955, and the question is whether the occupancy of the land  regranted under  sub-s. (1)  of s. 4 of the former Act and  sub-s. (2)  of s.  7 of  the latter  Act  is  still impressed with  the character  of being impartible property. All that  these provisions lay down is that the occupancy of the land  regranted under  sub-s. (1)  of s. 4 of the former Act shall  not be  transferable or  partible  by  metes  and bounds without  the previous  sanction of  the Collector and except on  payment of  such 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.      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

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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 370 making of a partition by metes and bounds, is to ensure that the actual  tiller of  the soil  is not deprived of his land except  for  valid  consideration,  or  that  the  partition effected between  the members  of a  family is not unfair or unequal.  These   provisions  therefore   do  not  create  a statutory  bar  to  a  transfer  or  a  partition  once  the conditions mentioned therein are fulfilled.      In the result, the appeals must fail and are dismissed. There shall however be no order as to costs. P.B.R.                                    Appeals dismissed. 371