Karnataka High Court
Pandun S/O Laxman Terse vs Laxmibai C Subhadra W/O Nago ... on 1 October, 2012
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 01ST DAY OF OCTOBER, 2012
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
RFA NO. 696/2003
BETWEEN:
1. SRI.PANDU S/O LAXMAN TERSE
1(A) SMT.RUKMINI W/O PANDU TERASE,
AGE : 65 YEARS,
1(B) SMT.SHANTA W/O NINGAPPA KUDCHIKAR,
D/O PANDU TERASE, AGE : 50 YEARS,
1(C) SRI.LAXMAN S/O PANDU TERSE,
AGE : 45 YEARS,
1(D) SRI.MAHADEV S/O PANDU TERSE,
AGE : 40 YEARS,
1(E) SRI.MARUTHI S/O PANDU TERSE,
AGE : 37 YEARS,
ALL ARE RESIDING AT
UCHAGAON VILLAGE,
TQ & DIST : BELGAUM.
1(F) SMT.MALLAWWA W/O KEDARI PATIL,
D/O PANDU TERSE, 32 YEARS,
RESIDING AT KANGRALI KHURD,
TALUK & DISTRICT : BELGAUM.
2. SMT.UMABAI, W/O KESHAV DODDANNAVAR,
AGE : 50 YEARS, OCC : HOUSE-HOLD WORK,
R/AT.BACHHI VILLAGE, POST : TURUMARI,
TALUK & DIST : BELGAUM.
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3. SMT.SUMAN @ ANUSUYA
W/O KRISHNA JADHAV,
AGE : 40 YEARS, OCC : HOUSEHOLD,
R/AT.GAVAPATHGALLI, UCHAGAON,
TALUK & DIST : BELGAUM.
4. SRI.KRISHNA BHAIRU JADHAV,
AGE : 55 YEARS, R/AT MALA,
NOW SURAJ LODGE,
SHUKARWARPET, TILAKAWADI,
BELGAUM.
4(A) SHRI VITTALKRISHNA JADHAV,
AGE : 27 YEARS, OCC : BUSINESS,
R/O.SHUKRAWAR PETH,
TILAKWADI BELGAUM 590 006.
4(B) SMT.SAVITA W/O RAJU YADAV,
AGE : 25 YEARS, OCC : HOUSEHOLD,
R/O.SHUKRAWAR PETH,
TILAKWADI BELGAUM 590 006.
...APPELLANTS
(By Sri: M.G.NAGANURI : S.P.PATIL, ADV. FOR A1(A TO F)
& A4 (A & B) ; Sri.H.RAMACHANDRA, ADV. FOR A2 TO A3)
AND:
1. SMT.LAXMIBAI.C.SUBHADRA,
W/O NAGO CHALAVETKAR,
AGE : 63 YEARS, OCC : HOUSE-HOLD
AND AGRICULTURE, R/AT.GOJAGA VILLAGE,
TQ & DIST : BELGAUM.
2. SMT.SHIDDUBAI W/O ISHWAR HAVALA,
AGE : 60 YEARS, OCC : HOUSEHOLD AND
AGRICULTURE, R/AT.ANAGOL GALLI,
UCHAGAON, TQ & DIST : BELGAUM.
3. SMT.ANANDIBAI W/O GUNDI TARSE,
AGE : 65 YEARS, OCC : HOUSE HOLD WORK
AND AGRIL., R/AT SURVEERGALLI,
UCHAGAON, TQ & DIST : BELGAUM.
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4. SRI.HANAMANT S/O GUNDU TERSE,
AGE : 44 YEARS, OCC : AGRICULTURE,
R/AT.SURVEERGALLI, UCHAGAON,
TQ & DIST : BELGAUM.
5. SMT.VITHABAI W/O MONAPPA
AGE : 35 YEARS, OCC : HOUSEHOLD,
R/AT.ALATAGE, TQ & DIST : BELGAUM.
6. SMT.RENUKA W/O LAXMAN KANGRALKAR,
AGE : 30 YEARS, OCC : HOUSEHOLD,
R/AT.KONEWADI, TQ & DIST : BELGAUM.
7. SMT.SUMAN GANAPATI JOSHIKAR,
AGE : 40 YEARS, R/AT.JOSHIKAR PAPA MALA,
SHIVAJI COLONY, TILAKAWADI, BELGAUM.
... RESPONDENTS
(By Smt : HEMALEKHA, ADV FOR G.BALAKRISHNA
SHASTRY, ADV. FOR R1, R2 :
R3 TO R7 - SERVED )
****
THIS REGULAR FIRST APPEAL FILED U/S 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED
:19/04/2003 PASSED IN O.S.No.179/1994 ON THE FILE
OF III ADDL.CIVIL JUDGE (SR.DN), BELGAUM,
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL BEING RESERVED AND COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, COURT
DELIVERED THE FOLLOWING:-
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JUDGMENT
This regular first appeal is filed by defendants No.1, 7, 8 and 9 in OS No.179/1994, assailing the judgment and decree dated 19.4.2003, by the III Addl. Civil Judge (Sr.Dn.), Belgaum. By the said judgment and decree the respondent-plaintiffs were held to be entitled to half-share in the suit schedule 'B' properties.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial court.
3. The respondent-plaintiffs filed the suit seeking partition and separate possession of the 'B' schedule properties consisting lands, house and sites belonging to the joint family. Schedule 'A' is the genealogy of the joint family and during the course of arguments, the learned counsel have completed the genealogy by giving additional details. The same is extracted as follows:- -5-
PROPOSITUS VENKAT (Died long prior to 1935) Laxman(1st Son) Mahadeo(died 4.11.35) Savakka (Pre- deceased (Died on 11/05/1947) Wife Nagubai (died on 16.9.94) her brothers) No claim Wife Lakshmi Bai (Died in 1957) ___________________________________ Laxmibai. Shiddubai (Plff-1) (Plff.2) ________________________________________________________________________________ Tulsabai Venkat Bharmanna Gundu Pandu (Died 45 Yrs (Died issueless) (Died on (Died in 1978) (D-1) ago) Wife Yashodabai (dead) 15.10.94) Wife Anandibai (Dead) (Branch stands (D-2) LRs on extinguished) record ________________________________ Son Daughter D-9 D-10 Umabai. Suman D-7. D-8.
_________________________________________________ Hanamant. Vithabai Renuka Shevanta.
D-3. D-4. D-5. D-6.
4. The original propositus Venkat, died long prior to the year 1935. He had three children named Laxman, Mahadeo and Savakka. Savakka predeceased her brothers. Laxman died on 11/5/1947, leaving behind his widow Lakshmi Bai, who died in the year 1957. They had five children, Tuljabai, Venkat, Bharmanna, Gundu and Pandu. Tulajabai died about 45 years ago leaving behind a son and daughter. Venkat was married to Yashodabai and they died -6- issueless. Bharmanna died on 15/10/1994, leaving behind his children Umabai and Suman who are defendants No.7 and 8 respectively. Gundu died in the year 1978. He was married to Anandibai who is defendant No.2 and they have four children named Hanamant, Vithabai, Renuka and Shevanta, who are defendants Nos. 3 to 6 respectively. Pandu-defendant No.1 also died during the pendency of this appeal on 12/3/2010, leaving behind his six legal representatives, namely, his widow and children who are on record.
5. The original propositus's second son, Mahadeo died on 4/11/1935. He was married to one Nagubai who died on 16/9/1994, leaving behind Laxmibai and Shiddubai who are plaintiff Nos.1 and 2. The dispute in this case is between the legal representatives of Mahadeo and Laxman, the sons of original propositus, Venkat. Defendant Nos. 9 and 10 were subsequently impleaded in the suit. They are the children of deceased Tulsabai, who was the daughter of Laxman.
6. According to the Plaintiffs, the original propositus Venkat was an agriculturist by profession and he was also rendering Sanadi services in Kurundwad Sansthan, -7- Anagol Taluk. He had inherited the ancestral house situated at Uchagaon village, where he resided. The agricultural lands as described in schedule 'B' of the plaint were given to the original propositus Venkat by way of Inam for rendering Sanadi service. Venkat was cultivating the said land personally and was rendering services as Sanadi. According to the plaintiffs, Venkat, his wife, sons and daughter lived jointly and whatever income was derived out of the said lands was spent for the benefit of the joint family. Thus, 'B' schedule properties were treated as joint family properties. Venkat died at Uchagaon much prior to the year 1935, leaving behind his two sons. His daughter Savakka had predeceased her brothers. Venkat's two sons namely, Laxman and Mahadeo continued to remain joint and they jointly enjoyed the 'B' schedule properties. They also rendered Sanadi services having inherited the same from their father. On the death of Venkat, Laxman being the eldest male member of the family took over the management of the agricultural land. During their life time, they did not effect any partition in respect of the 'B' schedule properties, though each of them had an undivided half-share in the same i.e., after the death of their father, Venkat. -8-
7. Mahadeo, the father of the plaintiffs died on 4/11/1935, leaving behind his widow, Nagubai and two minor daughters i.e. the plaintiffs. It is the case of the plaintiffs that they had inherited Mahadeo's half-share in the 'B' schedule properties and continued to cultivate and enjoy the same under the management of Laxman. Thereafter, Laxman died in the year 1947, leaving behind him his four sons and daughter, to inherit his undivided half-share in the 'B' schedule properties. Accordingly, the names of the legal representatives of the respective brothers were entered in the revenue records with regard to the 'B' schedule properties. For the sake of convenience, the heirs of Laxman were cultivating some portions of the lands and similarly, Nagubai was cultivating some other portions of the 'B' schedule properties. Though they were in joint ownership and possession of the entire 'B' schedule lands, such an arrangement was made in order to avoid any mutual bickering, but without any intention of effecting a partition in respect of the lands.
8. It is the case of the plaintiffs that after the introduction of the Hindu Succession Act, 1956, (hereinafter referred to as the '1956 Act') the limited interest of Nagubai ripened into her absolute ownership with regard to -9- half- share in the 'B' schedule lands. When the matter stood thus, the Karnataka Village Offices Abolition Act, 1961 (herein after referred to as 'the Act' for the sake of brevity) came into force on 1/2/1963 and M.E.No.2500 was certified as per the order of the Tahasildar, Belgaum, on 12/6/1967 under WTN-SR-61-70. Thereafter, the agricultural lands were re-granted in the name of Nagubai, by an order dated 7/10/1980, passed by the Tahasildar, Belgaum, under proceeding No.WTN:VOA:SR:188/80-81. Accordingly, M.E. No.3655 was certified in the name of Nagubai and her name was entered in the revenue records pursuant to the re-grant order. It is the case of the plaintiffs that, subsequently the said mutation entry was corrected without notice to Nagubai at the instance of the sons of Laxman. Though Nagubai had not surrendered any of her rights in the 'B' schedule properties, ME No.4222 was entered in the name of the legal heirs of Laxman, without intimation to Nagubai. The said illegal entries were made in collusion with the revenue officials, despite Nagubai having half-share in the 'B' schedule properties, after the death of her husband.
9. It is the further case of the Plaintiffs that during the life time of Nagubai, there was no partition between herself and the defendants. Nagubai died on 16/9/1994 at
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Uchagaon, leaving behind the plaintiffs as the only heirs, who are entitled to the undivided half-share in the 'B' schedule properties being the Class I heirs, under the provisions of the 1956 Act. Even after the death of Nagubai, the plaintiffs have continued to be in joint possession of the 'B' schedule lands with the defendants. According to the plaintiffs the re-grant of lands under the provisions of the Act, in the name of Nagubai has enured to the benefit of the entire joint family and Nagubai had an undivided interest in half-share which has ripened in to her absolute ownership, after the enforcement of the, 1956 Act. On the demise of Nagubai, the plaintiffs have inherited the undivided half- share in the 'B' schedule properties, as per Section 14 of the 1956 Act. Therefore, they are entitled to their respective shares under Sections 15 and 16 of the 1956 Act. According to the plaintiffs, after the death of their mother, the defendants started harassing them and trying to oust them from the joint family properties. Therefore, in the first week of October, 1994, they requested the defendants to effect partition in the joint family properties. The defendants initially agreed to effect a partition, but, later on avoided the same by taking advantage of the fact that the plaintiffs are women. The plaintiffs have been cultivating the lands and
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have grown crops such as paddy, potato, groundnut etc., but, the defendants are threatening to take away the crops grown by them. Being left with no alternative, they filed the suit seeking partition and separate possession of their half- share in the 'B' schedule properties.
10. On receipt of the summons and notice from the trial court, the defendants appeared and admitted the relationship between the parties by stating that the plaintiffs' father, Mahadeo had died on 4/11/1935, and Mahadeo's elder brother Laxman, had died on 11/5/1947, leaving behind four sons. The first son of Laxman had died issueless, thus his branch, is extinguished. That Bharmanna the second son, died in the year 1994, leaving behind two daughters. Gundu died in the year 1978, leaving behind his widow and two sons and two daughters and Pandu is the fourth son of Laxman. It was also admitted that 'B' schedule properties were given to the original propositus, Venkat as an Inam for rendering Sanadi services. It was denied that the said lands were cultivated jointly. But, on the other hand, Venkat alone was enjoying the proceeds of the suit lands. That the suit lands were not divided during the life-time of Venkat. That after the death of Venkat, his second son Mahadeo did not show any
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inclination to render Sanadi Service and it was Laxman, the first son who was appointed as a Sanadi and the suit lands were attached as emoluments to the office of the Sanadi and the lands were granted in the name of Laxman alone. Therefore, it was contended that there was no occasion to effect a partition of 'B' schedule properties. It was also contended that since Mahadeo never rendered any Sanadi services his widow, Nagubai did not inherit any share in the suit schedule properties. That Nagubai's or the plaintiffs' names were not entered in the revenue records. That the independent cultivation of certain portions of lands by Laxman and Nagubai was only for the sake of convenience. That Nagubai had no right, title or interest in the schedule lands, during the life time of her husband, Mahadeo or after his death. Therefore, the question of her limited interest being ripened into an absolute ownership on the enforcement of the 1956 Act is false. The plaintiffs' suit is therefore not maintainable and they have no locus-standi to file the same, as their father died on 4/11/1935, prior to coming into force of the Hindu Women's Right to Property Act, 1937 (hereinafter referred to as 'the 1937 Act' for the sake of brevity).
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11. The defendants however admitted that after coming into force of the Act, the suit lands came to be vested with State of Karnataka on abolition of the village office. That Nagubai without intimation to the defendants and in collusion with the Tahashildar, Belgaum, got certain lands re-granted in her name, though she had never rendered Sanadi service and her name never appeared as a holder. Her name was also illegally entered in the Pahani records pursuant to the re-grant order. The defendants were never aware of the re-grant order. They therefore, moved revenue authorities and they got deleted Nagubai names, by certifying M.E.No.4222. When Nagubai had no right, title or interest in the suit lands, the question of her surrendering or relinquishing never arose. That the plaintiffs never cultivated the suit lands after the death of their mother Nagubai. That Nagubai's husband i.e., plaintiffs' father- Mahadeo was never "a Watandar", therefore, he had no right, title or interest in the said land. The said lands are not joint family properties. That there was no cause of action for the plaintiffs to file the suit. Therefore, they sought dismissal of the suit.
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12. In rejoinder, the plaintiffs contended that prior to the enforcement of the 1937 Act, Hindu Law Inheritance (Amendment) Act 1929 was in force, that if a male heir died leaving behind a female heir the right of the female heir was co-terminus with that of the male heir till her death. Therefore, the death of female heir required determination of succession. In the instant case, though Mahadeo died in the year 1935, his widow Nagubai, survived him and the persona of her husband continued till her death in the year 1994. That succession was not open till the death of Nagubai and Nagubai succeeded to Mahadeo's share and on the death of Nagubai the plaintiffs succeeded to the said half-share as Class I heirs, under the provisions of the 1956 Act.
13. On the basis of the aforesaid pleadings, the trial court framed the following issues for its consideration:-
(i) Do the plaintiffs prove that
the suit properties are the joint family
properties of the plaintiffs and
defendants?
(ii) Do the plaintiffs further prove
that after the death of Mahadeo, his wife
Nagubai and her two minor daughters i.e.
plaintiffs inherited undivided half-share in the suit properties being the legal representatives of said Mahadoe?
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(iii) Whether the plaintiffs are
entitled for half-share in the suit
properties?
(iv) Do the defendants 1,7 and 8
prove that the description of the suit
properties given in the suit plaint is not correct?
(v) Whether the plaintiffs have
got no cause of action to file the suit?
(vi) Whether the Court fee paid
by plaintiffs is not sufficient?
(vii) To what reliefs plaintiffs are
entitled?"
14. In support of their case, the plaintiffs examined two witnesses as PW1 and PW2 and produced 161 documents, which were marked as Exs.P1 to Exs.P161. While, the defendant No. 1 examined himself as DW1 and another witness as DW2 and produced 1 document, Ex.D1- Special Power of Attorney.
15. On the basis of the evidence, the trial court answered issue Nos.1 to 3 in the affirmative and issue Nos. 4 to 6 in the negative and answered issue Nos. 7 and 8 accordingly and decreed the plaintiffs' suit by holding that they are entitled to get half-share in the 'B' schedule properties.
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16. Being aggrieved by the said judgment and decree, the defendant Nos.1, 7, 8 and 9 have preferred this appeal.
17. I have heard the learned counsel for the appellant No.- 1(A) to (F) and appellant No.4 (A & B) and learned counsel for the respondent Nos. 1 and 2. Respondent Nos. 3 to 7 are served and are un-represented.
18. It is contended on behalf of the appellants that the trial court was not right in granting half-share to the plaintiffs, as Mahadeo, the father of the plaintiffs died on 4/11/1935, i.e. prior to the enforcement of the 1937 Act. Till the enforcement of the 1937 Act, the principles of survivorship prevailed in Bombay-Karnataka part of the State. That it is only after the enforcement of the 1937 Act, if a male Hindu died intestate, then his share could have been inherited by his widow in terms of Section 3 of the said Act. In fact, Section 4 of the 1937 Act, clearly stipulated, the Act would not apply to the property of any Hindu dying intestate before the commencement of the Act. Since Mahadeo died prior to the enforcement of the 1937 Act, his right, title and interest in schedule lands were succeeded to by his brother, Laxman on the principles of survivorship. Therefore,
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Nagubai, the widow of Mahadeo did not inherit any right in the said land and consequently, the plaintiffs being the daughters of Mahadeo and Nagubai also have lost their right in the said lands. In support of these contentions, the appellants' counsel has relied upon certain decisions.
19. Per contra, learned counsel for the respondents has contended that Nagubai had a pre-existing right in the property of her husband as she had a right of maintenance and therefore, that right continued despite the demise of Mahadeo in the year 1935. Moreover, the 'B' schedule lands, being "Watan lands" were re-granted in the name of Nagubai in the year 1980. The re-grant order enured to the benefit of the joint family. Therefore, Nagubai had half-share in the said lands. It was contended that the original propositus Venkat, the father of Laxman and Mahadeo was rendering Sanadi services and 'B' schedule lands were attached as the emoluments for the said service. That on the death of Venkat, the said office was inherited and Laxman being the elder son continued the Sanadi service but that did not diminish the right, title or interest that Mahadeo had in the suit lands. That after the abolition of the village office, the lands stood vested in the state Government, thereafter, lands were re-granted in the names of Nagubai that it is a settled
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position of law that the re-grant of lands under the provision of the Act, would enure to the benefit of the entire family. Therefore the Mahadeo's rights, title and interest in the suit lands was never extinguished. On the other hand, his right was intact by virtue of the order of re-grant made in the name of his widow, Nagubai. Nagubai died in the year 1994. Therefore, her right in the suit lands to an extent of half- share is in terms of the right that her deceased husband had, as there was no partition in the joint family till, the present suit for the partition has been filed. Hence, relying on certain decisions, learned counsel submitted that there is no merit in this appeal and same may be dismissed.
20. In reply, counsel for the appellants has stated that the re-grant order has not been produced. That only item No.9 and 13 were re-granted in the name of Nagubai and other items were re-granted in the name of Pandu- defendant No.1, who is one of the sons of Laxman. That neither the 1937 Act, nor the 1956 Act would apply to the present case and that Nagubai had at the most a right to be maintained out of the suit lands, the said right cannot be equated to right to succeed to the lands. Therefore, the plaintiffs, cannot claim any right, title or interest in the suit lands, since on the death of the father-Mahadeo, in the year
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1935, his right in the suit lands was extinguished by the principles of survivorship and it is only the legal heirs of Laxman, the only surviving brother of Mahadeo who are entitled to share in the suit lands. He therefore, contended that the suit of the plaintiffs be dismissed by allowing the appeal.
21. Having heard the counsel on both sides and on perusal of the original records the following points would arise for my consideration:
i) Whether the right, title and interest of Mahadeo in the suit lands was extinguished on his death on 4/11/1935 and the same was succeeded to by his brother Laxman by the principle of survivorship? or Whether Nagubal had a right to half-share in the suit lands on the demise of her husband?
ii) Whether the re-grant orders made in the name of Nagubai, Pandu or any other person of the family under the provisions of the Act would enure to the benefit of the entire family?
iii) Whether the plaintiffs have right, title and interest to an extent of half-share in the 'B' schedule properties?
iv) What order?
22. From the material on record, the relationship between parties is not disputed. Essentially, the dispute is between the legal heirs of two sons of the original propositus
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Venkat, namely, Laxman and Mahadeo. It is also not in dispute that Venkat, the original propositus was rendering Sanadi services which was recognised as one of the village offices and 'B' schedule lands were attached to the said service, by way of emoluments and that he was enjoying the said lands and on his death, Laxman and Mahadeo his sons, inherited the same. It is not in dispute that the plaintiffs' father Mahadeo died on 4/11/1935 and his brother Laxman died on 11/5/1947, leaving behind female heirs. That Lakshman and Mahadeo inherited the village office on the death of Venkat though only Laxman may have been rendering the said service and that there was no partition of the joint family during the lifetime of Venkat or during the life time of his sons and till the filing of the suit for partition.
23. On the death of Mahadeo, the name of his widow Nagubai was entered as per ME.No.565 in respect of some of the suit lands, which was however only in the year 1950. The name of Nagubai continued in the Revenue Records thereafter. The Act came into force on 01/02/1963 and to that effect, ME.No.2500 came to be certified as per the order of the Tahsildar, Belgaum, dated 12/06/1967 under WTN - SR - 61/70. The order of regrant in the name Mahadeo's widow, Nagubai is dated 17/10/1980 in
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proceeding No.WTN:VOA:SR:188/80-81 by the Tahsildar, Belgaum. Accordingly, ME.No.3655 came to be certified in the name of Nagubai on 07/10/1980 and her name was entered in the Revenue Records pursuant to the regrant order. The regrant order made in the name of Nagubai has not been challenged. The mutation entry made in the name of Nagubai was got corrected by the defendants as per ME.No.4222 dated 03/05/1985. The same was without any notice to Nagubai. Some other suit lands were regranted in the name of defendant No.1.
24. While answering the points for consideration together, it would be relevant to consider the general principles of inheritance by female heirs as the widow and daughters of Mahadeo were the only heirs of Mahadeo, particularly with regard to the Mitakshara joint family, as applicable by the Bombay School, as the parties herein are from Belgaum, part of erstwhile Bombay Province and the lands are situated at Uchagaon. While considering the same, the law of inheritance prior to the enforcement of Hindu Succession Act 1956 and after its enforcement have to be taken note of. The 1956 Act came into force on 17/6/1956, which brought about radical and drastic
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changes in the traditional or shastric or uncodified law of succession.
25. An undivided family, is the normal condition of Hindu Society, the joint family status is the result of birth but possession of joint property is not a necessary concomitant of a joint family. Coparcenary is a narrower body than a joint family and consists of only those persons who have taken by birth an interest in the property of the holder for the time being and who can enforce a partition whenever they like. There is a community of interest and unity of possession between all members of a coparcenary, and upon the death of any one of them the others took by survivorship, that in which, during the deceased's life time, they had a common interest and common possession until the enforcement of the 1937 Act followed by the 1956 Act made applicable to those areas where the shastric or uncodified law did not permit female members any right in the joint family or ancestral property No individual member while the family remains joint could predict his definite share, either in the corpus or in the income. Till a partition takes place a coparcener's interest remained a fluctuating interest, enlarged by deaths and diminished by births in the family. A coparcener obtains an interest by birth in the
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coparcenary property and has joint possession and enjoyment of the same. A coparcener has rights of alienation and can enforce a partition of his share in the coparcenary property. The coparcenerery relationship is a creature of law and cannot be created by act of parties except when a member is introduced into the coparcenary by adoption. The wife and children of a coparcenar have right to be maintained out of the joint family property. On the death of the last surviving coparcenar, the whole property devolves on his own heirs.
26. Coparcenary property is distinguished from separate property. Coparcenary property can be divided into ancestral property and joint family property, which is not ancestral. The distinction between the two is that in the former property is acquired with the aid of ancestral property and in the latter property is acquired by the individual coparcenar without such aid but treated as property of whole family. Where there is ancestral joint family property, every member of the family acquires in it a right by birth, which cannot be defeated by individual alienation or disposition of any kind except under certain peculiar circumstances. What distinguishes, an ancestral joint family property from joint family property simplicitor is that in the case of the latter,
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pre existence of nuclues is not necessary. But, if property is proved to be joint family property, it is subject to the same legal incidents as the ancestral property. According to the erudite author, N.R.Raghavachariar, "Hindu Law - Principles and precedents," coparcenary property can be divided into the following four types:
i) Ancestral property,
ii) Acquisitions made by the coparceners with the help of
ancestral property,
iii) Joint acquisitions of the coparceners even without such help provided there was no proof of intention on their part that the property should not be treated as joint family property, and
iv) Separate property of the coparceners thrown into the common stock.
The distinction between ancestral property and joint family property has been stated. In the case of (i) and (ii) above the existence of a nucleus is necessary. While in the case of (iii) and (iv) above the acquisition of property would not depend upon the existence of a nucleus or ancestral property.
27. Where the Government grants an estate in the exercise of its sovereign power, normally the estate becomes the self-acquired property of the grantee, whether it is a new
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grant or the restoration of an estate previously confiscated by the government, unless the grant is intended to be for the benefit of the family, or a contrary intention appears from the grant, or it was treated as joint family property by the donee and the members of the family, either by a family arrangement or a family custom. Therefore, prima facie a gift or grant made to a member of a joint family is his separate property, will only become joint family property either when it descends to his sons, or he himself has thrown it into the common stock. Therefore whether a Government grant enures to the grantee as his separate property or as his joint family property is one of construction of the grant with reference to its terms and the surrounding circumstances.
28. An impartible estate is created by a grant, which is the prerogative of the Sovereign or the State. An impartible estate may be separate property of the holder or it may be the property of a joint undivided family of which he is a member. If it is the latter, succession to it will be regulated according to the rule of survivorship. However all the incidents of joint family property would not be applicable to an impartiable estate. For instance, right of partition would not exist in the case of an impartial estate. Similarly, the right to alienation by the head of family is incomparitable
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with impartibility. It is also held that the right of maintenance does not arise vis-a-vis impartible estate. But, the right of survivorship exists and to this extent an impartiable estate has a character of joint family property, and its devolution is governed by the general Mitakshara Law as applicable to such property. Thus, on the death of a holder of an impartiable estate, the other coparceners who survive him would succeed to the said estate.
29. It is however said that in the case of an impartiable estate governed by the Mitakshara rule of succession by survivorship controlled by the Rule of Primogeniture, it is the undivided Hindu family and not the present holder of the estate that can be said to the owner of the estate, though the income of the said estate is not the income of the undivided family. The income of the estate is received by the holder on his own account and not as the Karta of the family and is absolutely his, as contrasted with the income received by the manager of a joint family for and on behalf of the family.
30. As far as succession to an impartiable estate is concerned, the customary law regulating it, is as per general Hindu Law prevalent in that part of India where it is situated
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with such qualifications only as flow from the impartiable nature of the estate. Consequently, in applying this law, the impartible estate under the Mitakshara, though in the sole enjoyment of the holder, is to be regarded for the purposes of succession as the joint property of the holder and his family and as passing by survivorship, unless it is shown to be the separate property of the holder or his branch, in which case it devolves according to the rules of succession applicable to separate property.
31. Owing to the distinction between property in which a person acquires right by birth and that in which he does not get such right, 'Daya or heritage' is classified by the Mitakshara into 'apratibandha' or unobstructed heritage and 'sapratibandha' or obstructed heritage. They can be explained by stating that the wealth of the father or of the paternal grand father becomes the property of his sons or of his grandsons by right by they being his sons or grandsons, and that is an inheritance not liable to obstruction. But property devolved on parents, brothers and other members of the family upon the demise of the owner in the absence of a male issue, is an inheritance subject to obstruction. In other words, unobstructed heritage is property in which a person gets a right by birth, while obstructed heritage
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denotes property in which a person gets a right not by birth, but on the death of the last owner. In other words, Apratibandha daya can be said to denote a vested right while Sapratibandha daya only a contingent right i.e., contingent on the death of the last holder without leaving nearer heirs.
32. Broadly speaking, Mitakshara Law recognised two modes of devolution of property, namely, survivorship and succession. The Rules of Survivorship applies to joint family property, while Rules of the Succession apply to property held in absolute severalty by the last owner.
33. On the death of a male Hindu, the person who is then his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It cannot, remain in abeyance except when a nearer heir is in the womb. Similarly, when the estate of a Hindu has vested in a person, who is the nearest heir at the time of his death, the vesting is absolute and he cannot be divested of his property, except either by the birth of a son or a daughter, who was conceived at the time of his death. According to celebrated author is Dinshah Mulla, "Hindu Law" 21st Edition, by Satyajit and Desai, under the uncodified
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Mitakshara law, the property of male a Hindu devolved on his death in the following manner as far as the male heirs are concerned:-
i) Where the deceased at the time of his death, was a member of a joint and undivided family, i.e. coparcenary, his undivided interest in the coparcenary property would devolve on his coparceners (male) by survivorship.
ii) If the deceased was joint at the time of his death, but, had left behind self-acquired or separate property, then that property would go to his heirs by succession and not to his coparceners by survivorship.
The order of succession is son, grandson and great- grandson.
34. The Law of Inheritance by female heirs is divergent and varies between the various Schools of Law. However, the widow succeeded to a male Hindu under all the Schools including the Bombay School. Under the Hindu Law of Inheritance (Amendment) Act, 1929, a son's daughter, daughter's daughter and sister of a male Hindu could inherit his properties. This is in addition to the widow, daughter,
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mother and other female relations, who could inherit the property of a male Hindu.
35. According to Mulla, inheritance by female heirs is as follows:
"170. PROPERTY INHERITED BY FEMALE FROM MALES IN THE BOMBAY STATE (1) Besides the five females who can inherit to a male in all Schools; namely: (1) the window; (2) daughter; (3) mother; (4) father's mother; and (5) father's father's mother, the Bombay School recognises other females as heirs namely, daughters of descendants, and ascendants and collaterals within five degrees, and widows of gotraja sapindas. These include the three females specifically mentioned as heirs in the Hindu Law of Inheritance (Amendment) Act 1929, namely, the son's daughter, the daughter's daughter, both these being daughters of descendants, and the sister, she being a daughter of an ascendant father. (2) As regard property inherited from males, female heirs under the Bombay school are divided into two classes, namely:
(i) those who come into the gotra of the deceased owner, by marriage, i.e., the wife of the deceased and the wives of his sapindas and samanodakas ; and
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(ii) those who are born in the gotra of the deceased owner, but pass by marriage into a different gotra, and their daughters. This class includes a daughter, son's daughter, daughter's daughter, sister, niece, grand niece, father's sister, and the like.
The son's daughter, daughter's daughter, and sister are expressly mentioned as heirs in the Hindu Law of Inheritance (Amendment) Act 1929.
Females coming under class (i), such as window, mother, father's mother, father's father's mother, and widows of gotraja sapindas, eg son's widow, brother's widow, uncle's widow, etc, take a limited estate in the property inherited by them from males, and on their death, the property passes not to their heirs, but to next heir of the male from whom they inherited it. And this is so, even if such a female succeeds immediately after the death of another female who was the widow of a gotraja sapinda and who had previously inherited the property.
Females coming under class (ii), such as
a daughter, son's daughter, daughter's
daughter, sister, father's sister, niece,
grandniece, sister's daughter and the like, take the property inherited by them from males absolutely, i.e., they become full owners thereof.
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Such property becomes stridhana in their hands."
36. Therefore in the Bombay State, as regards property inherited from a male, those females who by marriage have entered into the gotra (family) of the deceased owner, take a limited estate, while other female heirs take absolutely wherever they are entitled. Consequently, a mother, a grandmother, and a widow of the propositus his daughter-in-law and the wives of gotraj sapinda take only a limited estate, whereas a daughter, a sister, a niece and grand-niece, and, in fact, any female relation borne in the family of the propositus take an absolute estate by inheritance to him, so as to become a fresh root of descent.
According to Dr. Sir Hari Singh Gour in his celebrated work "The Hindu Code", the right of a widow in the absence of a male issue is stated as follows:-
"316 (1) In a succession opening before the 14th day of April, 1937, the widow inherits the estate of her deceased husband in default of male issue, provided she be chaste when the succession opens.
(2) Where there are several widows all of them inherit the estate jointly with the right of
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partition for convenience of enjoyment and survivorship inter se.
(3) The widow inheriting to her husband or other relation takes only a limited estate."
37. A widow or other limited heirs is not a tenant-for-life, but is owner of the property inherited by her, subject to certain restriction on alienation and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. The principles relating to the nature of a widow's estate were reiterated by the Supreme Court in Jaisri V/s. Rajdewan (AIR 1962 SC 83) and Gogula Gurumurthy V/s. K.Ayyoppa (AIR 1974 SC 1702).
38. The estate taken by a Hindu widow in property inherited by her from her husband is called 'widow's estate', or woman's estate'. Certain peculiar features of a widow estate is that the estate taken by a widow in property inherited by her from her husband may be described as a 'limited estate' as she cannot sell the corpus of the property or otherwise alienate it, unless it be for legal necessity or for the benefit of the estate or with the consent of the next reversioners. Where however alienation is made by her for legal necessity or with the consent of the next reversioners, it
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passes an absolute estate to the alienee to the same extent as alienation made by full owner. Subject to the above restrictions on alienation, she holds the property absolutely, and she completely represents it. A widow cannot, by any act or declaration of her own, while retaining possession of her husband's estate, give her possession or estate a character different from that attaching to the possession or estate of a Hindu widow.
39. The heirs of the last full owner, who would be entitled to succeed to the estate of such owner on the death of a widow or other limited heir, if they be then living, are called 'reversioners'.
40. The interest of a reversioner is an interest expectant on the death of a limited heir and is not a vested interest. It is a spes successionis or a mere chance of succession within the meaning of s 6, Transfer of Property Act, 1882. It cannot, therefore, be sold, mortgaged or assigned, nor can it be relinquished. It is well known that a transfer of a spes successionis is a nullity, and it has no effect in law.
41. The death of the female owner opens the inheritance to the reversioners, and the one most nearly
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related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility or spes successionis. His right becomes concrete only on her demise; until then, it is mere spes successionis.
42. After 14/4/1937 under the provisions of the 1937 Act, the widow and predeceased son's widow and widow of predeceased son of predeceased son would take the same share as that of a son. This Act brought about a parity with regard to succession throughout British India where the widow was under the shastric law not entitled to succeed to the estate of her husband. However, with regard to Bombay province was concerned such a right was recognised under the shastric Law. Therefore no assistance can be drawn by the appellants by the fact that the 1937 Act was not applicable to the facts of the present case. Nevertheless the same is discussed as strong reliance was placed on section 4 of the Act to contend that the provisions of the Act would not enure to the benefit of Nagubai in the instant case.
43. According to Sir Hari Singh Gour, the position as ordained under the 1937 Act is as follows:-
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"315 "Notwithstanding the provisions of the Hindu law or custom to the contrary, the widow and the daughter-in-law of a man dying intestate, on or after the 14th day of April, 1937, shall inherit alongside of a man's descendants in the following manner and to the following extent, namely:
(1) If the man dies leaving him surviving his widow and his lineal descendants, his estate shall devolve upon them in equal shares;
(2) Provided that if a man dies leaving him surviving his widow and his predeceased son's widow but no son of such son, his daughter-in-law will share equally with his widow; (3) Provided further that if a man dies leaving him surviving his widow and his daughter-in-law, being the widow of his predeceased son, then she will take the share of his son's son, if there was surviving to him a son or grandson of such predeceased son; (4) If a man dies leaving him surviving his widow, his daughter-in-law and a grand-daughter-in-law, being the widow of his predeceased grandson, then such grand-daughter-in-law will take the share of his predeceased grandson, if his father survives him or
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if her husband survives his father and the latter predeceases the owner."
44. Under Sub Section (1) of Section 3 of the 1937 Act, where a male Hindu governed by Mitakshara law died intestate leaving separate property, his widow, or if there is more than one widow all his widows together, subject to the provisions of Sub Section (3) were entitled to a share in respect of the property as that of a son. Under Sub-section (2) of Section 3 thereof, where a Hindu governed by Mitakshara school, died having at the time of his death an interest in a joint family property, his widow had, subject to Sub Section (3) of Section 3, in the said property, the same interest as that of her husband. Under Sub Section (3) of Section 3, it was stated that any interest devolving on a Hindu widow under the provisions of the Act, was to be a limited interest known as a Hindu woman's estate, but having the same right of claiming partition as a male owner. Under Sub-section (4) of the said Act, it was stated that this Section would not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descended on a single heir or to any property to which the Indian Succession Act, 1925, applied.
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45. Section 4 clearly stated that the 1937 Act, would not apply to the property of any Hindu dying intestate before the commencement of this Act. Section 5 stated that for the purposes of this Act, a person was to be deemed to die intestate in respect of all the property of which he has not made a testamentary dispossession, which is capable of taking effect. This Act was repealed by Section 31 of the 1956 Act. Rights acquired and liabilities incurred under the Act are however not affected in view of Section 6 of the General Clauses Act. In view of Section 4 of the 1937 Act, the said Act was not retrospective in operation but applied to the property of any Hindu, who died intestate before the commencement of the Act, vide Umayal Achi vs. Lakshmi Achi [AIR 1945 FC 25].
46. The object of the 1937 Act, was to confer larger rights on a widow of a male Hindu in modification of the uncodified law as laid down in the shastric texts and interpreted by judicial precedents where such a right was not conferred on a widow under the shastric Law. The widow's estate was of limited interest but with power to claim partition as a male owner had the Act vested in the widow immediately upon her husband's death, the undefined and fluctuating interest in the joint family property, which
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he himself had till the moment of his death. She, therefore, got a share of the joint family property which she could enforce by way of partition.
47. Prior to the 1937 enactment, the widow of a person governed by Mitakshara had only a right of maintenance in respect of coparcenery property in which the husband had an interest except in certain Schools such as the Bombay School where she had a limited right or she would succeed to a limited estate on the death of her husband where there were no male heirs. But the 1937 Act gave a widow of a male Hindu a right to succeed to his share in the joint family property as a limited interest for her life, through-out British India. In respect of separate property left by her husband, she had only the right of maintenance when the husband had left a son, grandson or great grandson. She could inherit his separate property only in the absence of these immediate heirs. This position was however changed by augmenting her rights by virtue of the 1937 Act as discussed above. But, where the widow acquired interest in the husband's share of the joint family property by virtue of Section 3(2) of the 1937 Act, which was a limited interest, it transformed itself into a full ownership under Section 14 of the 1956 Act. As a result, the concept of
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'reversion' was abolished as a consequence of a women's estate being enlarged as full ownership where the limited owner possessed the property.
48. With the promulgation of the 1956 Act, the concept of notional partition was introduced when a male Hindu died intestate leaving behind a female Hindu as a Class-I heir under section 6 of the Act. Ofcourse, the said section has undergone a radical change with the amendment brought about in the year 2005 by which the term coparcenary is expanded to include a daughter as a part of it by birth just like a son. By virtue of the 1956 Act, the Doctrine of Survivorship has been completely diluted where there is a female Class-I heir. That apart, Section 14 of the Act states that where a female Hindu is possessed of any property whether acquired before or after, the commencement of the Act, the same shall be held by her as a full owner and not as a limited owner. Sub-section (2) of Section 14 however, excludes the concept of full ownership to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms thereof prescribe a restricted estate in such property.
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49. Applying the aforesaid principles to the facts ples of the instant case, the original propositus Venkat was cultivating the 'B' schedule properties as an Inam land granted in lieu of rendering Sanadi services. The exact date of his death is not known, but, it is admitted that he died much prior to the death of his second son Mahadeo, who died on 4/11/1935. Then the question would arise as to whether the property inherited by Laxman and Mahadeo was a separate property of the original propositus, in which they had an equal share or it was the property of the joint family. In the instant case, the 'B' schedule lands being emoluments attached to the village office, formed an impartible estate and when Venkat, the original holder of the village office died, the same was succeeded to by his sons, who survived him. The elder son, Laxman became the next holder of the office based on the doctrine of right of primogeniture. Having regard to the nature of grant and the lands being attached to the village office which were heritable as the office was hereditary in nature the schedule 'B' lands have to be considered as joint family properties.
50. In the instant case, Mahadeo died in the year 1935 and prior to the year 1937, during which point of time, the Hindu Law of Inheritance (Amendment) Act, 1929
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[hereinafter, referred to as the "1929 Act"], was applicable. Had the suit lands been available for partition, in other words, had the suit lands not been impartible then, in that case, on the death of Venkat the original propositus succession opened, Laxman and Mahadeo each were entitled to half-share in the suit properties. Since Mahadeo did not have any male heir, his half-share on his death was succeeded to his by female heir his widow as a life estate holder or a holder of a limited estate but succession did not open until the death of the life estate holder, namely, his widow. During the lifetime of his widow, the reversioner namely, Laxman and his heirs had no vested interest in the limited estate and they had a mere spes successionis. The point of time for the applicability of the 1929 Act is when succession opens that is when life estate terminates. In other words, the death of the Hindu female life estate holder opens the inheritance to the reversioners and the one who is most closely related at the time to the full owner becomes entitled to the estate. Under the 1929 Act, on the death of a Hindu female life estate holder opens the inheritance through the reversioners and the one most nearly related at that time to the last full owner becomes entitled to the estate. But in the instant case, the life estate holder namely,
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Mahadeo's widow Nagubai, became a full estate holder on the enforcement of the Hindu Succession Act, 1956, in terms of Section 14 of the Act. On her death, her daughters succeeded to her share as the right of the reversioners was abolished under Section 14 of the said Act. Therefore, the plaintiffs are together entitled to half share in the suit schedule properties.
51. In Ram Vishal (dead) by L.Rs and Others v. Jagannath [2004 (9) SCC 302], it has been held that the expression property possessed by a female Hindu in explanation to Section 14 (1) of the 1956 Act means that she must have a pre existing right for conferment of a full ownership and that a mere right of maintenance without actual acquisition in any manner is not sufficient to attract Section 14.
52. In AIR 1991 SC 1581 [Kalawatibai v.
Soiryabai], it has been held that a female Hindu possessed of the property on the date the Act came into force could become absolute owner only if she was a limited owner and not otherwise.
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53. The next aspect that requires consideration is the impact of The Karnataka Village Officers' Abolition Act, 1961 on the instant case. The said Act was enforced w.e.f. 1/2/1963. The object of the Act is to abolish the village offices which were held hereditarily. Under the said Act 'Holder of a village office' or 'holder' is defined to mean a person having an interest in a village office under an existing law relating to such an office. The proviso states that where a village office has been entered in a register or record under any existing law relating to such village office, as held by the whole body of persons having interest in the village office, the whole of such body shall be deemed to be the holder. Section 2(1) (b) defines 'authorised holder' to mean a person in whose favour the land granted or continued in respect of or annexed to a village office by the State or a part thereof has been validly alienated permanently, whether by sale, gift, partition or otherwise under the existing law relating to such office. 'Village office' is defined in Clause (n) to mean every village office to which emoluments were attached and which was held hereditarily before the commencement of the Constitution under an existing law relating to a village office, for the performance of duties connected with the administration or collection of the revenue or with the
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maintenance of order or with the settlement of boundaries or other matter of civil administration of a village, whether the services originally appertaining to the office continue or have ceased to be performed or demanded and by whatsoever designation, the office may be locally known.
54. Section 4 states that w.e.f. the appointed date i.e., 20/07/1961 all village offices have been abolished and all incidents attached to the said village offices are extinguished. Further, all land granted or continued in respect of or annexed to a village office by the State stood resumed by the State subject however, to regrant of land to the holder of the village office or authorised holders as the case may be. The provisions of the Act have been considered by a Division Bench of this Court in the case of Beerappa v. Fakeerappa Beerappa Bandrolli [2007 (1) KLJ 477 DB] wherein, it has been stated that where land was attached to the village office, the lineal primogeniture stood continued and the senior branch of the family would normally continue the village office. That the abolition of the village office resulted in the land vesting in the State subject to regant of the land, but the abolition of the village office does not affect the personal law of the officer. Till the village office was
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abolished, the land attached to the village office was impartible. It is only when the said land is regranted, that it would be available for partition and interest in the village office in a holder would include the right to survivorship as if it is a joint family estate. Therefore, even the junior members of a joint family has an interest in the village office and have to be considered as holders of the village office. Once the land attached to the village office is regranted, it becomes available for partition and even the junior branch of the joint family would be entitled to a share in the land granted to the family. A mere fact that an estate is impartible does not make it separate or exclusive property of the holder. Also, where a person succeeds to the village office as a holder, it does not become his separate property but it is a joint estate of the undivided family. Till the land is not regranted, it remains as impartible land and not available for division.
55. In AIR 1982 SC 887 [Nagesh Bisto Desai etc., v. Khando Tirmal Desai etc.] it has been held that on regrant of watan lands after its resumption to the holder for the time being of the hereditary office, the watandar is not entitled to remain in exclusive possession and enjoyment
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thereof to the exclusion of the other members of the joint Hindu family.
56. In the case of Shviappa Fakirappa Shetsanadi v. Kannappa Mallappa Shetsanadi [ILR 1987 Kar. 3155], it has been held that the normal rights of a member of a joint Hindu family are not affected by the Act. Interest in village office includes right to survivorship of members of the joint Hindu family. That after abolition of the village office and resumption of the land, it became a ryotwari land and only on regrant the land is released from the nature of impartibility.
57. In the instant case, the plaintiffs belong to the junior branch of the family while the defendants belong to the senior branch of the family. The land in question was attached to a village office for rendering sanadi service by the grandfather of the plaintiffs. It is also a settled position that the suit land was not available for partition till regrant as it was impartible estate. Even though the land is granted in favour of one or two members of the joint family it would enure to the other members of the joint family. On the demise of Venkat, both Lakxman and Mahadeo, being his sons had succeeded to the land by survivorship. Infact, the
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office held by Venkat's son Lakxman, on the demise of the former, was for and on behalf of the joint family members of the other family. The land was not available for partition till it was regranted. It has not been shown by the defendants that there was any partition amongst the joint family during the lifetime of Mahadeo or thereafter. In other words, the holder of the village office Venkat died intestate leaving behind two sons, Laxman and Mahadeo. Therefore, when Venkat died, succession opened. They had inherited the suit land by survivorship to an extent of half share each. Therefore, a vested right was created in both Laxman and Mahadeo to succeed to the half share. But, the suit land was not available for partition until the land was regranted after it stood vested in the State Government. Therefore, the family continued to be joint and for the sake of convenience, the family members of Laxman and Mahadeo were cultivating the portions of the suit land independently. Though Mahadeo died prior to the enforcement of the 1937 Act, his right to a half share in the suit land was not extinguished on his death. His legal representatives were entitled to his vested right in the suit land to an extent of half share which he had succeeded to on the principle of survivorship on the death of his father Venkat. Though there
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was no division of property by metes and bounds the joint family remained, as the suit land was impartible and therefore, there could have been no division of the said land by metes and bounds as the land was attached to a village office. But if the said land had been available for partition immediately on the demise of Venkat, then the right to succeed to half-share by Mahadeo by survivorship was a vested right. Then he would have become the sole surviving co-parcener as far as his branch is concerned as he had no male heir. Therefore, the suit land would have become his separate property to an extent of half-share and on his demise, his widow and two daughters would have inherited 1/3rd share each and on the demise of his widow in the year 1994, his two daughters would have succeeded to half-share each in the share of Mahadeo i.e, 1/4th share each in the entire suit land.
58. But since the suit land being attached to a village office was impartible, no partition could have taken place by metes and bounds between the sons of Venkat. The family continued to remain joint. After the enforcement of the Act, the land should vested in the State Government and the family lost all rights in the said land and then suit land was not available with the family. When the State
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Government regranted the land in the names of the successors of the original holder of the village office, namely Venkat, the land lost by the family was regained by the family and became available for partition. This regrant of land has to be related to the original holder of the village office as the original holder of the village office is entitled to regrant and on his demise his successor/s were entitled to apply for regrant. Therefore it must be deemed to have become available for partition on the demise of the original holder of the village office. It is in this context that in the decisions referred to above it has been observed that the regrant of lands attached to village office would enure to the benefit of the joint family. Therefore on the demises of the Venkat, the original holder of the village office, both his sons namely, Laxman and Mahadeo succeeded to the suit lands to an extent of half share each which created a vested right in them to an extent of half share each. After the re-grant of the said lands, it became available for partition and separate possession. Since Mahadeo had a vested right to succeed to half share in the suit lands on the demise of his father but could not claim separate possession of the said lands by metes and bounds on account of impartibility of the estate, the family continued to cultivate the lands joint family. But
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for the impartibility of the lands, it could have been divided by metes and bounds on the demise of his father. In the years thereafter the family lost all rights in the lands on the abolition of the village office and resulting in the land being vested in the State Government. The regrant of the lands in the name of one of the members of the family revived the right of the successors of the original holder of the village office to succeed to the lands. The death of Mahadeo in the intervening period did not extinguish his right to succeed to the suit lands as the order of regrant would relate back to the original holder of the village office. His demise opened the inheritance for his survivors to inherit the lands. Since the inheritance was postponed on account of the impartibility of the suit land and in the interregnum Mahadeo died would not imply that the heirs of Mahadeo had lost their right to inherit/succeed to the suit land.
59. The decision relied upon by the counsel for the appellant in N.Jayalakshmi Ammal and another v. R.Gopala Pathar and another [AIR 1975 SC 995], is not applicable to the facts of the present case, since the suit land was not available for partition till it was regranted in the year 1994. However, Mahadeo had succeeded to an undivided half share in the suit land on the demise of his father Venkat
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while the other half share was succeeded to by Lakshman the other son of Venkat.
60. Therefore, the trial Court was right in decreeing half share which was succeeded to by Mahadeo when his father Venkat died. The other half share was succeeded to by Laxman, the first son of Venkat, the original holder of the village office.
61. I find that the trial Court has rightly adjudicated on the shares to be allotted to the branch of the plaintiff's family and to the branch of the defendant's family namely, half-share in the suit scheduled property. However, the reasons assigned for the same are not in accordance with the settled principles of law. Therefore, the reasons for arriving at such a conclusion have been given in this judgment.
62. In the result, the appeal is dismissed. Parties to bear their own costs.
Sd/-
JUDGE Vmb/*mvs