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SUPREME COURT OF INDIA
29th November 1951
FAZL ALI, MAHAJAN AND VIVIAN BOSE JJ.
Tikait Hargobind Prasad Singh - Appellant
Versus
Sm. Phaldani Kumari - Respondent.
Civil Appeal No. 87 of 1950.
Advocates appeared
Shri B. C. Dey, Senior Advocate (Shri S. C. Ghose, Advocate with him) instructed by Shri P. K. Chatterjee, Agent - for Appellant; Shri M. C. Setalvad, Senior Advocate (Shri Kanhaiyaji, Advocates, with him) instructed by Shri S. P. Varma, Agent - for Respondent.
T, the last gaddidar of Birbhum ghatwaJis governed by Regulation XXIX of 1814, died. His widow was recognized by the Commissioner as the next ghatwal and entitled to be maintained in possession of the ghatwali estate. A suit for possession of the ghatwalis was brought by an agnate of the deceased on the ground that the ghatwalis in suit were joint family property and were impartible by custom; that succession to them was governed by the law of lineal primogeniture; that the females and persons claiming through them were altogether excluded from inheritance ; that T. and the plaintiff were members of a joint Mitakshara family and that he alone as the oldest member of the oldest surviving line of the descendants of the common ancestor was entitled to succeed to them. The widow contended that Birbhum ghatwalis governed by Regulation XXIX of 1814 are not and cannot be in the nature of joint family property but that the person who succeeds and holds the tenure as ghatwal is the sole proprietor and owner thereof; that the properties being the exclusive and separate properties of the ghatwal for the time being, the widow was entitled to succeed to them in preference to the plaintiff under the Mitakshara school of Hindu law which admittedly governed the family of the parties. The trial court decreed the plaintiffs suit but the High Court on appeal reversed it. There was a further appeal to the Supreme Court.
Held (dismissing the appeaP): Among the Birbhum ghatwals governed by Regulation XXIX of 1814, when the last holder of a ghatwali dies leaving a widow and no direct lineal descendant, the widow succeeds in preference to the nearest male agnate, even though the family may be a joint family.
Per Mahajan and Bose ]].-"The result of the decided cases and of the provisions of Regulation XXIX of J814 is that the grantee of the tenure and his descendants have to be maintained in possession of the land from generation to generation conditional upon services to be rendered. The tenure is however liable to forfeiture for misconduct or misbehaviour of the ghatwal for the time being. The succession to it is determined by the rule of lineal primogeniture. It is neither partible nor alienable (except in exceptional cases with the consent of the Government or the Zamindar, as the case may be). These two characteristics are inherent in its very nature and have not been annexed to it by any rule of custom. The estate in the hands of the last holder is not liable either to attachment or sale in execution of a decree against him; nor is it liable in the hands of his successor for payment of his debts. When the succession opens out, the heir determined according to law has to execute a muchilika in favour of the grantor guaranteeing the performance of the duties annexed to the office and stipulating that in case of misconduct or misbehaviour or non-fulfilment of the obligations attaching to the office, as to which the tenure is in the nature of a remuneration, government will have the right to resume it.
1. From I. L. R. 28 Pat. 215. "In view of these peculiar characteristics of a ghatwali tenure in Birbhum which are so different from other inheritances, we find it difficult to apply to it the law of Mitakshara to the full extent. The essence of a
coparcenary under the Mitakshara law is unity of ownership The
incidents attaching to a Birbhum ghatwali tenure rule out the existence of any notion of community of interest and unity of possession of the members of the family with the holder for the time being. He is entitled to be maintained in exclusive possession of the ghatwali lands and the
devolution of the property is to him in the status of a sole heir .
"The view that in Birbhum, ghatwali tenures are in the nature of separate property or the exclusive property of the ghatwal finds support from the fact that in many instances, whenever succession has opened out inrespect of them, it has been determined according to the Mitakshara rule applicable to the devolution of separate property irrespective of the circumstances whether the deceased died in joint or separate status with
the other members of the family .
"For the reasons given above we hold that the Mitakshara rule that the property inherited by a person from his immediate paternal ancestors becomes ancestral in his hands and in it his sons, grandsons and great. grandsons acquire a right at the moment of the birth has no apposite
application to Birbhum ghatwali tenures .
"The argument of the learned counsel for the appellant that a widow not being a descendant of the grantee under the terms of Regulation XXIX of 1814, is not entitled to inherit to Birbhum ghatwali tenures also does not impress us. The regulation does not enact any rule of succession to these tenures, and the development with respect to them is admittedly determined by personal law or custom. The expression descendants used in the regulation cannot deprive females, like a widow or a mother, from taking the inheritance where they are legal heirs under custom~ ..•.. we think, that the expression descendants has been loosely employed in the regulation for the word heirs. "
Per Fazal Ali J.-"The logical corollary from this characteristic of ghatwali property would seem to be that it is more in the nature of exclusive property of the ghatwal than of joint family property. Nevertheless, in some cases; successior. to such property has been determined with reference to the rules of Hindu law regarding joint property, where the ghatwal was found to be a member of the joint family. As at present advised I am not prepared to say that these cases were wrongly decided, but I think it will not be incorrect to say that custom and usage are also important factors governing succession to ghatwali property and it- is conceivable that while in some cases custom may develop on the lines of Hindu law relating to succession owing to repeated instances of tacit and unquestioned application of the law, in other cases succession to ghatwali property may be governed not entirely by Hindu law but by such law as
modified in certain respects by usage and custom .
"It seems to me that these instances lend some support to the view that Hindu law has been modified by custom, so far as the Birbhum ghatwals are concerned, and that among the ghatwals belonging to this class, where the last ghatwal dies leaving a widow but no issue, then she succeeds in preference to the nearest male agnate, even though the family may be joint. The Birbhum gh~t\v~ls form. a class by themselves, and they are also subject to a special Regulation-Regulation XXIX of 1814. That Regulation states among other things that this class of ghatwals shall be entitled to hold the ghatwali property generation after generation and that they and their decendants in perpetuity shall be maintained in possession of such property. Strictly speaking, neither a widow nor a distant agnate will come within the terms of the Regulation, not being a descendant of the last ghatwal, and therefore custom and usage cannot be ruled out in determining succession in such cases." -Custom of succession among Birbhum Ghatwals.
Judgment
Fazl Ali, J. - While agreeing generally with my learned brother, Mahajan J., I wish to say a few words to indicate the main ground on which I would dismiss this appeal.
2. There are a number of authoritative decisions dealing with the special features of ghatwali property one of which is said to be that if the ghatwal is a member of a joint family, the family has no right over the property while it is in his hands. (See Durga Prashad Singh v. Tribeni Singh, Ind. App. 251 (P. C.). The logical corrollary from this characteristic of ghatwali property would seem to be that it is more in the nature of exclusive property of the ghatwal then of joint family property. Nevertheless, in some cases, succession to such property has been determined with reference to the rules of Hindu Law regarding joint property, where the ghatwal was found to be a member of the joint family. As at present advised, I am not prepared to say that those cases were wrongly decided, but I think it will not be incorrect to say that custom and usage are also important factors governing succession to ghatwali property, and it is conceivable that while in some cases custom may develop on the lines of Hindu law relating to succession owing to repeated instances of tacit and unquestioned application of the law, in other cases succession to ghatwal property may be governed not entirely by Hindu law but by such law as modified in certain respects by usage and custom.
3. The question with which we are concerned in this case is whether the widow of a deceased ghatwal, who was a member of a joint family and died leaving no issue or direct male descendant, can succeed to the ghatwali property in preference to the nearest male agnate.
4a. On a reference to the point, it would appear that what the plaintiff contended was that the clan to which the parties belong was governed by the mitakshera school of Hindu law "subjected to their clan custom," one of which was said to be that females, viz., widow, daughter or mother, and persons claiming through females could not and did not succeed on the death of the ghatwal. The allegation was controverted in the written statement, and it was claimed that the family was governed by the Mitakshara system of law and "there was no clan custom governing the estate in suit". Upon these pleadings, one of the issues framed by the trial Court was "whether succession to the ghatwali is governed by custom, as alleged in paragraph 7 of the plaint."
4b. In the course of the trial, the plaintiff tried to prove that females were always excluded as alleged by him. In this, he did not succeed. The Court, below, however, found that the question which directly affected the present case was a much narrower one, namely, whether females could succeed even when the family was joint. So far as this question is concerned, both the Courts below are agreed that female cannot be excluded if the property is the separate property of the ghatwal. But the question which still remains to be decided is what the true legal position would be if the property is deemed to be joint property. It appears that evidence was adduced at the trial to show that in 13 instances affecting the Baisi Chaurasi clan to whom the Birbhum ghatwals admittedly belong the widow of the last ghatwal succeeded in preference to a male agnate. The trial Judge however found that in four of these instances the nearest agnate who claimed the property was separate from the ghatwal or his widow, but, in the other instances, there was no evidence of separation, or "the evidence was weak", which, I take it is another way of saying that it could not be safely relied .
4c. It seems to me that these instances lend some support to the view that Hindu law has been modified by custom so far as the Birbhum ghatwals are concerned, and that among the ghatwals belonging to this class, where the last ghatwal dies leaving a widow but no issue, then she succeeds in preference to the nearest male agnate, even thou
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