Patna High Court
Baidyanath Mahto vs Shyam Mahto And Upendra Mahto And Ors. on 15 December, 1920
Equivalent citations: 59IND. CAS.899, AIR 1920 PATNA 806
JUDGMENT Dawson Miller, C.J.
1. This is an appeal by one of the defendants in the suit against a decision of the Subordinate Judge of Manbhum, dated the 4th October 1915. The case has taken a long time to come on for bearing because there have been various substitutions owing to the death of some of the parties. The plaintiff, who was the son of one of four brothers, instituted the suit claiming partition against the descendants of his uncle, Baishnab Charan, and against the widow of another uncle, Sridhar, and against a third uncle, Bholanath, himself, his own father's name being Lakshmi Charan. The claim was for partition of certain properties alleged to belong to the family jointly. The eldest of the four brothers, Baishnab Charan, was during his lifetime the Digwar of Mauza Chargali. He left three sons Mahendra, Upendra and Makunda who are the defendants Nos. 1, 2 and 3 and on his death Mahendra was appointed Digwar of the same property in place of his father. Mahendra died after the suit was instituted and his son, Baidyanath, thereupon became the Digwar in his turn. He also has died since that time and is now represented by his mother.
2. The properties in suit are comprised within five Mauzas, viz., Chargali, of which Baishnab and after him his defendants were the Digwars, Barasini, Agaya, Lakhanpur and Ketankiyari. The plaintiff's case was that certain areas within these Mauzas had been acquired by different members of the family and were the joint property of them all and he claimed a fourth share of these properties as being a descendant of one of the four brothers to whom they belonged. The defendants, other than those descended from Baishnab, offered no opposition to the present suit, and claimed, just as the plaintiff did, that these properties were the proper subject of partition and they claimed to be entitled to their proper share. I have already mentioned that, so far as the properties in Chargali are concerned, they were situated within a Digwari village of which, after Baishnab, Mahendra was the Digwar at the institution of the suit. With regard to Barasini, Agaya and Lakhanpur it appears that these were in the possession of the defendant Bholanath, the plaintiff's uncle, who at that time exercised the office of Sardar Digwar over these Mauzas. Before Bholanath's time his family and that of the plaintiff had apparently no interest in either Barasini or Agaya or Lakhanpur. The fifth village in which it is claimed there are certain portions of land belonging to the family is Ketankyari but; so far as this is concerned, the learned Subordinate Judge has dismissed the claim and there is no appeal with regard to that portion of the case. In addition to the land which is claimed as the subject of partition certain moveables, such as bullocks and carts and farm implements at these various villages, are also claimed as the subject of partition by the plaintiff and there is also a certain quantity of grain which was held for the purposes of a paddy mahajani business and if the plaintiff is entitled to partition at all it is proved that the family was a joint family at the time when the, suit was instituted and it has been found by the learned Judge that the paddy mahajani business was in fact carried on for the benefit of the joint family. Unless, therefore, it can be shown by the appellant, who was the Digwar at the time the suit was instituted and whose successor has been appointed in his place and is now the Digwar, that the paddy-lending business was not a joint family affair but a separate business carried on by Baisbnab and afterwards by Mahendra and his branch of the family it follows that the plaintiff must succeed as to that portion of his claim.
3. The learned Judge found as a fact that the family was a joint family and that these properties claimed had been acquired by one or other of the members of the family at the time when they were joint in estate and that they could be partitioned in the present suit, that is to say, all except those within Mouza Ketankiyari.
4. From that decision the appellant who represents Baishnab's branch of the family as the Digwar of Chargali has appealed and his main objection is that the properties in question form part and parcel of a Digwari grant and they could not, at all events so far as Chargali is concerned, be either transferred by the Digwar to other members of the family so as to make them joint family property either as cultivating tenants or under any larger interest such as a permanent lease, because this would be entirely contrary to the conditions under which such a grant is made to a Digwar. That this proposition as a general proposition of law is accurate I do not think can be denied. There is authority for it in the case of Grant v. Bangsi Deo 15 W.R. 2 8 : 6 B.L.R. 652 where it was distinctly laid down that a ghatwal (which for this purpose may be regarded as the same as a Digwar) is not competent to grant a lease in perpetuity and his successors are not bound to recognise such an incumbrance. That case, which was decided in 1871, was referred to with approval in 1901 in the High Court at Calcutta in the case of Narain Mullick v. Badi Roy 6 C.W.N. 94 : 29 C. 227. The head-note, which alone it is necessary to refer to, says that as a general principle a ghatwal is not competent to grant a lease in perpetuity and that his successor is not bound to recognise such an incumbrance. A lease granted in perpetuity to the plaintiff in that suit by the defendant No. 7 who was a ghatwal jointly with the predecessors of the other ghatwal defendants was held to be inoperative even as against the defendant No. 7. AS the Digwar holds his property by virtue of his office and cannot bind his successors by granting any permanent leases without the consent of the Government for that purpose it follows that, in so far as the properties in suit may be claimed by reason of any permanent lease granted to any of the members of the family, that lease is not binding upon the successor of the Digwar who granted the lease and, in so far as the property comprised in Chargali is concerned, it seems to me also to follow that the Digwar himself cannot grant a tenancy to the members of the joint family including himself because he, being the proprietor for the time being of the property, cannot grant himself a lease of that property as a cultivating tenant. It is impossible, from the plaint in this case and it is not easy from the evidence, to discover exactly the nature of the interest in the property claimed in Mauza Chargali by the plaintiff; that is to say, whether it was a mere cultivating right or whether it was something larger in the nature of a permanent lease or tenure, but in any case it seems to me that the plaintiff, by setting up that his family have acquired any co-parcenery rights in the Digwari property by grant from the Digwar himself, must fail. The Digwari grant is not a matter which in itself cannot be the subject of a co-parcenary. One of the points for consideration in the case was whether the properties which were claimed in Chargali were the self-acquired properties of Baishnab or whether they had been acquired by him-during his term as Digwar as his own self-acquired properties, and not on behalf of the joint family, but, whichever way the case is looked at, it seems to me equally clear that if these properties were acquired by Baishnab during the term of his office as Digwar such an acquisition cannot for a moment be allowed to stand. It is quite clear from the documentary evidence that what was granted to Baishnab as his Digwari property was the whole of Mauza Chargali, and he, being in as Digwar cannot acquire in that property any other interest either by clearing and cultivating the jungle land or in any other manner, because we find, on turning to the appointment of his son Mahendra and the document may be taken as in the same terms as the grant made to his father, that he is appointed Digwar of the village of ghatwali upon the terms of rendering Government service faithfully and honestly; and it is provided that he should not be able to transfer by mortgage or sale or in any other way any portion of the ghatwali lands, and if it be necessary to settle any land he shall not be able to do so without the order of the Deputy Commissioner; that he should not be able to hold possession of any lands in excess of the ghatwali lands mentioned alleging the same to be ghatwali; that be shall properly look after the jungle in the said Mauza and shall not out or sell any wood from the jungl or settle the said jangle with any one without the permission of the Deputy Commissioner. There is a further prohibition against settling the sub-soil of the Mauza with any one and his term of office is restricted in this way, "You will possess and enjoy the said ghatwali lands as long as you will hold the office of ghatwal and fulfil your duties properly, and regularly pay the rent. And if for any reason you are dismissed from the said office then you will have no claim to the said lands." The lands there given to Mahendra as Digwari or ghatwali are described as the Mauza known as Chargali in Pargana Chharra; and what the land comprised is shown from a certified copy of the list of names of Digwars and ghatwals within the jurisdiction of the town of Purulia for the year 1859. There the land is described, under the heading whether the Sardar gets a salary or holds a jagir, thus the Mauza Chargali forms a Digwari" which means that it belongs to the Digwar and there is no Sardar Digwar who gets a salary. It is clear, therefore, that the whole of Mauza Chargali was comprised in the Digwari grant. In these circumstances, it seems to me that there cannot be any doubt that the Digwar himself cannot either transfer this land to another so as to create an interest in it by any permanent lease nor could he himself acquire any interest in the uncultivated land such as jungle or waste land which is comprised within the Mauza; and, therefore, whether the interest which is now claimed by the plaintiff was what had originally been jungle land but had been brought under cultivation by the Digwar Baishnab, or whether it was some land of which a permanent lease was granted to the other members of the family, in either case it cannot form any joint family property to which the members of the family could have a valid claim. So far, therefore, as the property in Chargali is concerned. I think that the judgment of the learned Subordinate Judge must, be set aside.
5. With regard to the rest of the property which it was decreed should be partitioned that is situated in Barasini, Agnya and Lakkhanpur. With regard to that in Agaya and Lakkhanpur as well as that in Barasini it appears that that is held or was held at the time the suit was instituted by Bholanath, defendant No. 4, as the Sardar Digwar and it is contended by the plaintiff that certain portions of the land comprised in these Mauzas had been acquired also by Baishnab during his lifetime and that they were treated as joint family property. How these lands came to be acquired there is on the record no vary clear evidence to show, but it is clear that, if they were acquired by Baishnab they were not acquired by a person who was at that time himself the Digwar of the property. It has been suggested that these Mauzas of Barasini, Agaya and Lakkhanpur were appurtenant in some way to Chargali but it does not appear from the documentary evidence that they are included in the description of Mauza Chargali and it is admitted that the Sardar of Agaya and Lakkhanpur as well as of Barasini did not pay any rent or render any tribute or service to the Digwar of Chargali and so far as the evidence goes there is nothing to show that the Digwar of Chargali had any real interest by virtue of his office in any of these Mauzas, It may well be, therefore, that some interest was acquired in some portion of these properties by the father of defendants Nos. 1, 2 and 3 either by adverse possession or in some other legitimate way. We cannot tell, but at all events it has been found by the learned Judge that these properties were acquired and treated as joint family property all along. The defence, therefore, of the appellant does dot apply in the same way to these Mauzas, because he has failed to make out that the acquisition of these properties, whenever it took place, was contrary to the terms under which the property was held by the person at that time entitled to it as Digwar. I think, therefore that the appellant has failed to satisfy us that the Subordinate Judge was wrong in so far as he ordered a partition of the properties comprised within these three Mauzas. Barasini, Agaya and Lakkhanpur and to that extent I would dismiss this appeal. I may add that Bholanath who was the Sardar ghatwal of these properties has raised no objection to the present suit for partition.
6. The only other matter to be determined is as to the moveable properties in the suit. So far as the moveable properties in Chargali are concerned, I think the plaintiff has failed to make oat any case. He has failed to show that these properties were joint family properties and it is quite clear that the moveables at Chargali are moveables which are being used in connection with the cultivation of the whole of the Mauza in so far as it is in the khas possession of the Digwar himself and possibly in connection with his office as Digwar in collecting the rents and so on. With regard to the moveables in the possession of the other defendant, there is no dispute that these should form the subject' of partition and, therefore, we see no reason to differ from the conclusion arrived at by the learned Judge with regard to them. With regard to the paddy mahajani business the learned Judge has found that at the date of this suit that business existed and the family was joint and that that business was carried on for the benefit of the joint family. Again, the appellant has failed to satisfy us that he was wrong in arriving at the conclusion that the paddy-lending business formed a legitimate subject of partition in the present suit.
7. The result if, that the decree of the learned Subordinate Judge will be affirmed in a modified form and it will be ordered that a preliminary decree for partition be passed in the plaintiff's favour and that the extent of his share in the family property be declared to be four annas; that a Commissioner be appointed to effect a partition of the plaintiff's four annas share in the khas possession of the family (excluding the tenanted portion) in Mauzas Barasini, Agaya and Lakkhanpur. Then the decree will read "and also a partition of the plaintiff's four annas share in the moveable properties admittedly in the possession of the defendants respectively other than the defendants Nos. 1, 2 and 3 and those who have been substituted in place of any of them." The moveables which form the subject of the paddy lending business wherever found shall also be partitioned the plaintiff receiving his four-annas share.
Ross, J.
8. I agree