LAXMIBAI SADASHIV Vs. GANESH SHANKAR DATE

JUDGEMENT

(1.) The Division Bench consisting of Deshmukh and Sapre, J. by its judgment and order dated 14th/15th July, 1975 has referred the following question for determination by the Full Bench : "When an alienation like the service inam in this case was a grant to a family in the name of senior member and the same is abolished, whether the provisions of section 4 of the Bombay Merged Territories Miscellaneous Alienation Abolition Act, 1955, extinguish the ordinary rights and incidents in respect of such alienation under the personal law of the parties?"

(2.) The dispute in this appeal relates to lands pertaining to service inam. Originally the grant was to one Gangadhar and after his death an heirship enquiry was started in the year 1859. As a result thereof, the name of Narhari, his son, was entered as Navawala in respect of service inam by an order dated May 10, 1889. The genealogy of Narhari Gangadhar is as under :--- <FRM> NARHAR GANGADHAR ---------------------------------------------------------------------------- ----------------- | | | | Sadashiv (died in 1959) Shankarrao Balkrishna Madhav wife Laxmibai (deft. 9) (died in 1945) (died in 1952) (died in 1933) | | | | | Satyabhamabai Rukhminibai | | | (deft. 10) (deft. 11) | | | -------------------------------------- | | | | | | Ganesh (plff. 1) Vithal (Plff. 4) | | | | | -------------------------------- | | | | | | Yeshwant (plff. 2) Srikant (Plff. 3) | | ----------------------------------------------------------------------------- | | | | | | | Govind Waman Chintaman Vyankatesh Prabhakar | (Deft. 1) (Deft. 2) (Deft. 3) (Deft. 4) (Deft. 5) | ------------------------------------------------------- | | | Shripad Narayan Vishnu (Deft. 6) (Deft. 7) (Deft. 8) </FRM> After the death of Narhari in the year 1919 the proceedings initiated at the instance of the Chief Saheb of Ichalkaranji showed that he was dissatisfied with the services rendered by the existing members of the Date family i.e. Narharis and Gangadhars family. It was also found that there was no able person in the family who could render service. In view thereof the inam was resumed and the lands were cultivated through the State. On or about January 5, 1928, Sadashiv the eldest son of Narhari, made an application to the Chief Saheb that the inam may be revived and services may be accepted from Date family. Sadashiv himself was unable to render service and offered that his younger brother Balkrishna was able and competent as well as willing to render such service. After reviving the Vatan in the name of Sadashiv the services of Balkrishna were accepted. Balkrishna also gave a writing to the that he was willing to render service on behalf of his brother. This agreement continued till 1943 when the rendering of services was cancelled. Thereafter it was not necessary to render such service. There were two pieces of land pertaining to this inam, one being Survey No. 28/1 situate at lchalkaranji and the other being survey No. 661/5 situate at village Lat. As Balkrishna was put into possession of these lands upon revival of Vatan, his possession continued till the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 (hereinafter referred to as "The Act") was passed whereby alienation was abolished altogether. Balkrishna died in the year 1952 and after his death the two inam lands continued to be in possession of his heirs who are defendants Nos. 1 to 5. The plaintiffs who are the sons and grand sons of Shankarrao, one of the sons of Narhari filed a suit for partition and possession of their one fourth share in two inam lands and for past and future mesne profits. They pointed that orders were already passed in respect of regrant of one of the pieces of land, namely, Survey No. 28/1 from Ichalkaranji and the regrant in the case of Survey No. 661/5 of village Lat was kept pending by the Revenue Authorities as the disputes raised by defendants Nos. 9 to 11 were pending. The plaintiffs alleged that upon payment of occupancy price on behalf of the family during the time stipulated in the Act Government was bound to regrant the land and these two survey numbers were treated as family lands. According to the plaintiffs the four branches of Date family representing the four sons of Narhari were each entitled to one fourth share in the two survey numbers. The plaintiffs accordingly asked for a declaration of their one fourth share in these two lands which were then in possession of Balkrishnas heirs, the defendants Nos. 1 to 5, and they sought a direction of the Court to effect a partition and for delivery of possession of their one fourth share therein. Defendants Nos. 6 to 8 who represented the branch to Madhav the youngest son of Narhari admitted the claim of the plaintiffs and were agreeable to a decree being passed. Defendants Nos. 1 to 5 representing the branch of Balkrishna, the third son of Narhari contended that in the year 1928 when the inam was revived it was a grant in favour of Balkrishna alone and both the pieces of land represented the personal acquisition of Balkrishna. After the abolition of the inam under the Act both the pieces of land became the private property of Balkrishnas branch and defendants Nos. 1 to 5 were solely entitled to the said two pieces of land as they alone paid the occupancy price in respect thereof.

(3.) The place of defendants Nos. 9 to 11 who represented the branch of Sadashiv the eldest son of Narhari, was that in the year 1928 the inam was revived in the name of Sadashiv alone; that it was personal grant to Sadashiv; that while Sadashiv was the holder of the inam the Act came into force and the alienation was abolished; that Sadashiv was alive at the time when the Act came into force and that having regard to the provisions of section 7 of the Act Sadashiv alone was entitled to the regrant of these two pieces of land.