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PETITIONER: TIKAIT HARGOBIND PRASAD SINGH

       Vs.

RESPONDENT: SRIMATYA PHALDANI KUMARI.

DATE OF JUDGMENT: 29/11/1951

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND BOSE, VIVIAN

CITATION:  1952 AIR   38            1952 SCR  153

ACT:     Ghatwali tenures--Birbhum  ghatwals--Succession--Widow’s right  to succeed in preference to nearest male agnate  when family  is  joint --Custom--Hindu  law--Regulation  XXIX  of 1814.

HEADNOTE:     Held  by the Full Court--Amongst the  Birbhum  ghatwals, when  the holder of a ghatwali dies leaving a widow  but  no direct  lineal descendants, the widow succeeds  in   prefer- ence  to the nearest male agnate, even though the     family may be a joint family.    Per  MAHAJAN and Bose JJ.--The Mitakshara rule  that  the property  inherited by a person from his immediate  paternal ancestors  becomes  ancestral in his hands,  and  his  sons, grandsons  and great-grandsons acquire a right in it at  the moment of their birth has no application to Birbhum ghatwali tenures.     The  word  "descendants" is used in Regulation  XXIX  of 1814  loosely  in  the sense of "heirs" and  does  not  mean lineal descendants.     FAZL  ALI  J.--Custom and usage  are  important  factors governing succession to ghatwali property, and while in some cases custom may develop on the lines of Hind  law  relating to  succession  0wing  to repeated instances  of  tacit  and unquestioned application of the law, in other cases  succes- sion  to ghatwali property may be governed not  entirely  by Hindu law but by such law as modified in certain respects by usage and custom.     Fulbati  Kumari  v. Maheswari Prasad (A.I.R.  1923  Pat. 453) distinguished.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal No. 87  of 1950.  Appeal from the Judgment and Decree dated 8th  Febru- ary, 1949, of the High Court of Judicature at Patna (Manohar Lall  and  Mahabir  Prasad JJ .) in Appeal No.  38  of  1946 arising out of decree dated the 18th December, 1945, of  the Subordinate Judge of Deoghar in Title Suit No. 1 of 1939.

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B.C. Dey (S.C. Ghose, with him) for the appellant.     M.C. Setalvad (Kanhaiyaji, with him) for the respondent. 154     1951.  November 29. The Judgment of Mehr Chand   Mahajan and Vivian Bose JJ.  was  delivered  by Mahajan J. Fazl  Ali J. delivered a separate judgment.     MAHAJAN J. --The question involved in the appeal relates to the right of succession to six Birbhum ghatwalis governed by  Regulation  XXIX of 1814, annexed to Gaddi  Pathrol  and lying  within  Tappasarath  in the  Santhal  Parganas.   the genealogy  of  the contestants appears  from  the  following pedigree table:  ....              Digbijoy Singh                     I Gurohari  SinghKanhai Singh          Bhairo  Singh    Balram Singh (Ghatwal)                                I    I                                 Pratar Singh    I        I              I               I    I     Banwari Singh   Pitambar      Katku Singh Bharat Singh             (Died (Ghatwal)                issueless)    I Kharagdhari Singh (Ghatwal)    I Ram Chandra Singh (Ghatwal)   I                           I Brijbehari Singh         Sarju Prasad Singh (Ghatwal)                (Original plaintiff)    I                           I Krishna Prasad Singh     Hargobind Prasad Singh (Ghatwal)                (Substituted plaintiff)     I                           I Kali Prasad Singh          Durga Prasad    (Ghatwal)               ( Died issueless)       I Phaldani Kumari (Defendant)     Tikait Kali Prasad Singh, the last gaddidar of  Pathrol, died  in the year 1935.  He belonged to  the  Baisi-Chaurasi clan. On the 29th November, 1935, the 155 Commissioner of Bhagalpur Division recognized Smt.  Phaldani Kumari as the next ghatwal and entitled to be maintained  in possession  of  the ghatwali estate on  the  30th  November, 1936, sarju Prasad Singh brought the suit out of which  this appeal arises in forma pauperis in the  court of the  Subor- dinate Judge  of Deoghar for possession of the ghatwalis. In paragraphs 7, 8 and 10 of the plaint it was alleged that the ghatwalis  in suit were joint family property and  were  im- partible by custom;  that succession to them was governed by the  law  of  lineal primogeniture;  that  the  females  and persons claiming  through them were altogether excluded from inheritance.   It  was  claimed that the  late  Tikait  Kali Prasad  Singh  and  the plaintiff were members  of  a  joint Mitakshara family and that he alone as the eldest member  of the  eldest surviving line of the descendants of the  common ancestor was entitled to succeed to them.     The defendant in her written statement denied this claim and contended that Birbhum ghatwalis governed by  Regulation XXIX  of 1814 are not and cannot be in the nature  of  joint family  property but that the person who succeeds and  holds the  tenure  as ghatwal is the sole  proprietor  and   owner

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thereof.   It  was  pleaded that the  properties  being  the exclusive  and  separate properties of the ghatwal  for  the time  being, the defendant, his widow, was entitled to  suc- ceed to them in preference to the plaintiff under the Mitak- shara  school  of Hindu law which  admittedly  governed  the family  of the parties.  The pleadings of the  parties  gave rise to the following issues :--     1.   Whether succession to the ghatwalis in question  is governed by the customs alleged in para 7 of the plaint ?     2.   Did  the ghatwalis in question  form  joint  family property  of Kali Prasad Singh, his ancestors in the  direct line and of Sarju Prasad Singh and the plaintiff?     3.   Did  Kali Prasad die in a state of  jointness  with Sarju Prasad Singh ? 156 4.  Are the ghatwals the sole proprietors of the   ghatwalis for the time  being as alleged by the defendant ?       5. Whether the plaintiff or the defendant is  entitled to succeed to the properties in suit ?      Issues  2,  3 and 4 were found by the  trial  Judge  in favour  of the plaintiff and against the defendant.  It  was held  that  Kali Prasad Singh died in a state  of  jointness with  Sarju Prasad Singh and that the ghatwalis in  question were their joint family property and that the plaintiff  the eldest  surviving copartner in the eldest line  of  Digbijoy Singh’s  descendants  was  entitled to succeed  to  them  in preference  to the widow. It was common ground  between  the parties  that  in case the properties were held  to  be  the separate  properties  of Kali Prasad Singh,  the  widow  was entitled to succeed to them.  As a result of these  findings the  plaintiff’s suit was decreed with costs. On  appeal  by the  widow to the High Court, this. decree was reversed  and the plaintiff’s suit was dismissed with costs.  It was  held that  the character of the ghatwali tenures in question  was such  that they could not be regarded as joint  property  of the  plaintiff and the last ghatwal and that being  so,  the defendant was entitled to succeed to them.      The  learned counsel for the appellant based his  argu- ments  on the thesis that the ghatwali estates  in  question were  of the same nature and character as joint  family  im- partible estates governed by the Mitakshara law and that the rule  of  survive  applicable  to  such  estates  was   also applicable  to them.  It was contended that the  High  Court was in error in holding that the suit properties exclusively belonged  to  Kali Prasad Singh or that there  was  anything peculiar  in  these tenures which differentiated  them  from other  ghatwalis in the Santhai Pargangs or from  other  im- partible  estates known to Hindu law and  which  peculiarity incapacitated them from being included within the definition of coparcenary property.      The  plea  that females were by  custom  excluded  from inheriting ghatwali  tenures in Birbhum was 157 dropped  in the two courts below and was’ not raised  before us;  so also the point of custom set out in para. 7  of  the plaint and covered by issue 1 was not seriously urged.     The  learned  Attorney-General,  while  conceding   that succession  to these tenures was governed by the  Mitakshara law,  contended that in no sense could they be  regarded  as joint  family property and that their peculiar  characteris- tics  precluded  the acquisition of any right  by  birth  by members  of a joint Hindu family in them. He also  urged  in the  alternative that the widow was ’entitled to succeed  to them,  assuming them to be joint family property under  cus- tom.

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   The  courts below have given elaborate judgments in  the case and reference has been made to a large number of decid- ed cases. In our opinion, the main point that needs decision is  whether the suit ghatwalis were to be regarded as  joint family or separate properties of the deceased.  For a  solu- tion  of this problem it is necessary to refer first to  the nature  and main incidents of a ghatwali tenure. Its  origin is now well known. In Moghul times grants of land were  made to  selected  persons who were appointed  guardians  of  the mountain passes for protecting the countryside against  hill invaders  and  the  office held by these  persons  bore  the designation "ghatwal". These grants were made in some  cases directly  by  the  ruling power and in other  cases  by  the zamindar responsible by custom for the maintenance of  secu- rity  and order within the estate as consideration  for  the performance  of the duties. By efflux of time  these  grants assumed the form of an actual estate in land, heritable  and perpetual, but conditional upon services certain or services to be demanded.     Reference  to  some  of the decided  cases  relating  to Birbhum  ghatwali tenures will sufficiently  indicate  their nature and character.     In Harlal Singh v. Joravan Singh(1), it was held that  a ghatwali estate in Birbhum was not divisible (1) 6 Select. Rep.204.      21 158 on  the  death of a ghatwal, amongst his  heirs  but  should devolve entirely on the eldest son or the next ghatwal.   It was said that ghatwali lands are grants for particular  pur- poses,  especially of police, and to divide them into  small portions amongst the heirs of the ghatwals would defeat  the very ends for which the grants were made.     In Satrukchunder Dey v. Bhagat Bharutchunder Singh(1), a decision  of the year 1853, it was stated that the  ghatwali tenures in Birbhum were not private property of the ghatwals but lands assigned by the State in remuneration for specific police  services  and were not alienable or  attachable  for personal debts.     Mst. Kustooree Koomaree v. Monohur Deo(2), Loch J.  took the  view  that succession to ghatwalis is regulated  by  no rule  of  kulachar or family custom, nor by  the  Mitakshara law, but solely by the nature of the ghatwali tenure,  which descends  undivided to the party who succeeds to  and  holds the tenure as ghatwal and that a female is not incapable  of holding a ghatwali tenure.  It was said that-     "the  party  who  succeeds to and holds  the  tenure  as ghatwal  must be, and has always been, looked upon  as  sole proprietor thereof, and, therefore, the other members of the family cannot claim to be coparceners and entitled to  share in  the  profits of the property, though they  may,  by  the permission  and  goodwill  of the  incumbent,  derive  their support,  either from some portion of the property which  he may have assigned to them, or directly from himself."     In  Binode  Ram Sein v. Deputy Commissioner  of  Santhai Pargangs(3),   (on  review 7 W.R. 178) it was held that  the rents  of a ghatwali tenure are not liable for the debts  of the  former deceased holder of the tenure.  The  reason  for the decision was that the tenure was held for the purpose of public  services  and  those who perform  the  services  are entitled to the whole of the remuneration.   (1) 9 S.D.R. 900.                 (3) 6 W.R. 129.   (2) 1864 W.R. (Gap Nos.) 39. 159     In   Tekait  Durga  Pershad  Singh  v.  Teketnee   Durga

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Kuari(1), it was urged that a female’s right to inherit  was inconsistent  with a ghatwali estate.  This  contention  was negatived  and  reference  was made to the  fact  that  many ghatwali  estates were held by females and it  was  observed that  it was difficult to hold that a ghatwali  estate  must necessarily  be held by male heirs. This case  further  sug- gests that in a case where it is held proved that the family was  joint, succession to Birbhum ghatwali may be  regulated by the same rule of Hindu law as is applicable to the  devo- lution of impartible estates.     In Ram Narain Singh v. Ramoon Paurey(2), another Birbhum ghatwali  case,  it was held that the ghatwal for  the  time being  was  only entitled to interest  on  the  compensation money  obtained for compulsory acquisition of a part of  the ghatwali interest but that he could not spend the corpus  of it which had to devolve on the next heir intact.     So  far as Birbhum ghatwalis are concerned, it  is  only the above mentioned cases to which our attention was drawn.     Reference  in this connection is also necessary  to  the terms  of Regulation XXIX of 1814. Sections I and II of  the Regulation  which are material to this enquiry are in  these terms :--     I. Whereas the lands held by the class of persons denom- inated  Ghautwauls,  in the district of  Beerbhoom,  form  a peculiar  tenure  to which the provisions  of  the  existing Regulations are not expressly applicable; and whereas  every ground  exists  to  believe that, according  to  the  former usages  and constitution of the country, this class of  per- sons  are  entitled to hold their  lands,  generation  after generation,  in  perpetuity,  subject  nevertheless  to  the payment of a fixed  and established rent to the zemindar  of Beerbhoom, and to the performance of certain duties for  the maintenance  of the public peace and support of the  police; and whereas the rents payable by those tenants have been (1) 20 W.R. 154.              (2) 23 W.R. 376. 160 recently  adjusted, after a full and minute inquiry made  by the  proper officers in the revenue department; and  whereas it  is essential to give stability to the  arrangements  now established  among the Ghautwauls, the following rules  have been  adopted, to be in force from the period of their  pro- mulgation in the district of Beerbhoom.     II. A settlement having lately been made on the part  of the Government with the Ghautwauls in the district of Beerb- hoom, it is hereby declared that they and their  descendants in  perpetuity  shall  be maintained in  possession  of  the lands, so long as they shall respectively pay the revenue at present assessed upon them,...."     The result of the decided cases and of the provisions of the  regulation  is that the grantee of the tenure  and  his descendants have to be maintained in possession of the  land from  generation to generation conditional upon services  to be rendered. The tenure is however liable to forfeiture  for misconduct or misbehavior of the ghatwal for the time being. The  succession  to it is determined by the rule  of  lineal primogeniture. It is neither partible nor alienable  (except in  exceptional cases with the consent of the government  or the zamindar, as the case may be). These two characteristics are inherent in its very nature and have not been annexed to it  by  any rule of custom. The estate in the hands  of  the last  holder is not liable either to attachment or  sale  in execution  of a decree against him; nor is it liable in  the hands  of his successor for payment of his debts.  When  the succession  opens out, the heir determined according to  law has  to  execute  a  muchilika  in  favour  of  the  grantor

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guaranteeing  the performance of the duties annexed  to  the office  and  stipulating  that  in  case  of  misconduct  or misbehaviour or non-fulfilment of the obligations  attaching to the office, as to which the tenure is in the nature of  a remuneration, government will have the right to resume it.     In view of these peculiar characteristics of a  ghatwali tenure in Birbhum which are so different from other  inheri- tances, we find it difficult to apply to it the 161 law  of  Mitakshara  to the full extent. The  essence  of  a coparcenary under the Mitakshara law is unity of  ownership. As observed in Katama Natchir v. The  Raja of  Sivaganga(1), there  has to be community of interest and unity of  posses- sion  between all the, members of the family, and  upon  the death of any one of them the others may well take by  survi- vorship  that in which they had during the deceased’s  life- time  a common interest and a common possession.  The  inci- dents  attaching to a Birbhum ghatwali tenure rule  out  the existence  of any notion of community of interest and  unity of  possession of the members of the family with the  holder for  the  time being.  He is entitled to  be  maintained  in exclusive  possession of the ghatwali lands and the  devolu- tion of the property is to him in the status of a sole heir. This view finds support from the observations of Lord  Fitz- gerald  in  Kali  Pershad v. Anand Roy(2),  though  made  in respect  of  a zamindari ghatwali, yet also  appositely  ap- plicable to a government ghatwali.  His Lordship observed as follows :-     "Where, however, the Mitakshara governs, each son  imme- diately  on his birth takes a share equal to his  father  in the ancestral immoveable estate. Having regard to the origin and nature of ghatwali tenures and their purposes and  inci- dents  as established by decided cases, most of  which  have been referred to in the course of the argument, it is admit- ted that such a tenure is in some particulars distinct from, and  cannot  be governed by, either the general  objects  of Hindu  inheritance as above stated, or by the  before-quoted rule of the Mitakshara.      It  is  admitted that a ghatwali estate  is  impartable --that is to say, not subject to partition; that the  eldest son succeeds to the whole to the exclusion of his  brothers. These are propositions that seem to exclude the  application of  the Mitakshara rule that the sons on birth each take  an equal estate with the father and are entitled to partition."      Similar  opinion was expressed in  Chhalraclhari  Singh v. Saraswati Kumari(3), by a Bench of the    (1) (1861-3) 9 M.I.A. 543.           (3) (1895) I.L.R. 22 Cal. 156.    (2) (1888) I.L.R. 15 Cal. 471. 162 Calcutta  High  Court.  The following passage  from  that  a decision may be quoted with advantage :-    "The  learned pleader for the appellant has however  con- tended  before  us ,that, although this ghatwali  tenure  is impartible, yet according to the decision of their Lordships of  the Privy Council in Chintaman Singh v.  Nowlukho  Koon- wari(1),  it is not necessarily separate property, and  that as their Lordships observe ’whether the general status of  a Hindu family be joint or undivided, property which is  joint will  follow  one  and property which   is   separate   will follow another course of succession.’ The decision  referred to  is no doubt an authority for the proposition that  there may  be impartible joint family property, such as a  raj  or other estate similar to a raj, but whether such property  is to  be regarded as joint or separate would appear to  depend

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generally  upon the character of the property at its  incep- tion,  such  as the nature of the grant, etc.  creating  it. Having regard however to the view we have already  expressed as  to the status of the family in the present case, and  as to the ghatwali tenure having been the exclusive property of Ananta Narain, we think it is unnecessary to determine  what was originally the character of this tenure, although, if we were  called  upon  to decide the  question,  we  should  be disposed to say, with reference to the peculiar character of these tenures as described in Regulation XXIX of 1814,  that they  were  intended  to be the exclusive  property  of  the ghatwalforthe  time being, and not joint family property  in the proper sense of the   In Raja Durga Prashad Singh v. Tribeni Singh(2), again  it was said as follows :-   "It was certainly an advantage to the whole family  that one of their members should hold the office and the  tenure. He could put other members of the family into minor  offices and grant them subordinate interests commonly called  jotes, and  he could and would generally provide for the family  in the manner (1) 13 W.R. 21.               (2) (1918) 45 I.A. 251. 163 expected of its head. But this is a long way off making  him a trustee for the family or  treating the ghatwali estate as possessed  by  the family and reducing the ghatwali  to  the position  of  karta or managing head of  the  family.  Their Lordships do not find that the incidents of ghatwali  tenure are such as to give the family any rights over the  property while  it  is  in the hands of the ghatwal,  and  they  find themselves upon this point in full agreement with the courts in India."     In Narayan Singh v. Niranjan Chakravarti(1), Lord Sumner made an exhaustive review of the decided cases and  examined the  whole  position of ghatwali tenures generally  and  ob- served  that  where the tenure is hereditary,  a  recognized right  to be appointed ghatwal takes the place of  a  formal appointment  and a recognized right in the superior to  dis- miss  the  ghatwal if he is no longer able  and  willing  to render  the service required by his tenure, and  to  appoint another  to  the office and the tenure of  the  lands,  then readily suffices to maintain in perpetuity the incidents  of the tenure.     In  these circumstances it is not possible to hold  that the  Mitakshara  rule that when a person  inherits  property from any one of his three immediate paternal ancestors,  his sons,  grandsons and great-grandsons acquire an interest  in it  by birth can have any application to the case  of  these grants  which  are in the nature of a remuneration  for  the performance  of certain services by the holder of  that  of- fice.  A ghatwali has to be regarded as something  connected with  an office and as observed by Lord Sumner in the  above mentioned case, the office cannot except by special  custom, grant  or  other arrangement, either run with  lands  or  be served from them.  In other words, just as primogeniture and impartibility are handmaids, similarly the ghatwal’s  office and  the ghatwali tenure are two inseparables and cannot  be lodged in separate compartments. If the office cannot be  in the  nature of coparcenary property, the tenure must  follow the same way. Thus it is not easy to conceive that an inter- est (1) (1924) 51 I.A. 37. 164   can  be  acquired  at the birth of a  member  of  a  joint family in a tenure which is annexed to an office, even if it

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has  descended from three immediate paternal ancestors.   In certain eventualities the selection of the next heir depends on the choice of the ruling authority and in case of miscon- duct  or misbehaviour of the holder for the time  being  the ruling  power  can  not only dismiss the  ghatwal  but  even resume  the  tenure.  This is a feature  which  places  this heritable  property  in a class by itself  as  distinguished from other inheritances governed by the Mitakshara law.      The  view that in Birbhum, ghatwali tenures are in  the nature of separate property or the exclusive property of the ghatwal finds support from the fact that in many  instances, whenever  succession has opened out in respect of  them,  it has  been  determined according to the Mitakshara  rule  ap- plicable to the devolution of separate property irrespective of  the circumstance whether the deceased died in  joint  or separate  status  with the other members  of   the   family. Thirteen  instances  of such practice in  the  past  amongst members  of the Bais-Chaurasi clan were proved in the  case, in all of which the widow succeeded in preference to a  male heir.   The learned trial Judge held that in some  of  these instances the female succeeded because the agnate nearest in line  was separate from her husband; as regards  the  others though he reached the conclusion that the evidence of  sepa- ration  was weak, he thought that these did not establish  a custom  superseding  in cases of joint family  property  the rule  of  survivorship.  The High Court was of  a  different opinion.  It rightly remarked that while numerous  instances of  female succession to the estates held by  Baisi-Chaurasi gaddidar’s  had  been  proved, not a single  instance  of  a female having been excluded from the appointment of a  ghat- wal on the ground of an agnate being entitled to come in  as a  coparcener  of the last holder by survivorship  had  been proved,  and that in these circumstances there was force  in the  contention  that even if the tenures in  question  were ancestral joint family property, succession thereto was 165 governed  by  the  Mitakshara rule  applicable  to  separate property.     For the reasons given above we held that the  Mitakshara rule that the property inherited by a person from his  imme- diate paternal ancestors becomes ancestral in his hands  and in  it  his sons, grandsons and  great-grandsons  acquire  a right at the moment of the birth has no apposite application to Birbhum ghatwali tenures.     The learned counsel for the appellant in support of  his contention placed reliance on a number of decisions of their Lordships of the Privy Council concerning impartible estates governed by the Mitakshara law, wherein it was held that the succession  to an impartible estate which is  the  ancestral property of a joint Hindu family governed by the  Mitakshara law  is governed by the rule of survivorship subject to  the custom  of  impartibility; the eldest member of  the  senior branch of the family succeeding in preference to the  direct lineal  senior  descendants of the common ancestor,  if  the latter  is more remote in degree.  Particular reference  was made  to  the  remarks  of Turner  L..I.  in  the  Sivaganga case(1), and to the observations in Baijnath Prasad Singh v. Tej Bali Singh (2) and in the case of Shiba Prasad Singh  v. Rani Prayag Kumari Debi(3). Therein it was said that 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 head, (3) the right of  mainte- nance, 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

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second and third are incompatible with the custom of impart- ibility.  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  survivor- ship  is not inconsistent with the custom of  impartibility. This right  (1) (1861-3) 9 M.I.A. 543.                  (3) A.I.R. 1932 P.C. 216.  (2) (1921) I.L.R. 43 All. 228.          22 166 therefore  still  remains  and to  this  extent  the  estate still  retain.s its character of joint family  property  and its  devolution  is governed by the general  Mitakshara  law applicable to such property and that though the other rights which a coparcener acquires by birth in joint family proper- ty  no longer exist, the birthright of the senior member  to take by survivorship still remains.    In  our view, these observations have no application  to the tenures in suit. As already indicated, it is not  possi- ble to concede in their case that a member of a joint family governed  by the Mitakshara law acquires any right by  birth in them.  The general law of Mitakshara creating that  right seems  to  have been superseded in their case  not  only  by peculiarities inherent in the nature of these tenures but by encroachments of custom on it. Moreover, it appears that the remarks relied upon were made in cases where the  impartible estates were admittedly joint family property or the  grants were  of  such a character that they are  intended  for  the benefit of the family as such. The ratio of these  decisions was  that even though certain incidents attaching  to  joint family  property may cease to exist by custom,  some  others which are not affected by custom may survive. This reasoning can have no application to property which at no stage  what- ever  could be clothed or was clothed with any of the  inci- dents of coparcenary property.     The learned counsel for the appellant placed  considera- ble  reliance on the observations of Sir Dawson Miller  C.J. in   Fulbati  Kumari v.  Maheshwari Prasad(1).  The  learned Chief  Justice therein dissented from the View urged  before him  that  all ghatwali property is the  exclusive  separate property  of the holder for the time being and that  it  de- volves  according to the rules affecting  separate  property subject  again  to  the circumstance  of  impartibility.  He observed that the fact that a raj is impartible does not  in a  case governed by the Mitakshara law make it  separate  or self-acquired property, that it may be self-acquired   (1) A. I. R. 1923 Pat. 453. 167 property  or  it may be the property of  a  joint  undivided family and that in the latter case succession will be  regu- lated according to the rule of survivorship. In our opinion, these observations have no application to the case of  Birb- hum  ghatwalis because in express terms these were  excluded from consideration in that case. In the judgment it was said :-     "In our opinion, the estate in the present case is in no way  comparable to the Birbhum ghatwali tenures and  Regula- tion XXIX of 1814 does not apply to it."     The  decision  in the case proceeded on  the  assumption that  Birbhum  ghatwalis stood apart  from  other  ghatwalis which  stood on the same footing as impartible estates  gov- erned by Mitakshara law.     The learned Attorney-General challenged the  correctness

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of  these decisions and contended that the decisions of  the Privy Council on this subject were not uniform.  He drew our attention  to  the  observations  made  in  Sartaj   Kuari’s case(1),  in  the Second Pittapur case(2), and  in  Tipperah case(3).   There may be a seeming conflict between the  view expressed  in  those  decisions and the  view  expressed  in Baijnath  Prasad  Singh v. Tej Bali Singh(4), and  in  Shiba Prasad Singh v. Rani Prayag Kurnari Debi(5).  It seems to us however  that  these latter cases have settled the  law  ap- plicable  to  joint family impartible  estates  governed  by Mitakshara law and it is rather late in the day  to reopen a controversy  settled by a series of decisions of  the  Privy Council.     The  contention that on the death of the last  holder  a ghatwali  tenure in Birbhum reverts to the grantor and  that notionally there is a resumption of it in favour of  govern- ment  and a re-grant to the next heir does not  impress  us. On  the  express terms of the regulation these  tenures  are heritable  from generation to generation and the  theory  of resumption and re-grant is inconsistent with their heritable character.  Inheritance can never remain in abeyance and  on the  (1)  (1887-8)  15 LA. 51.            (4) (1921)  I.L.R.  43 All. 228.  (2)  (1918) 45 I.A. 148.             (5) A.I.R.  1932  P.C. 216.  (3) (1867-9) 12 M.I.A. 523. 168 death of the last holder the estate immediately vests in the next  heir.  The  circumstance that the  government  may  in certain  events  have the power to dismiss a ghatwal  or  to forfeit  the  tenure cannot lead to the  inference  that  it terminates and is re-granted at every death.     The  argument of the learned counsel for  the  appellant that a widow not being a descendant of the grantee under the terms of Regulation XXIX of 1814, is not entitled to inherit to  Birbhum ghatwali tenures also does not impress  us.  The regulation  does not enact any rule of succession  to  these tenures,  and the devolution with respect to them is  admit- tedly  determined by personal law or custom. The  expression "descendants" used in the regulation cannot deprive females, like a widow or a mother, from taking the inheritance  where they  are legal heirs under Mitakshara law or under  custom. Females  have  invariably been allowed to succeed  to  these tenures  in the past. The appellant’s counsel conceded  that if  the  property was the separate property of  Kali  Prasad Singh,  the  defendant was entitled to inherit  to  it.   We think  that  the expression "descendants" has  been  loosely employed  in  the regulation for the word "heirs".  On  this point  we are in agreement with the observations made  by  a Bench  of the Calcutta High  Court  in   Chhatradhari  Singh v. Saraswyati Kumari(1).     It  may further be pointed out that even if the  conten- tion  of  the  learned counsel for the appellant  is  to  be accepted, by no process could the trial court have passed  a decree  in favour of the plaintiff in respect of items 4,  5 and  6  of the schedule Admittedly these  were  acquired  by Krishna  Prasad  Singh,  father of Kali Prasad  Singh  by  a decree of court passed in his favour against his  collateral Katku Singh who also claimed these properties as an heir  to the  last male owner Banwari Singh (vide Exhibit  4).  These pro  perties  having devolved upon Krishna Prasad  Singh  by obstructed heritage, were in the nature of separate property in his hands and could not fall within the (1) (1895) I.L.R. 22 Cal. 156.

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169 definition of ancestral property given in Mitakshara.  Sarju Prasad  Singh, uncle of Krishna Prasad Singh, could  acquire no  right or roterest in these properties by birth  enabling him  to  claim them by survivorship. Kali Prasad  Singh  who inherited  them on the death of his father got them  as  his separate  property  as he had no son who could  acquire  any interest in them by birth. With regard to this property  the widow was certainly an heir after the death of her  husband’ and  plaintiff could have no claim whatsoever in respect  of these items of the schedule.  This aspect of the case  seems to have been lost sight of in the two courts below.     The result, therefore, is that this appeal fails and  is dismissed with costs.     FAZL  ALI J.--While agreeing generally with  my  learned brother  Mahajan J., I wish to say a few words  to  indicate the main ground on which I would dismiss this appeal.     There  are a number of authoritative  decisions  dealing with the special features of ghatwali property, one of which is  said  to be that if the ghatwal is a member of  a  joint family,  the family has no right over the property while  it is  in  his  hands.  [See Durga  Prashad  Singh  v.  Tribeni Singh(1)]. The logical corollary from this characteristic of ghatwali  property would seem to be that it is more  in  the nature  of exclusive property of the ghatwal than  of  joint family property. Nevertheless, in some cases, succession  to such  property  has been determined with  reference  to  the rules  of  Hindu  law regarding joint  property,  where  the ghatwal was found to be a member of the joint family.  As at present  advised I am not prepared to say that  those  cases were  wrongly decided, but I think it will not be  incorrect to  say  that custom and usage are  also  important  factors governing  succession to ghatwali property, and it  is  con- ceivable that while in some cases custom may develop on  the lines of Hindu law relating to succession owing to  repeated instances of (1) (1918) 45 I.A. 251. 170 tacit and unquestioned application of the law, in other  i.a cases  succession to ghatwali property may be  governed  not entirely by Hindu law but by such law as modified in certain respects by usage and custom.      The  question with which we are concerned in this  case is whether the widow of a deceased ghatwal, who was a member of  a joint family and died leaving no issue or direct  male descendants, can succeed to the ghatWali property in prefer- ence to the nearest male agnate.      On a reference to the plaint, it would appear that what the  plaintiff  contended  was that the clan  to  which  the parties  belong  was governed by the  Mitakshara  school  of Hindu  law "subject to their clan custom", one of which  was said  to be that females, viz., widow, daughter  or  mother, and  persons claiming through females could not and did  not succeed  on  the death of the ghatwal. This  allegation  was controverted  in the written statement, and it  was  claimed that the family was governed by the Mitakshara system of law and "there was no clan custom governing the estate in suit." Upon these pleadings, one of the issues framed by the  trial court was "whether succession to the ghatwali is governed by custom,  as alleged in paragraph 7 of the plaint."   In  the course  of  the  trial, the plaintiff tried  to  prove  that females were always excluded as alleged by him.  In this, he did  not succeed.  The courts below however found  that  the question which directly affected the present case was a much narrower  one,  namely, whether females could  succeed  even

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when  the family was joint. So far as this question is  con- cerned, both the courts below are agreed that females cannot be excluded if the property is the separate property of  the ghatwal. But the question which still remains to be  decided is what the true legal position would be if the property  is deemed  to be joint property. It appears that  evidence  was adduced at the trial to show that in 13 instances  affecting the Baisi-Chaurasi clan to whom the Birbhum ghatwals  admit- tedly  belong,  the widow of the last ghatwal  succeeded  in preference to a male agnate. 171 The  trial  judge however found that in four  of  these  in- stances  the nearest agnate who claimed the property     was separate  from the ghatwal or his widow, but, in  the  other instances,  there  was no evidence of  separation,  or  "the evidence  was  weak", which, I take it, is  another  way  of saying that it could not be safely relied on. It seems to me that  these  instances lend some support to  the  view  that Hindu law has been modified’ by custom, so far as the  Birb- hum  ghatwalis are concerned,  and that among  the  ghatwals belonging to this class, where the last ghatwal dies leaving a widow but no issue, then she succeeds in preference to the nearest  male agnate, even though the family may  be  joint. The  Birbhum ghatwals form a class by themselves,  and  they are also subject to a special Regulation-Regulation XXIX  of 1814.   That Regulation states among other things that  this class  of  ghatwals shall be entitled to hold  the  ghatwali property generation after generation and that they and their descendants in perpetuity shall be maintained in  possession of  such property. Strictly speaking, neither a widow nor  a distant agnate will come within the terms of the Regulation, not  being a descendant of the last ghatwal,  and  therefore custom and usage cannot be ruled out in determining  succes- sion  in  such cases.  The strongest case which  was  relied upon  by the appellant is Fulbati Kumari v. Maheshwari  Pra- sad(1)  where it was laid down that on the death of a  ghat- wal,  who  was  a member of a  joint  family,  the  ghatwali property  would devolve according to the rules of Hindu  law affecting  joint  property, that iS to say, by the  rule  of survivorship.   But,  in this case, Dawson Miller  C.J.  who delivered the judgment, took care to observe that the  ghat- wali  estate  which was the subject of  litigation  was  not comparable  to  the Birbhum ghatwali ’tenures,  which  means that the rule laid down in that case may not apply to  Birb- hum ghatwals.     In  the present case, the Commissioner, who  represented the  Government  and who had special means  of  knowing  the usages affecting the Birbhurn ghatwals. (1) A.I.R. 1923 Pat. 453. 172      appointed the respondent as the ghatwal, stating   that he  was  "following  a  well-established precedent  in   the case  of  these  ghatwals by recognizing the  widow  in  the absence of a direct heir." In my opinion, whatever  evidence there is in this case supports the Commissioner’s view,  and there  is  hardly any cogent evidence to rebut  it.  In  the circumstances,  I  agree that this appeal ought to  be  dis- missed with costs.                               Appeal dismissed.     Agent for the appellant: P.K. Chatterjee.     Agent for the respondent: S.P. Varma. ADAMJI UMAR DALAL       v. THE STATE OF BOMBAY @

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     November 26, 1951.