ANNAGOUDA NATHGOUDA Vs. COURT OF WARDS SATARA

JUDGEMENT

(1.) THIS appeal is directed against a judgment and decree of a Division Bench of the Bombay High Court dated the 14th of March, 1945, which affirmed, on appeal, the decision of the First Class Subordinate Judge, Satara, passed in Civil Suit No 890 of 1938. The appellants before us filed the suit as plaintiffs in the original court, for establishment of their title to the property in dispute which is known as Chikurde Estate, on the allegation that they were, under the Hindu Law, the nearest heirs of one Bhimabai, who was admittedly the last holder of the estate. The suit was brought initially against one defendant, namely, the Court of Wards, Satara, and admittedly the Court of Wards took possession of the property of Bhimabai, while she was alive, and is continuing in possession of the same even now after her death. Later on, defendants 2, 3 and 4, who put forward rival claims of succession to the estate, were allowed to intervene in the suit and were added as parties defendants. The Court of Wards, which now figures as defendant No. 1, took up, all through, a neutral attitude and expressed its willingness to hand over the estate to any person who would be declared to be rightfully entitled to it by the Court. The Courts below have negatived the claims of defendants 2 and 3 and they have not come up to press. their claims in the appeal before us. The two rival claimants, who are now on the scene, are the plaintiffs on one side and defendant No. 4 on the other, and the whole controversy in this appeal centers round the point as to who amongst them have the preferential right to succeed to the disputed estate after the death of Bhimabai. To appreciate the material facts of the case and the contentions that have been raised by the parties, it will be convenient to refer to the following genealogy which is not disputed by either side. <IMG>JUDGEMENT_60_AIR(SC)_1952Image1.jpg</IMG>

(2.) IT is the case of both the parties that Vithalrao, whose name appears at the top of the pedigree table, and who was the common ancestor of the parties, held the disputed property as watan property appertaining to the hereditary office of Deshmukhi service. Vithalrao was the recipient of a Sanad dated 28th November, 1892, under what was called the Gordon Settlement, the object of which was to commute services of certain watandars in that part of the country and relieve them from liability to perform the services attached to their office on certain terms and conditions which were agreed upon between the Government on the one hand and the watandars on the other. The terms of the settlement were generally embodied in Sanads and one such Sanad was granted to Vithalrao in 1892. IT is not disputed that after this settlement Vithalrao continued to be watandar as defined by Bombay Act III of 1874, and that the watan in dispute was an impartible estate governed by the rule of primogeniture. In 1896 Vithalrao died and he was succeeded by his eldest son Ganpatrao under the law of primogeniture. Ganpatrao died childless in 1914, leaving behind him his two widows Anandibai and indirabai, of whom the senior widow Anandibais defendant No. 2 in the present suit. Both the two brothers of Ganpatrao, namely, Nilkanthrao and Anandrao had predeceased him. Nilkanthrao left behind him one son named Firangojirao and two daughters, while Anandrao died childless, leaving him surviving his widow Krishnabai, who later on adopted Vithalrao, who is defendant No. 4 in the suit. Ganpatrao had left a will bequeathing all his watan and non-watan properties to Firangojirao and the latter succeeded to the estate both under the will as well as under the law of lineal promogeniture, he being the only male member of the family at that time. Firangojirao died in 1919, leaving Bhimabai, his only daughter, who was a minor at that time. On 23rd September, 1921, the name of Bhimabai was entered in the village records as watandar in place of Firangojirao and in the year following the Court of Wards, Satara, assumed superintendence of Bhimabai's estate. On 11th October, 1923, the Government of Bombay by their Resolution No. A-471 declared the Chikurde Deshmukh watan as lapsed to Government, presumably on the ground that there was no male heir in the watan family after the death of Firangojirao. A new entry was then made in the village register which recorded Bhimabai not as watandar, but as heir of Firangojirao and the lands were described as being converted into ryotvari lands after forfeiture by Government and subjected to full assessment. On 4th of November, 1924, Krishnabai, the widow of Anandrao, adopted defendant No. 4 as a son to her husband. On 27th January, 1932, Bhimabai died unmarried and her estate continued under the management of the Court of Wards. The appellants before us, who are the sister's sons of Firangojirao, brought this suit on 5th of August, 1938, and their case, in substance, is that after the Resolution of the Government passed on 11th of October, 1923, the Chikurde estate ceased to be a watan property and the succession to such estate was governed by the ordinary rules of Hindu Law and not by the provisions of Act V of 1886 which postpone relations claiming through a female to a male member of the watan family. IT was urged that the property being the absolute property of Bhimabai and she having died while still a maiden, the plaintiffs, being the nearest heirs of her father, were entitled to succeed under the general rules of Hindu Law. As said already, the defendant No. 4, who is respondent No. 2 in this appeal, was added as a party-defendant sometime after the suit was filed and the contention raised on his behalf was that by reason of his having been duly adopted. to Anandrao on 4th of November, 1924, he was the nearest heir to the property in suit which was a watan property and prayed that a declaration in his favour might be made by the court. The defendant No. 3 claimed to have been adopted as a son to her husband Ganpatrao by Anandibai, the defendant No. 2, some time in February 1939. <PG>62</PG>

(3.) IT is true that we have got to ascertain who the heirs of the father are at the date when the daughter dies, but the enquiry is for the purpose of finding out who the successor to the estate of the daughter is. This being the subject of the enquiry, the operation of Act 11 of 1029 is excluded by its express terms and for that purpose the Act is to be treated as non-existent. In other words, the stridhan heirs are to be ascertained with reference to the general provisions of the Hindu Law of Inheritance ignoring the statutory heirs who have been introduced by the Act. The fallacy in the line of approach adopted in these cases seems to be that they treat the Inheritance Act of 1929 as amending or altering the Mitakshara Law of succession in all cases and for all purposes, whereas the Act has absolutely no operation when succession to the separate property of a male is not the subject-matter of investigation. The result is that in our opinion the plaintiffs are not the nearest heirs of Bhimabai even assuming that the property was nonwatan and belonged to her absolutely. The appeal will thus stand dismissed. We make no order as to costs in this appeal except that defendant No. 1, the Court of Wards, would have its costs as between attorney and client out of the estate. The order for costs made by the courts below will stand.