Appeal No 1560 of 1966
Appeal by special leave from the judgment and decree dated September 11 1961 of the Mysore High Court in Second Appeal No B 43 of 1956
RB Datar and SN Prasad for the appellants
R Gopalakrishnan and DP Mohanty for the respondent
343 The Judgment of the Court was delivered by Vaidialingam J
This appeal by special leave by defendants 1 to 4 is directed against the judgment and decree dated September 11 1961 of the Mysore High Court in SA B No 43 of 1956 confirming the decrees of the two Subordinate Courts granting a decree for possession in favour of the plaintiff respondent
The respondent instituted suit No 1 of 1945 before the Second Class Sub Judge at Chinchali for recovery of possession of the suit lands
According to the plaintiff the lands are Patilkiwatan Inam lands and he has been registered as Nawa Wala  by order No 68 dated March 30 1927 of the Revenue Authorities of the then Kolhapur State
The suit properties had gone in partition to one Maya Gouda a member of the Patil family
Maya Gouda died about 35 or 40 years ago
and his widow Jakkawwa was in possession of the lands till the date of her death on August 16 1943
The plaintiff s further case was that though Maya Gouda and Jakkawwa had a daughter Bayabai the 7th defendant in the suit the latter could not inherit the inam properties under the law obtaining in Kolhapur State
Therefore the line of Maya Gouda has become extinct and the plaintiff as Nawa Wala is entitled to
get possession of the properties as per the Wat Hukum No 26 of Fasli 1323
Defendants 1 to 4 the appellants herein contested the claim of the plaintiff on various grounds
They pleaded that the plaintiff was not the senior most member of the senior branch of the family to which Maya Gouda belonged and that they were the nearest reversioners under Hindu Law to the properties of Maya Gouda
They further pleaded that there was no extinction of the line of Maya Gouda as he had left a daughter the 7th defendant behind him
They also
claimed title by adverse possession
The trial Court by its Judgment and decree dated February 10 1949 negatived the plea of adverse possession raised by the appellants
It further held that the expression Nashtamsha  in  the relevant Wat Hukum means that there is no direct male descendant to inherit the properties of the deceased
For this proposition the trial Court relied upon a judgment of the Kolhapur High Court in SA No 210 of 1947
On this interpretation it held that the line of Maya Gouda had become extinct with regard to the Inam lands according to law as the 7th defendant the daughter could not inherit the properties
The trial Court further held that the plaintiff defendants 1 to 4 and the deceased Maya Gouda were members of one and the same family and that this fact had been admitted by both the parties
In the end the trial Court decreed the claim of the plaintiff to get possession of 344 the suit properties and passed a decree to that effect against the defendants
Defendants 1 to 4 filed an appeal before the District Judge Kolhapur which appeal was later transferred to
the District Judge Belgaum in view of the merger of Kolhapur State with Bombay
The said appeal No 403 of 1949 was disposed of by the Second Extra Assistant Judge Belgaum by his decree and judgment dated March 24 1952
The Assistant Judge was of the view that the suit will have to be remanded for fresh consideration and for this purpose certain issues were framed and parties given opportunity to adduce further evidence
The plaintiff challenged this order of remand passed by the Assistant Judge before the High Court of Bombay
The Bombay High Court by its judgment dated July 21 1953 set aside the remand order passed by the Assistant Judge of Belgaum and directed the District Court to dispose of the appeal according to law
The Assistant Judge of Belgaum by his judgment dated January 29
1954 disposed of CA 403 of l 949 confirming the decree and judgment of the trial Court
The learned Judge held that the plaintiff had been registered as the Nawa Wala of the branch of the family consisting of himself the defendants and the deceased Maya Gouda and Jakkawwa with respect to the 8 annas  share of the Maratha Patils
He further held that the Civil Courts had no jurisdiction to go behind the order of the Revenue Authorities recognizing the plaintiff as Nawa Wala in view of section 3 of the Kolhapur Revenue Jurisdiction Act
On the questionn whether Maya Gouda s branch has become Nashtamsha as mentioned in the Wat Hukum the learned Judge held that the Kolhapur Courts had consistently interpreted the said expression to mean that a branch became Nashtamsha with respect to Watan Properties when the deceased person left behind him no sons
As authority for this proposition
the Court relied upon the decision of the Kolhapur Supreme Court in Dada Babaji Patil vs Kalgonda Babgonda Patil1
The Court also referred to the later decision in SA 210 of 1947
relied on by the trial Court
On this interpretation the Court held that in spite of Maya Gouda having left behind him his daughter the 7th defendant his line should be considered as Nashtamsha so far as the Watan properties were concerned and in consequence the plaintiff as Nawa Wala was entitled to get possession of the properties
The finding that the defendants had not completed title by adverse possession was accepted by the Court
In this view the appeal filed by defendants 1 to 4 was dismissed
Defendants 1 to 4 filed a second appeal before the Bombay High Court which appeal on reorganisation of the States was 1 1945 Kol
LR 541
345 transferred to the Mysore High Court and registered as Second Appeal No 43 B of 1956
The Mysore High Court by its judgment dated September 11 1961 has confirmed the decisions of the Subordinate Courts accepting the claim of the plaintiff and dismissed the second appeal
Mr RB Datar learned counsel for the appellants urged two contentions 1  The view of the High Court that the right to Watan properties goes along with the service to be performed by the person registered as Nawa Wala is erroneous and is contrary to the Wat Hukum No 26 of Fasli 1323
2 The view of the High Court and the two Ssubordinate Courts that there is Nashtamsha in the line of Maya Gouda is errcneous as apart from there being the daughter the 7th defendant the appellants are also heirs being the nearest reversioners and as such entitled to succeed
We may deal with both the contentions together
It is no doubt seen that the High Court has proceeded on the basis that the right to
Watan properties goes along with the duty to perform the services and therefore prima facie the person who is required to do the services must be entitled to the property
But a reference to the Wat Hukum No 26 indicates that all the properties need not necessarily be with the person doing the service and that the service is to be taken from persons in the eldest branch regarding Patils and that it is not to
be taken by other sharers
It further provides that as service is not to be taken from bhauband local fund and judi of their share should be recovered by the village Officers along with Government land revenues to be credited to the Government for payment to the person registered as Nawa Wain
In this case though the plaintiff as the registered Nawa Wain was doing service it is seen that the suit properties were in possession of Jakkawwa the widow of Maya Gouda who died about 30 or 40 years ago
That the property must go with the service is only one of the reasons given by the High Court for holding against the appellants
But this reasoning does not vitiate the conclusions arrived at by the learned Judges that the plaintiff was entitled to get possession of the properties as Nawa Wala under the Wat Hukum as Maya Gouda s branch had become Nashtamsha
Mr Datar further contended that the expression Nashtam sha  occurring in the Wat Hukum means a total absence of heirs in the sense that there is nobody to succeed under Hindu Law to the estate of Maya Gouda
As Maya Gouda had left a daughter
the 7th defendant and as in any event the appellants are the nearest reversioners entitled to succeed to the estate of Maya Gouda under Hindu Law it cannot be stated that the line of Maya Gouda has become extinct so as to enable the plaintiff to 346 recover possession of the properties
It is common ground that the Wat Hukum provides for the Nawa Wala taking possession of the properties if the family of a particular holder of Watan lands becomes Nashtamsha
The expression Nashtamsha  has come up for consideration before the Courts in Kolhapur
The Supreme Court of Kolhapur in Dada Patil s Case 1 had to consider the question whether the expression Nashtamsha  means complete and total absence
of direct lineal heirs
In that decision after the death of the holder his widow inherited the lands and remained in possession till her death
On the death of the widow the reversionary heirs of the deceased holder under Hindu Law entered into possession of the properties
The plaintiff in that case who had been registered as the Nawa Wala by the Revenue Authorities sued to obtain possession of the lands and the claim of the plaintiff was allowed by the Court holding that the existence of the reversionary heirs did not take the case out of Nashtamsha  as provided in the Wat Hukum
The above decision was also followed in the same Court by Lokur J in SA 210 of 1947 who held that if there is no direct male descendant then that case should be considered as Nashtamsha 
We have already referred to the fact that these two decisions have been followed by the trial Court as well as by the Assistant Judge on appeal
From these decisions it follows that in the Kolhapur State the succession to Watan properties was not governed by the ordinary Hindu Law but by Wat Hukum No 26 and on the interpretation placed by the Courts in that State there will be Nashtamsha  when a person dies without leaving behind him any sons
That is the position in the case before us
As pointed out earlier Maya Gouda died leaving his daughter the 7th defendant but no sons
The 7th defendant possibly could not inherit the Watan properties according to the decision of the Courts in Kolhapur State
The plaintiff s specific claim was that under the law obtaining in Kolhapur State the 7th defendant was only the daughter of Maya Gouda and could not inherit the properties and that he as the Nawa Wala was entitled to recover possession of the properties
On the other hand defendants 1 to 4 specifically pleaded that the 7th defendant the daughter of Maya Gouda was entitled to inherit the properties
All the Courts have accepted the plaintiff s plea and decreed his claim
Mr Datar learned counseL referred us to the decision of the Division Bench of the Bombay High Court in Shivgonda  Appasaheb Virgonda Patil vs Champabai Bharatar Sidgonda  Racsaheb Shidgonda Patil 2
That judgment was delivered on 1 1945 Kol
LR 541
2 Appeal N9
297 of 1957 from original decree decided on 7 12 1962
347 December 7 1962 and a certified copy of the same has been placed before us
The learned Judges have observed Whatever may have been the interpretation of the Vathukums in Kolhapur State so far as this Court is concerned it is well settled that Nashtamsha  does not mean a man dying without male issue but it means a man dying without leaving any heir
Accordingly therefore unlike the authorities in Kolhapur State this Court held that as long as there was a single heir whether male or female to the deceased it does not result in Nashtamsha  of the line According to
this decision Maya Gouda s branch cannot be considered to be Nashtamsha  as he has left his daughter the 7th defendant as his heir and she will be entitled to inherit the Watan properties
We may also refer to a Division Bench decision of the Mysore High Court in Sambaii Ramachandra Kulkarni vs Gopal Govind Dattaward1 wherein the Mysore High Court has not agreed with the view of the Bombay High Court expressed in an earlier decision similar to the view taken by the Bombay High Court in Shivgonda s case2 that the expression Nashtamsha  has to be interpreted as meaning that a holder has left no heirs at all who can inherit his estate under the Hindu Law
It is not necessary for us in this case to
resolve the conflicting views noted above
Whatever may be the interpretation the appellants will not be entitled to inherit the properties of Maya Gouda
Because if the view of the Kolhapur Courts is accepted the plaintiff as the Nawa Wala is entitled to get possession and if the Bombay view is accepted it is the 7th defendant who will be entitled to inherit the watan properties of her father Maya Gouda
In either case the appellants cannot inherit the watan properties of Maya Gouda and thus they are out of the picture
The 7th defendant against whom also a decree for possession has been passed did not contest the claim of the plaintiff
Nor did she file any appeal against the decree of the trial Court
It has to be further noted that even the appellants have not made her a party either before the first Appellate Court or in the High Court or even before this Court
In the result the appeal fails and is dismissed with costs
VPS Appeal dismissed
1 2 Appeal No 297 of 1957 from original decree decided an 7 12 1962


Summary:
The suit lands were patilkiwatan lands in the erstwhile State of Kolhapur
Under the wat hukum No 26 of Fasli 1323 the service was to be performed by persons in the eldest branch but the properties need not necessarily be with the person doing the service
Thus though the respondent was registered as the Nawa wala and was doing service the properties were in possession of another branch
The widow of the last holder of the properties in that branch died in 1943 leaving a daughter
The respondent thereupon filed a suit claiming the properties on the ground that under the wat hukum the other branch had become Nashtamsha that is extinct because there was no direct male descendant and that he was entitled to get possession of the properties from the appellants
who were in possession
The suit was decreed by the Subordinate courts and the High Court
In appeal to this Court HELD In Kolhapur State succession to watan properties was governed by the war hukum and not by ordinary Hindu law
In Dads Babaji Patil vs Kalgonda Babgonda Patil 1945 Kol
LR 541 a decision of the Supreme Court of Kolhapur followed in SA No 210 of 1947 by the High Court of Kolhapur it was held that a branch became Nashtainsa when the deceased person left behind him no sons
But according to Shivgouda vs Champabai Bharatar Siaganda App
No 29757 dt 7 12 1962 of the Bombay High Court a branch cannot be said to be Nashtamsha if the last holder leaves a daughter
But whatever may be the correct interpretation the appellants could not succeed because if the view of the Kolhapur courts is accepted the respondentas Nawa wala was entitled to get possession and if the Bombay view is according to Shivgonda vs Champabai Bharatar Siaganda App
No 29757 who would be entitled to inherit the watan properties
348 B E 349 B E G Sambaji Ramachandra Kulkarni vs Gopal Govind Dattawad  referred to