1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.885 OF 2003 WITH CIVIL APPLICATION NO.1343 OF 2003 Namdeo Sitaram Nikalje Age: 45, Occ: Agriculture, R/o. Ambawade, Tal: Khatav, Dist. Satara ...Appellant. v. 1 Tukaram Sambhu Nikalje Since deceased, through his legal representatives: 1A Sambhaji Tukaram Nikalje & Ors. Age: 61 yrs., R/o. Ambawade, Tal: Khatav, Dist. Satara ...Respondents. Ms. Manisha Shekhar, adv. For the Appellant. CORAM : J.H. BHATIA, J. DATED : 25th September , 2009 P.C. 1 Heard the learned counsel for the appellant, who is original defendant. To state in brief, dispute is about Service Inam land Survey No.133/25 and 132/8 corresponding to Block No.763 and 780 respectively. There is no dispute that originally these lands was held by one Nayaku as service Inam land. Said Nayaku had four sons, Pira, Dada, Sambhu and Vithu. Dada had died issueless. Plaintiff no.1 is son of Sambhu and plaintiff nos.2 and 3 are sons of Sakharam and grandsons 2 of Sambhu. Plaintiff no.4 is grandson of Vithu. The present appellant/defendant is a descendant of Pira. Plaintiffs filed regular civil suit no.298 of 1988 for partition and separate possession of the suit land. According to them, in the year 1958, Inams were abolished by the Government as per the provisions of the Bombay Inferior Village Watans Abolition Act , 1958 (In short “The Act”) and as per provisions of the Act, same land was re-granted to the original Vatandar. Under the law before its abolition, Inam land would be recorded only in the name of eldest son of the family on the principle of primogeniture and accordingly, after death of Nayaku, it was recorded in name of his eldest son Pira and after the death of Pira, name of his grandson Ranu, was entered into the record and after death of Ranu, name of his widow Chandrabai was entered into the record. Later on said Chandrabai performed the second marriage and, therefore, the property was recorded in the name of Savitrabai mother of the deceased Ranu and widow of the deceased Manku. It is contended that even though the property was recorded in the name of Savitrabai, it was the coparcenary property in which all the sons and grandsons of the deceased Nayaku had acquired rights. It is contended that on 20.8.1962 Savitrabai had executed gift deed of the property in favour of her daughter’s son, who is defendant 3 but the gift deed was invalid and ineffective because till that time land was not re-granted in the name of Savitrabai and the land was belonging to the Government. Mutation Entry taken on the basis of gift deed was also cancelled. It is contended by the plaintiffs that possession of the defendant over the suit land is unauthorised. Plaintifffs asked for possession on 1.6.88 which was refused . Thereafter suit was filed for possession and alternatively for partition and separate possession. Defendant contested the suit. According to him, Savitrabai had become absolute owner of the property and the plaintiffs had no right or interest in the same. She had made gift of the property in favour of the defendant as her grandson and thus, he has become owner of the property. Plaintiffs have no right to seek possession by partition. 2 Several issues were framed and after hearing the parties, the trial Court held that defendant was in unauthorised possession of the land and the plaintiffs are entitled to partition and separate possession. It was declared that defendant, plaintiff nos.1 to 3 together and the plaintiff no.4 were entitled to 1/3rd share each in the suit property. Defendant preferred Regular Civil Appeal No.434 of 1994 against the judgment and decree passed by the trial Court. Appeal came to be dismissed. Appellate Court specifically held that suit lands were re-granted to Savitrabai for and on 4 behalf of the joint family and, therefore, suit property was joint family property of the plaintiffs and the Savitrabai. It also held that gift-deed executed by Savitrabai in favour of the defendant is null and void for want of prior permission under the Act. In the result, appeal came to be dismissed confirming the shares fixed by the trial Court. 3 There is no dispute that the suit land was the Inam land or Vatan land granted to the family of the plaintiffs prior to enactment of the Act. Vatan Inam was granted initially in the name of Nayaku as a head of the family. After the abolition of the Vatans, under Section 5 of the said Act, Vatan land resumed under Section 4, was re-granted to the Vatandars on payment of certain occupancy price. Section 5 (3) provided that land granted in sub-section (1) shall not be transferred or partitioned by metes and bounds without previous sanction of the collector and except on the payment of such amount as the State Government may by general or special order determine. Vatan lands were succeeded by the principle of primogeniture due to which even though the property was held by the joint family, it was recorded in the name of senior most member and on his death in the name of his eldest son or branch representing the eldest son. Taking into consideration the relationship between the parties, it is clear that Pira was the eldest son of 5 Nayaku and, therefore, after the death of Nayaku, property was recorded in the name of Pira and as his son, Manku had already died, after the death of Pira, property was recorded in the name of his grandson Ranu. After the death of Ranu, initially it was recorded in the name of his wife Chandrabai. However, as Chandrabai re-married, property was recorded in name of Savitrabai widow of the deceased Manku. It shows that the property was recorded in the name of members of the senior branch of the family of Nayaku. Under section 7 of the Act, special rule of succession in respect of Vatan land, which was contrary to the personal law governing the party came to be declared void. As a result, parties will be governed by the provisions of Hindu law in respect of succession. Hence, after the Act came into force in 1958, Hindu Succession Act would be applicable to the parties even in respect of suit property and not principle of primogeniture. In Annasaheb Bapusaheb Patil and Ors. vs. Balwant alias Balasaheb B. Patil (Dead) by LRS. and Heirs and Others (1995) 2 SCC 543, it was held that even though as per the principle of primogeniture, vatan land is re-granted and recorded in the name of senior branch of the family, property is joint family property and, therefore, members of the coparcenary or joint family are entitled to have share or right in the property. Same principle was enunciated in 6 Vithal Govind Toke vs. Drupadabai Chima Gaikwad 1999(1) Mh.L.J. 878 decided by the learned Single Judge of this Court. Therefore, Courts below were right in holding that even though land was re-granted in the name of Savitrabai under Section 5 of the Act, it was for whole of the family and the plaintiffs are entitled to share in the same but the property can not be partitioned without prior permission of the Collector. However, there is no absolute bar against the partition. The trial Court directed that decree of partition shall be effected only after obtaining necessary permission from the Collector, therefore, no illegality appears to have been committed by either of the Courts below. The learned counsel for the defendants/appellants contended that partition had taken place in 1932 and this property had come to the share of the senior branch. Both the Courts below rejected this contention. Infact prior to 1958 when the Act came into force, the land was not subject to partition and it would be recorded only in the name of senior branch of the family. Therefore, it can not be said that this property had come to the share of the branch of Pira in partition in 1932. 4 Taking into consideration the facts and circumstances and the legal position, I find no fault, illegality or irregularity in the findings of the Courts below. No question of law is involved in the present appeal. 7 Therefore, appeal stands dismissed. 5 In view of the dismissal of the appeal, Civil Application No. 1343/03 has become infructuous and stands disposed off accordingly. (J.H. BHATIA,J.)