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PETITIONER: SHIVAGONDA SUBRAIGONDA PATIL AND ORS.

       Vs.

RESPONDENT: RUDRAGONDA BHIMAGONDA PATIL AND ANR.

DATE OF JUDGMENT: 14/10/1969

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN SIKRI, S.M. MITTER, G.K.

CITATION:  1970 AIR  453            1970 SCR  (2) 787  1969 SCC  (3) 211

ACT: Wat  Hukums-Kolhanur State-Patel-ki-Watan inam-If  could  be alienated contrary to Specific Wat Hukums-Bombay  Hereditary Offices Act (III of 1874)-Applicability-Limitation Act, art. 142.

HEADNOTE: The  respondent filed a suit against the appellant  alleging that   the  latter  had  sold  the  suit  property  to   the respondent’s father undertaking to redeem the mortgages  and hand  over possession of the property.  It was averred  that the appellant, after redeeming the mortgages wrongfully  re- tained   possession  of  the  properties  contrary  to   the stipulation   and  the  sale  effected  in  favour  of   the respondent’s  father.  The appellant contested the  suit  on the  ground  that  the sale in favour  of  the  respondent’s father  was void under the then prevailing law  in  Kolhapur State  and  that  the suit was barred  by  limitation.   The District Court decreed the suit and the High           Court confirmed. On the questions (i) whether according to the law in  force  as  could be ascertained from  the  relevant  Wat Hukums  and the provisions of the Bombay Hereditary  Offices Act  (111  of 1874)  in so far as it was applicable  to  the State  of  Kolhapur, the alienation of  Patel-ki-Watan  Inam land  was  void  and (ii) whether the  suit  was  barred  by limitation, HELD  : (i) On the construction of the various  Wat   Hukums the  alienation  in favour of the  respondent’s  father  was invalid.  The Bombay Hereditary Offices Act did not apply to the Kolhapur State so as to override the specific directions of  the Wat Hukums which had legal and binding force in  the State.   In this case there was a specific prohibition  from alienating  Patel-ki-Watan and other similar inams. [794  F, G] Rangappa  Venappa  Akole v. Laxman Malyappa, 62  Bom.   L.R. 639, referred to. (ii) The  suit was not barred by limitation.  The  suit  was against  a person who was not entitled to  possession.   The appellant did not dispossess the respondent and as such Art. 142 of the Limitation Act was not applicable. [795 B-C]

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 734 of 1966. Appeal  by special leave from the judgment and  order  dated April 20, 1964 of the Bombay High Court in Second Appeal No. 1188 of 1958. N.   D. Karkhanis and A. G. Ratnaparkhi, for the appellant. D.   D.  Verma,  R.  Mahalingier and  Ganpat  Rai,  for  the respondents. up CI/70-5 788 The Judgment of the Court was delivered by Reddy,  J.  This is an appeal by special leave  against  the judgment of the Bombay High Court confirming the judgment of the  Assistant  Sessions Judge, Kolhapur  who  reversed  the judgment and decree of the civil judge of Junior Division at Gadhinglaj whereby the suit of the plaintiff-respondent  was dismissed.   The  respondent had filed a  suit  against  the appellant  Shivagonda Subraigonda Patil and his son  Nijappa Shivagounda  Patil,  Virgonda  Shivagounda  Patil,   Bhimapa Shivagounda  Patil  and Rayappa Shivagonda  Patil  with  the allegation   that   on  27-5-1921   the   first   defendant, Shivagounda who was the karta of the joint family consisting of himself and his four sons, sold by a registered sale deed for  a  sum of Rs. 2,400 the suit properties  admeasuring  6 acres  and  37 guntas out of R.S. No. 62/2 and 62/3  to  the plaintiff’s  father Bhimgonda.  The properties sold  to  the plaintiff’s  father  were previously mortgaged  and  it  was averred  that the first defendant had undertaken to pay  the mortgage  debt  and  hand  over the  suit  property  to  the plaintiff’s  father.  It appears that part of  the  property out of R.8. 62/2 to the extent of four acres, 36 guntas  was mortgaged  to Hanmgond Balgonda Patil for Rs. 1,000 and  two acres  and  one gunta out of S. No. 62/3  was  mortgaged  to Virgonda  and  four other persons.  It was the case  of  the plaintiff  that  after the death of  Hanmgond  Balgonda  the first  defendant repaid the debt to his widow  Gangabai  and obtained possession of the hypotheca but instead of  handing over  possession to the plaintiff’s father as stipulated  in the sale deed he retained the possession.  In respect of the other two acres and one gunta which was mortgaged to Vironda and others he alleged that the first defendant redeemed  the mortgage  and handed over the possession to the  plaintiff’s mother as the guardian of the plaintiff who was then a minor and that after the plaintiff’s mother got into possession of the  property the Kolhapur government attached the  property and  took  possession of it in 1928 on the ground  that  the mortgage  in favour of Virgonda and others was  contrary  to Wat  Hukums.   However, it appears that on or  about  3-3-51 attachment  was vacated but the possession of this land  was handed over by the collector to the first defendant  instead of the plaintiff from whose possession it was taken.  It was the  plaintiff’s case that both in respect of  the  property that  was mortgaged to Hanmgond Balgonda and that which  was mortgaged to Virgonda and others it was the first  defendant that  retained possession of the said lands contrary to  the stipulation   and  the  sale  effected  in  favour  of   the plaintiff’s  father.  It was also the plaintiff’s case  that Bhimgonda who was a hissadar bhauband of the suit land which was  a  part of Patilki watan inam land on the date  of  the sale deed dated 27-5-21 was entitled to claim possession of 789 the property on the strength of his title deed, as such  the

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revenue  court  erred  in handing  over  possession  of  the portion of the suit property to the first defendant on 3351. The  first  defendant  respondent No.  1  contended  in  his written statement that the suit being patilki watani service inam  property, its transfer was declared by  watahukums  of the  Kolhapur State to be illegal and void  because  neither the plaintiff nor his father’ was either the nawawala of the patilki watani service inam lands or the male members of the senior  branch of the senior family.  It was also  contended that  the mortgage in 1915 by the first defendant in  favour of Hanamgonda was also contrary to wat hukums and  therefore void.   Even  apart from this defect the suit  property  was never  in the possession of the deceased Hanamgonda  in  his capacity as the mortgagee but that it has always been in his possession  as the owner thereof.  Accordingly the suit  was barred  by  limitation.  On these pleadings  several  issues were  framed  but  for the purposes  of  this  appeal,having regard to the arguments addressed before us only two  issues are  relevant, namely whether the sale under exhibit  37  in favour of the father was void under the then prevailing  law in Kolhapur State and whether the suit was in time.  It  may be mentioned that the trial court had dismissed the suit  of the  plaintiff but the district judge in appeal allowed  it, set  aside  the decree and remanded the suit  to  the  trial court for fresh disposal according to law with the direction that   the  parties  should  be  allowed  to   amend   their pleadings.     After  remand  the trial court  reframed  the issues having  regard    to  the amendment of the  pleadings but in so far as thing issues with which we are concerned it held  against  the plaintiff and again dismissed  the  suit. The  plaintiff appealed to the district court which  allowed the  appeal holding that the impugned alienation  was  legal and did not offend any of the provisions of the hukums  that were  in  force  and that the suit was  within  time.   The, appeal  to the High Court of Bombay was  unsuccessful.   The High  Court held that under the law in force  alienation  of service  inams were alone declared to be invalid  but  since the  subject  matter  under appeal did not  pertain  to  the service inam land, the alienation was not void, nor was  the suit barred by reason of the defendant’s adverse possession. The question we are called upon to determine in this  appeal is  whether  according  to  the  law  in  force  as  can  be ascertained from the relevant wat hukums and the  provisions of  the  Bombay  Hereditary  Offices Act  III  of  1874,  as subsequently  amended in so far as it is applicable  to  the State of Kolhapur, the alienation of the patel-ki-watan inam land,  is  void  and  whether the  suit  of  the  plaintiff- respondent  is barred by limitation.  Before we embark  upon an enquiry in respect of these two questions, it 790 would be necessary to understand the nature and significance of the wat hukum and the terms used therein, appertaining to watans  and inams.  In the princely State of  Kolhapur,  the word  wat  hukum has been used not only for the  firmans  or decrees  of  the  ruler but also for the  orders  issued  by several  authorities.  This indiscriminate use of the  words has  caused  a great deal of confusion, and  no  wonder  the Supreme  Court  of that State had occasion to  observe  that they constituted a "wilderness".  This term, it was noticed, was  not  confined to orders passed by the  ruler  but  also referred  to  those orders which were issued  by  the  Chief Justice, by Sarsubha (the commissioner of revenue  division) and  also  even by sub-divisional officers  like  the  prant officer  who corresponded to the deputy collector.   But  it was  not  every wat hukum that had the force of  law.   Only

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those wat hukums which were purported to have been expressly issued  by the authority of the ruler whether they  emanated from  the Prime Minister, the Political Agent,  sarsubha  or the grant officer, had the force of law.  All the other  wat hukums  which  were  issued  by  the  several  officers   as executive  orders, did not have any legal force.   We  shall refer  to  those relevant wat hukums which  pertain  to  the inams  in order to determine whether those inam grants  were inalienable  and  subject to the rule of  primogeniture.   A watan or inam which in its primary sense means a gift was  a grant made by a ruler who had the power or authority to make these  inams.   These inams were of several  kinds,  namely, religious.  endowments, saranjams, service inams, etc.,  but we  are  here  concerned only  with  service  inams.   These service  inams have an origin of antiquity and go back to  a feudal  era  where  the ruler  administered  the  government through  village  administration  by  compensating   various services  required  to be performed by it generally  by  the grant of lands.  The servants or officers of the village who rendered these services were known as salute and the  number of  them  generally were twelve known collectively  as  bara balute of which in Maratha villages and others where it  was adopted the village headman was one of such balute known  as patel.   There  were  others  like  kulkarni   (accountant), deshpandya  (district accountant), washerman, barbar,  etc., with which we are not here concerned (vide Wilson’s Glossary of Judicial and Revenue terms).  The land which was  granted for the performance of each of these services was hereditary and  held  subject to the terms of the grant  in  the  sanad which   governed  inheritance,  inalienability,  etc.    The subject matter of the suit as already noticed formed part of the  patel-ki-watan  land and was situated in  the  Kolhapur State,  where  it  is contended that according  to  the  wat hukums  then in force a sale in favour of a bhauband of  the vendor,  but not a nawawala was valid.  The bhauband we  are informed  by  the learned advocate for the  appellant,  Shri Karkhanis, and it 791 is   not  denied  by  the  respondents’  learned   advocate, literally means kinsman or relative, has been translated  as watandar of the same watan in the Supreme Court, and kinsman by  the  translator  in  the High  Court.   A  reference  to Wilson’s Glossary shows that the word Bhau means a  brother, a cousin.  There is no doubt that it refers to relatives  of the  vendor.  The word nawawala means the registered  holder of  the  watan.  An excerpt from page 12 of  V.  S.  Desai’s book-The  Kolhapur Inam Law-has been cited before us  namely that  whenever  the  holder  of  an  inam  died,  it  became necessary  to  undertake a succession inquiry "in  order  to ascertain the person "upon whom the inam should descend  and the  person so designated "was called the nawawala.  He  was the holder of the inam and had the right to render  service, if  service had to be rendered." It was therefore  urged  by the  plaintiff  that  as  both the  vendor  and  the  vendee belonged to the watandar’s family the transaction was  valid under the wat hukums of the Kolhapur Darbar, as such we will have to examine these wat hukums. The first of the documents upon which reliance is placed  is wat  hukum No. 76 of 1282 fasli issued on  13-4-1873.   This prohibits  by  cancelling  all prior  orders  pertaining  to service  inams, the partition and mortgage of  watan  lands, Para 7 of this wat hukum states that the owner of the  lands above-mentioned  not being private property has no right  to alienate  by  way of mortgage, sale, gift,  etc.,  and  such transfer  will not be recognized by civil or revenue  courts

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in the Kolhapur State.  Only the right of the person  taking such land will be recognized.  If deeds alienating by way of mortgage, etc., as mentioned above are not executed from the owner  and  registered  in  the  government  offices,   such registration  should  not be construed as  approval  of  the government  to such transfers. On 13-9-1876,  the  Political Agent issued circular No. 28 of 1286fasli with reference  to the  wat hukum No. 12 of 1283 fasli issued on July  12,1871. It  said even though the wat hukum issued in the  year  1871 had  declared  that  a person in whose name  the  watan  was continued should not give or take by way of mortgage,  gift, etc.,  that  provision  is not complied  with  and  it  was, accordingly, made known by that circular that those who  had mortgaged,  etc.,  their lands should  redeem  within  three months failing which the lands will be forfeited.  It  added that  even if the lands were mortgaged hereafter they  would be forfeited.  Again on 4-8-1887, sarsubha issued wat  hukum No.  19 of 1297 fasli, after referring to the orders  issued from  time to time that the watan lands of  patel  kulkarni, mahdra, etc., should not be mortgaged or sold, it  proceeded to  make  an exception in these words : "It  should  not  be understood that this order puts any restrictions on  village officers, patel kulkarni, etc., mortga- 792 ging,  etc.,  their lands with bhaubands".   While  all  the previous  wat hukums appear to have  prohibited  alienations whether  by  way of sale or mortgage absolutely on  pain  of their  being forfeited if the provisions were  not  complied with, this wat hukum seems to make an exception in favour of mortgages between bhaubands.  Thereafter in 1896, wat No.  9 of  1306 issued by Sir Nayadhish (Chief  Justice)  cancelled all wat hukum pertaining to service wat hukums issued  prior to 1876.  A subsequent wat hukum 39 of 1305 issued- on 26-2- 1896  states that as some doubts had been raised because  of the use of vernacular words in wat hukum No. 19 of  4-8-1887 pertaining to watans of the watandars performing service, it was  decided to prohibit the watandars or his pot  bhaubands from alienating watan in any form.  It was directed that  an endorsement  to  this effect should be made on  wat  No.  19 dated  4-8-1897  and that the same. be brought  into  force. This sarsubha wat was a huzur resolution having the force of law.  There are several other wat hukums namely sarsubha wat hukum  35 of 1335 fasli dated March 12, 1904,  sarsubha  wat hukum 28 of 1318 fasli, but it is not necessary to deal with them as they do not ’refer to this aspect of the matter.  By sarsubha wat hukum No. 44 of 1322 fasli, dated 23-5-1913, it was  mad-,  known  that "every inam  of  whatever  type  was impartable and was to be continued with eldest son only.  If any  partition  takes place hereafter, government  will  not approve of it.  Every partition effected prior to this order will   not  be  affected  as  this  order  will   not   have retrospective  effect." It is, therefore, seen that by  this date not only the alienation of service inams was prohibited but  it was made impartible, succession to which was  to  be governed by the law of primogeniture.  Then we get  sarsubha wat  No.  4 of 1323 fasli issued on  11-6-1913  approved  by huzur resolution No. 5 of 1913.  This wat is translated thus :               "Prohibiting,  morgaging or alienating in  any               other form the impartible inams.               Be it known that there is a ban on  mortoaging               or  disposing  of  in any  manner  like  other               service  watans  the  inams  which  have  been               declared impartible by the foregoing wat hukum               and  that all the wat hukums prohibiting  such

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             alienation issued so far are applicable to the               inams  declared impartible by the wat No.  44.               This will come into force from the date of the               Gazette." The trial court points out that there were certain decisions of the Kolhapur High Court which lay down that alienation of whatever  type of inam was prohibited except a sale  to  the nawawala  but they were based on the presumption that  these two  wat hukums 44 of 1322 and 4 of 1323 are  in  existence. It was further stated 793 that these wat hukums were omitted by wat hukum 40 of  1917, as can be seen from the list of the non-existing wat  hukums given at p. 10 of appendix to vol.  II of the collection  of wat  hukums.  Though it is stated that the wat hukum  40  of 1917 was not available but from the first column it  appears that  it  was not in force in respect of two  categories  of inams  mentioned in it which categories do not  include  the service  inams.   There is another sarsubha wat  4  of  1533 fasli  issued  on 28-3-24 for granting  permission  only  to Nawawala  wajirdars  watandars to purchase  lands  from  pot bhaubands.  These two wats Nos. 4 of 1323 and 4 of 1333,  it is said, vary the absolute prohibition against alienation by permitting patel-ki-watan service inam to be mortgaged  like other  service inams, though alienation would be void if  it is made in favour of any one other than bhauband and without permission even to bhaubands.  It was sought to be contended before  the  High  Court  and also  before  us  that  though initially  under  the Bombay Hereditary Offices Act  III  of 1874, which was made applicable to the State of Kolhapur  by notification  of  1297 fasli published in the  Karvir  State Gazette (Kolhapur) on 3-3-1888, sec. 5 which prohibited  the alienation if not made with the sanction of the  government, was substituted by a subsequent amendment by Bombay Act V of 1886.   This  amended  section,  however,  only   prohibited alienations in any form in favour of any person who was  not a bhauband beyond the natural life-time of the watan holder. This  amended  provision also was applied  to  the  Kolhapur State  in the same way as the main Act was applied.  It  is, however  urged that the Bombay watan Act and  the  amendment were only applied in spirit that is according to the obvious meaning  or import unlike other acts which were  applied  to the Kolhapur State in their entirety without any limitation. But the High Court of Bombay did not find it necessary to go into  the  question   as to whether the Bombay  Act  or  its amendment applied in letter or spirit, because according  to it, the Kolhapur law was also precisely the same as the  law prevailing in the Bombay State.  We have already set out the various wat hukums and are of the view that the  alienations by  way  of sale at any rate were prohibited in  so  far  as application   of  the  Bombay  Act  and  its  amendment   is concerned, we are one with Gajendragadkar, J. as he then was when delivering the judgment of the full bench consisting of himself, Chagla, C.J. and Shah J. as he then was, in Ramappa Vanappa Akale v. Laxman Malyappa Akale(1), observed:               "The  decision of this question has been  made               somewhat difficult by reason of the fact  that               in  the State of   Kolhapur the Watan Act  has               been made applicable in spirit’ and there  are               a large number of vat-hukums               (1)   62 B.L.R. 839,841.               794               issued  in  respect of questions  relating  to               inami lands from time to time. In dealing  with               the  questions  pertaining to the  watans  the

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             courts in Kolhapur have therefore to  consider               this mass of vat-hukums and apply them to  the               facts before them.  In doing so they have also               to  bear in mind the fact that the  spirit  of               the Watan Act had also been made applicable to               the State.  Mr. Justice Madgavkar who presided               over the Supreme Court at Kolhapur for several               years  strongly criticised the application  of               the  Watan  Act in spirit only on  the  ground               that he was unable to understand what such  an               application  of the spirit of the  Act  really               meant.   ’Either an Act in any or all  of  its               sections,  applies, or it does not’,  observed               Madgavkar  J. ’To apply it in the  spirit  but               not  in the letter is beyond the power of  the               courts...........  With respect we agree  with               this criticism made by Mr. Justice Madgavkar." What  the full bench was dealing with the  question  whether under the wat hukums of the Kolhapur State, the sanadi  inam land which was impartible reverts to the State on the  death of  the  holder,  and after an examination of  all  the  wat hukums it expressed the view that whatever the  restrictions may  be upon that land which does not make the property  the absolute  property of the watandar, that property  does  not revert  to  the State but descends to the next heir  by  the rule  of  primogeniture.   We are not  concerned  with  that aspect of the matter but only with ,lie question whether the alienation  in favour of the plaintiff’s father  was  valid, and  we think on the construction of the various wat  hukums that  it  was not.  We agree with the full  bench  that  the Bombay  Hereditary Offices Act (watan Act) did not apply  to the Kolhapur State so as to override the specific directions of the wat hukums which had legal and binding force in  that State.   It  may be observed that notification  of  3-3-1888 whereby certain laws in force in what was then British India were applied in toto with modifications but the Watan Act is applied  only  "to go according to the  obvious  meaning  or import".   What  was perhaps intended was that  where  there were no specific hukums the general principles of the  Watan Act may be applicable.  At any rate in this case as there is a  specific prohibition from alienating  patel-ki-watan  and other  similar inams we need not rely on the  provisions  of the Bombay Act. On  the other question namely whether the suit is barred  by limitation, we are of the view that it is not.  The facts as narrated will show that in one case possession was given  to the plaintiff’s widow after the mortgage was redeemed.   But the collector under 795 a misapprehension effected a forfeiture and took  possession but subsequently perhaps realising the mistake, released the property  but  handed over possession to  the  wrong  person namely  the defendant.  It is only after that a right  would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on the ground of his title.  There is no  validity  in  the  submission  made  on  behalf  of  the defendant that the plaintiff was out of possession from 1928 till  the date of suit-April 17, 1953.  Article 142  has  no application because the suit is not against the defendant on the ground that he has been dispossessed by him but  against a  person who is not entitled to possession.  The  defendant did  not dispossess the plaintiff, and as such art.  142  is not applicable at all.  In any case, it is not necessary  to co  into this question in any great detail, because  in  the view  we have taken upholding the defendant’s plea that  the

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said alienation is void the plaintiff’s suit must fail. The  appeal is accordingly allowed, the judgment and  decree of  the High Court, set aside and that of the  trial  court, restored with costs here and below. Y.P.                             Appeal allowed. 796