ANNASAHEB BAPUSAHEB PATIL VILAS G DALVI NATHAL GHARAGE RAJARAM K POWAR PANDURANG B SARNOBAT Vs. BALWANT ALIAS BALASAHEB BABUSAHEB PATIL AND HEIRS:RAMACHANDRA Y DALVI:RAJARAM A GHARAGE:DINKARRAO K POWAR:K L SARNOBAT

JUDGEMENT

(1.) This batch of appeals raises common question of law, though the High Court of Bombay had decided several appeals by separate judgments. On this account they have been tagged together and were referred to three-Judge Bench. We proposed to dispose them of by common judgment. The facts in Civil Appeal No.32/80 are sufficient to decide the question of law. One Bapu Anna Patil (for short B.A. Patil), father of Anna Saheb, the first appellant/Ist plaintiff and Balwant alias Balasaheb, the first defendant, deceased Ist respondent in Special Civil Suit No.79/67 on the file of Civil Judge (Senior Division), Kolhapur, died on October 31, 1956. Balwant was the eldest male member in the joint family consisting of himself and Anna Saheb. Their sister is Laxmibai, 4th defendant. It is now an admitted fact that all other properties, except two items of the agricultural lands bearing R.S. Nos. 359 and 172/8 situated in the village Rukadi of a total extent of 15 acres and 20 gunthas, attached to the Patel watan, were partitioned by metes and bounds. The watan properties attached to the office of Patel, by rule of primogeniture, became impartible. The Maharashtra Revenue Patels (Abolition of Office) Act, 1962 ((for short 'the Act') came into force on January 1, 1963. The Patel watans, by operation of S.3, stood abolished. Thereafter, Balwant, being eldest member of the family, obtained a re-grant under S. 5 of the Act. The appellants filed the suit for partition and allotment of half share therein. The trial Court decreed the suit and a preliminary decree was made for division of 15 acres and 20 gunthas in equal moieties. In First Appeal No. 162/69 by judgment and decree dated June 28, 1977, the Division Bench of the High court following its earlier decision in Kalgonda Babgonda v. Balgonda Kalgonda, (1976) 78 Bom LR 720, allowed the appeal and set aside the decree. The High Court held that after the re-grant under the Act, the properties became personal property of Balwant and that, therefore, they were not partible.

(2.) Section 2(e) defines 'Patel watan' to mean the office of patel of a village held hereditarily under the existing watan law, together with the tenure of watan property, if any, and the rights, privileges and liabilities attached thereto. 'Existing Watan Law' defined under S.2(d) to mean, in relation to any area, includes any enactment, Ordinance, Rule, Bye law, Regulation, Order, Notification, Vat-Hukum or any instrument, or any custom or usage having the force of law, relating to patel watans, and which is in force in that area immediately before the appointed day. Appointed day is defined under S.2(1)(a) to mean the date of commencement of the Act. 'Representative watandar' is defined under sub-s.(i) to mean a watandar registered or recognised under the existing watan law, as having right to perform the duties of the hereditary office of patel of a village. 'Watandar', defined in (k), means a person having under the existing watan law a hereditary interest in patel watan of a village provided that, where any watan has been entered in a register of record under the existing watan law as held by the whole body of watandars, the whole of such body shall be deemed to be a watandar. 'Watan land' has been defined under S. 2(1)(1) as the land forming part of watan property. 'Watan property' has been defined under S. 2(1) (m) including the movable and immovable property held, acquired or assigned under the existing watan law for providing remuneration for the performance of the duty appertaining to the hereditary office of patel of a village, and includes cash payments made voluntarily by the State Govt. and subject to periodical modification or withdrawal. Section 3 abolishes watans postulating that notwithstanding anything in any usage, custom, settlement, grant, agreement, or sanad, or in any decree or order of a Court, or in the existing watan law, with effect from the appointed day -

(3.) Under sub-sec. (3), the previous sanction of the Collector is mandatory for transfer or partition by metes and bounds of the occupancy of the land regranted under sub-sec. (1) of S.5 The other provisions are not material for the purpose of this case. Hence omitted. By operation of S.3 read with S.5 notwithstanding anything in any usage, custom, settlement, grant, agreement or sanad, or in any decree or order of a Court, or in the existing watan law, with effect from January 1, 1963, not only patel watans have been abolished but also all incidents appertaining to the said watans including the right to hold office and watan property and the liability of the watandar to render service shall be and thereby extinguished. Under sub-sec. (1) of S.5, the lands resumed under S.3 shall be regranted to the watandar of the watan to which it appertained, on payment by or on behalf of the watan to the State Govt. of the occupancy price enumerated therein. Watandar thereupon shall be an occupant for the purpose of the Code and shall be primarily liable to pay land revenue to the State Govt. under the Code. Any alienation or partition of the occupancy of the land regranted under S.5(1) shall be only with the previous sanction of the Collector and subject to the terms contained in sub-sec. (3) of S.5