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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 `954-55 when there was severance of status amongst the brothers and their ancestral house was partitioned between them, the family was a joint family and the land was the joint family property, though it was a Watan land, succession to which was governed by the rule of primogeniture, and the land was also impartible. Impartible property is joint family property. But two out of the three principal incidences of the joint family property cannot be enforced in respect of such property. The incidence of partition is inconsistent with the tenure of the property being impartible and cannot be enforced. Similarly, the incidence of joint enjoyment devolves upon the eldest member of the eldest line by reason of the rule of primogeniture by which it devolves. But the property still remains to be a joint family property. The right to take property by survivorship subject to the incidence that it devolves upon the eldest line is still enforceable. Once the tenure of the property is altered the right to claim partition and the right to claim enjoyment would become enforceable as if they were in suspense during the time that the property by tenure was impartible and devolved by primogeniture. (Vide Sm. Sanja Bandaji v. M/s. Ahmedabad Jaybharat Cotton Mills Ltd., ). It is, therefore, clear that the land was the joint family land belonging to the three brothers till the abolition of the Watan on 20th January, 1959 with this difference that till 1954-55 when the severance of status took place between the brothers, it was joint family property held by the joint family, and after the severance of status the land was held by the three brothers as tenants-in-common. Nevertheless, it continued to be the joint family land with each of the three brothers having 1/3rd share in it. On the date of the coming into force of the Act, that is to say on 20th January, 1959, the land was a joint family land in which each brother had a specified share viz, 1/3rd.

6. The question, however, is whether this character of the land changed after the Watan was abolished and the land was resumed under Section 4 of the Act and regranted to Dagdu on payment of occupancy price under Section 5 of the Act. It is common ground that the occupancy price was paid by Dagdu. It is contended on behalf of the defendants that because the regrant was to Dagdu on payment of occupancy price by him alone, it was his self-acquired property, while the contention of the plaintiff is that even after the resumption of the land on abolition of the Watan and its regrant in the name of Dagdu, it did not shed its character as joint family land held by the three brothers as tenants-in-common. The question, therefore, for consideration is whether after the abolition of the Watan, resumption and regrant of the land to the Watandar of the Watan take away the character of the land as a joint family land and the land becomes the self-acquired property of the Watandar-grantee.

(3) subject to the provisions of Sections 5, 6 and 9 all watan land shall be and is hereby resumed and shall be subject tot he payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unalienated land :
Provided that such resumption shall not affect the validity of any alienation of such watan land made in accordance with the provisions of the existing watan law or the rights of an alliance thereof or any person claiming under or through him."

8. It is, however, argued that sub-section (3) of Section 4 provides for resumption of the land and inasmuch as on resumption the land vests in the Government, it extinguishes every interest which any person may claim either as a member of a joint family or as a tenant-in-common. In the first place, the Act nowhere provides that the land on resumption shall vest in the Government person. It is true that sub-section (3) of Section 4 says that all Watan land shall be and is resumed, but this resumption is subject to the provisions of Sections 5, 6 and 9 of the Act. Moreover, proviso to sub-section (3) also saves the rights of alienees and persons claiming through them, provided of course the alienation is made in accordance with the existing Watan law. Now, Section 5, with which we are concerned in this appeal, provides that a Watan land resumed under Section 4, in cases not falling under Sections 6 and 9, shall be regranted to the Watandar of the Watan to which it appertained on payment by or on behalf of the Watandar to the State Government of the occupancy price equal to three times the amount of full assessment of such land within the prescribed period and in the prescribed manner, in which case the Watandar shall be deemed to be an occupant within the meaning of the Bombay Land Revenue Code. It is, therefore, obvious that under Section 4 (3) the Watan land is to be resumed, subject to the condition that if the Watandar of the Watan pays occupancy price within a prescribed period and in a prescribed manner, then he is to be the occupant of the land from 20th January, 1959, the date on which the Watan is abolished. The effect of sub-section (3) of Section 4 read with Section 5, therefore, is that the Watandar who held the land as Watan land subject to the rule of primogeniture and impartibility till 20th January, 1959, would be holding the land as an occupant under ordinary law. All, therefore, that the Act does, is that it effects a change in the tenure or the character of holding as Watan land, but it does not affect the other incidents of the property according to personal law. In other words, the property continues to be the joint family property or the property held by the tenants-in-common, as the case may be. This resumption of the Watan land, as I have already indicated, is also subject to the provisions of Section 6 of the Act which provides for regrant of Watan land to authorised holders. "Authorised holder" is defined in Section 2(1) (ii) meaning a person in whom vests the ownership of a watan land which has been validly alienated permanently by the Watandar whether by sale or gift or otherwise, under the existing Watan law. No, Section 6 says that if any Watan land held by such an authorised hold is resumed under Section 4 of the Act, it shall be regranted to the authorised holder on payment of occupancy price mentioned in Section 5 of Act, and all the provisions of Section 5 shall apply in relation to such regrant. Here again, though a Watan land held by an authorised holder is resumed under Section 4 of the Act on abolition of the Watan, the interest which became vested in the authorised holder on account of valid and permanent alienation made by the Watandar continues, inasmuch as Section 6 requires that such a land shall be granted to the authorised holder on payment of occupancy price as provided for by Section 5 of the Act. Section 6 also, therefore, does not effect any change in the rights which the authorised holder had on the date of the abolition of the Watan and resumption of the land. Coming to Section 9, subject to which also Watan is to be resumed under Section 4 (3) of the Act, that section provides for the summary eviction of unauthorised holders and regrant of the Watan land to them in certain circumstances. This section provides that if the State Government is of opinion that in view of the investment made by such an unauthorised holder in the development of the land or in the non-agricultural use of the land or otherwise, the eviction of such holder from the land will involve undue hardship to him, the Government can direct the Collector to regrant the land to such a holder also on payment of such amount and subject to such terms and conditions as the State Government may determine and the Collector shall regrant the land accordingly to such hold also. Now, Section 2(1) (x) defines "unauthorised holder". The expression means a person in possession of a Watan land without any right or under a lease mortgage, sale, gift or any other kind of alienation thereof which is null and void under the existing Watan law. But even in such a case, Section 9 says that if the Government is satisfied, the Collector shall regrant the land to such an unauthorised holder also subject to such terms and conditions as the Government may determine. But it is material to note here that Section 5 of the Act does not apply to such cases, with the result that an unauthorised holder who is in wrongful possession of the Watan land would become a lawful holder thereof only from the date on which the Government regrants it to him on certain terms and conditions, and not from the date of the abolition of the Watan and the resumption of the land, unless of course the terms and conditions on which the land is regranted provide that the regrant would take effect from that date. The examination, therefore, of Sections 4, 5, 6 and 9 of the Act, reveals that even though the Watan is abolished and its incidents are extinguished under the Act and the lands are resumed under Section 4 of the Act, the Act maintains the continuity of the interest in the lands of the persons before and after the coming into force of the Act, provided of course the holder pays occupancy price. What the Act does is only to effect a change in the nature of the tenure or in the nature of the holding in that before the abolition of the Watan the land was being held by the Watandar in consideration of rendering service and non-payment of assessment, but after the abolition of the Watan and its incidents he holds it in consideration of the payment of occupancy price and the land revenue. It does not effect any other change in any other rights of the holders in such lands. If this view is correct, then in the instant case even after the abolition of the Watan and resumption and regrant of the land to Dagdu, it continued to be the joint family land held by the three brothers as tenants-in-common in specified shares, viz., 1/3rd each, therefore, the plaintiff would be entitled to 1/3rd share in it.