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Bombay High Court
MALVANKAR
Dhondi Vithoba Koli - Appellant
Versus
Mahadeo Dagdu Koli - Respondent
Decided On : 04/18/1972
BOMBAY INFERIOR VILLAGE WATANS ABOLITION ACT, 1958 - SECTION 4, 5, 6, 9 - BOMBAY MERGED TERRITORIES MISCELLANEOUS ALIENATIONS ABOLITION ACT, 1955 - BOMBAY PARGANA AND KULKARNI WATANS (ABOLITION) ACT, 1950 - CIVIL PROCEDURE CODE, ORDER 20, RULE 12 (1) (C) - JOINT FAMILY PROPERTY - PARTITION - IMPARTIBLE PROPERTY - ABOLITION OF WATAN - RESUMPTION AND REGRANT OF LAND - OCCUPANCY PRICE - TENANTS-IN-COMMON - SANCTION OF COLLECTOR FOR PARTITION BY METES AND BOUNDS - MESNE PROFITS.
Fact of the Case:
The dispute relates to land originally granted as Shet Sanadi Inam to the ancestor of the parties for rendering service as Kotwal of the village. The land was impartible and governed by the rule of primogeniture. The family was joint until 1954-55 when there was a partition of the ancestral house between the brothers. The Watan was abolished under the Bombay Inferior Village Watans Abolition Act, 1958, before the death of the eldest brother, Dagdu. Dagdu was the eldest male member of the eldest branch of the family and the land stood in his name. After the abolition of the Watan, the plaintiff, Dhondi, filed a suit for partition and possession of his share in the land, alleging that it was joint family property before and after the abolition of the Watan and had become partible after the abolition. The trial court decreed the suit, but the appellate court dismissed it, holding that the land could not continue to be joint family property after it was regranted to Dagdu.
Finding of the Court:
The court held that the land was joint family property held by the three brothers as tenants-in-common before the abolition of the Watan. The abolition of the Watan and the resumption and regrant of the land to Dagdu did not change the character of the land as joint family property. The court further held that the plaintiff was entitled to 1/3rd share in the land and that the suit for partition was maintainable. The court also held that the plaintiff was entitled to mesne profits from the date of the institution of the suit.
Issues: 1. Whether the land continued to be joint family property after the abolition of the Watan and the resumption and regrant of the land to Dagdu? 2. Whether the plaintiff was entitled to 1/3rd share in the land? 3. Whether the suit for partition was maintainable? 4. Whether the plaintiff was entitled to mesne profits from the date of the institution of the suit?
Ratio Decidendi: 1. The court held that the abolition of the Watan and the resumption and regrant of the land to Dagdu did not change the character of the land as joint family property. The court relied on the provisions of the Bombay Inferior Village Watans Abolition Act, 1958, which provided for the abolition of Watans and the resumption of Watan land, but did not extinguish the interest of tenants-in-common in such land. 2. The court held that the plaintiff was entitled to 1/3rd share in the land as he was a tenant-in-common along with his brothers before the abolition of the Watan. 3. The court held that the suit for partition was maintainable as the land continued to be joint family property even after the abolition of the Watan. 4. The court held that the plaintiff was entitled to mesne profits from the date of the institution of the suit as he was entitled to possession of his share in the land from that date.
Final Decision: The court allowed the appeal, set aside the decree of the lower appellate court, and passed a decree declaring that the plaintiff, defendants Nos. 1 to 6 together, and defendants Nos. 7 and 8 together, were each entitled to 1/3rd share in the suit land. The court also directed the partition of the land by the Collector or a Gazetted subordinate appointed by him and directed an enquiry as to future mesne profits against the defendants in possession.
Admittedly, succession to the land was governed by the rule of primogeniture and it was also impartible. It is also common ground that this was the only land belonging to the family of the parties.
2. One Vithoba was the propositus. He died long back leaving behind him three sons Dagdu. Dhondi and Damu, Dagdu died on 3rd March, 1961 leaving behind him his widow Muktabai, defendant No. 6, and five sons viz. defendants Nos. 1 to 5, Defendant No. 5 died pending the suit. Dhondi is the plaintiff. Damu also died some time back leaving behind him his widow Parvati, defendant No. 8 and his son Hanmantu, defendant No. 7. The Watan was abolished under the Bombay Inferior Village Watans Abolition Act, 1958. (hereinafter called "the Act"), which came into force on 20th January, 1959 before Dagdu died on 3rd March, 1961. Admittedly. Dagdu was the eldest male member of the eldest branch of the family and the land stood in his name. Further, it is not disputed in this appeal that till about the year 1954-55 the family of the three brothers was joint and Dagdu was the Karta of the family. In 1954-55, there was a partition in the family and at that time the only property which could be partitioned being the ancestral house, the same was partitioned between the brothers. The land in dispute being Watan land was impartible and obviously, therefore, it could not be the subject-matter of the partition at that time. However, after the abolition of the Watan under the Act, the plaintiff Dhondi filed the suit, out of which this appeal arises, for partition and possession of his share in the land alleging that the land being the joint family property before and after the abolition of the Watan and the same having become partible after the abolition of the Watan, he was entitled to 1/3rd share in it. He also alleged in the plaint that though the land continued in the name of Dagdu. he held it as a manager of the joint Hindu family of the brothers. He, therefore, prayed for a decree for possession of his 1/3rd share by equitable partition by metes and bounds and also for mesne profits.
3. The defence was that the land being Watan land and therefore impartible before the abolition of the Watan and the same being granted to Dagdu on his paying occupancy price it was the self-acquired property of Dagdu and, therefore, the plaintiff was not entitled to any share in it.
4. The trial Court held that Watan being abolished, the land became partible and, therefore, the plaintiff was entitled to l/3rd share in it. The learned trial Judge, therefore decreed the suit for possession of the plaintiff's l/3rd share with mesne profits. Defendants Nos. 1 to 4 and 6 then went in appeal to the District Court in Civil Appeal No. 373 of 1963. The learned appellate Judge took the view that the land, after it was regranted to Dagdu, could not continue to be the joint family property and, therefore, the plaintiff had no share in it. According to him, the suit was not therefore maintainable. Hence he allowed the appeal, set aside the decree passed by the trial Court and dismissed the suit with costs. Being aggrieved by this judgment and decree, the plaintiff has come to this Court in second appeal.
5. The first question that is agitated before me by the learned counsel Mr. Jahagirdar, appearing on behalf of the appellant-plaintiff, is whether the land being originally the joint family land, the plaintiff could claim any share in it even after the abolition of the Watan under the Act and resumption and regrant of the same to Dagdu, his brother. It is not disputed before me that before 1954-55 when there was a severance of status amongst the brothers and their
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