SHIVAGONDA SUBRAIGONDA PATIL Vs. RUDRAGONDA BHIMAGONDA PATIL

JUDGEMENT

(1.) 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 sons 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. 2400 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 hend over the suit property to the plaintiff's father. It appears that part of the property out of R. S. 62/2 to the extent of four acres, 36 guntas was mortgaged to Hanmogond Balgonda Patil for Rs.1000 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 Virgonda 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 Hanmgonda 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 the property on the strength of his title deed; as such the revenue court erred in handing over possession of the portion of the suit property to the first defendant on 3-3-51.

(2.) 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 Wat Hukums 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 the 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 legaland did not offend any of the provisions of the wat 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 reasons of the defendant's adverse possession.

(3.) 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 would be necessary to understand the nature and significance of the wat hukums 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 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 Prant 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 the 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 'balute' and the number of then 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 balutas known as patel. There were others like Kulkarni (accountant) Deshpandya (district accountant) washerman, barber, 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 patelki 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 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.