ANNAGOUDA NATHGOUDA PATIL Vs. COURT OF WARDS

JUDGEMENT

(1.) This appeal is directed against a judgment and decree of a division bench of the Bombay High Court dated March 14, 1943, 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 Nos. 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 Nos. 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 centres 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. <TAB> Vithalrao (died 1896) --------------------------------------------------------- | | | Ganpatrao (died 1914) Nilkanthrao Anandrao =Tangawa alias (died 1899) (died 1913) Anandibai (Deft. No. 2) = Krishnabai | | Adopted Deft. No. 3 Vithalrao (Deft. No. 4) Babasaheb on 3-2-1939. adopted by Krishnabai on 4-11-1924. Respdt. No. 2 ----------------------------------------------------------------- | | | Firangojirao (died Tanakka Gangabai (died 15-11-1919.) (predeceased her on 14-2-1924) | sister Gangabai =Nathgauda Bhimabai (daughter) without any issue). (died on 27-1-1932). | ------------------------- | | Annagauda Balgauda (plff. No. 1) (plff. No. 2) Appellant No. 1. Appellant No. 2 </TAB>

(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 November 28, 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 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 Anandibai is 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 primogeniture, 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 September 23, 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 October 11, 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 ryotaya lands after forfeiture by Government and subjected to full assessment. On November 4, 1924, Krishnabai, the widow of Anandrao, adopted defendant No. 4 as a son to her husband. On January 27, 1932, Bhimabai died unmarried and her estate continued under the management of the Court of Wards. The appellants before us, who are the sisters sons of Firangojirao, brought this suit on August 5, 1938, and their case, in substance, is that after the Resolution of the Government passed on October 11, 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, defendant No. 4, who is respondent No. 2 in this appeal, was added as a party defendant some time 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 November 4, 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. Defendant No. S claimed to have been adopted as a son to her husband Ganpatrao by Anandibai, defendant No. 2, some time in February 1939.

(3.) The trial Court on a consideration of the evidence came to the conclusion that the Chikurde estate was an impartible property governed by the rules of primogeniture. It was held that, it being an impartible joint estate, the rule of survivorship still applied and consequently on the death of Ganpatrao, without leaving any son, the estate passed by survivorship to the next senior branch which was that of Firangojirao. The view taken by the Subordinate Judge is that after Firangojirao s death Bhimabai took only a provisional interest in the property which was liable to be divested by the emergence of a male member by adoption in the family and in fact she was legally divested of her interest in the property when defendant No. 4 was adopted by Anaridrao s widow. In the opinion of the Subordinate Judge the resolution of the Government treating the Chikurde estate as lapsed was premature and could not be made legally so long as there were widows living, who were capable of adopting sons. The trial Judge held further that even if Bhimabai was taken to have held the property as watan till her death, the next heir to succeed under the Bombay Act V of 1886 would be defendant No. 4 and not the plaintiffs. The result was that plaintiffs suit was dismissed. The plaintiffs then took an appeal to the High Court of Bombay, and this appeal was heard by a division bench consisting of Macklin and Rajadhyaksha JJ, The learned Judges dismissed the appeal and confirmed the decision of the trial Court, though the reasons given by them are not the same as those of the trial Judge. It was held by the High Court, on a construction of the sanad granted to Vithalrao in 1892, that the order of lapse or forfeiture of the watan estate passed by the Government in the year 1923 on the ground of failure of male heirs was not a valid and legal order and although under the relevant clause of the sanad Government could, in the absence of male heirs, resume the watan in the sense that they could make the property liable to full assessment, the other incidents of the watan estate still continued. Consequently, Act V of 1886 would still govern succession to such property and defendant No. 4 had preferential rights over the plaintiffs under Section 2 of that Act. It is against this decision that the plaintiffs have come up on appeal to this Court.