Case: Kallappa Sultana Patil By L. R. S. Dandu Kallappa Patil and Others Vs. Balgonda Sultangouda Patil

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 Goudas branch had become Nashtamsha.9. Mr. Datar further contended that the expression Nashtamsha 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 the 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 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 Babaji Patils case (supra) 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 S.A. 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.10. From these decisions it follows that in 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 plaintiffs specific claim was that under the law obtaining in Kolhapur State, the 7th defendant was only the daughter of Maya Gouda and could and 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 the 7th defendant, the daughter of Maya Gouda was entitled to inherit the properties. All the Courts have accepted the plaintiffs plea and decreed his claim.11. Mr. Datar, learned counsel, referred us to the decision of the Division Bench of the Bombay High Court in Shivgonda Annasaheb Virgonda Patil v. Champebai Bharatar Sidgonda Deosaheb Shivgonda Patil. (Appeal No. 297 of 1957, from original decree, decided on 7-12-1962). That judgment was delivered on 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 Vathukuma 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."12. According to this decision, Maya Goudas 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.13. We may also refer to a Division Bench decision of the Mysore High Court in Sabmshail Ramachandra Kulkarni v. Gopal Govind Dattawad, ((1960) Mys LJ 441) 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 Shivgondas case, (Appeal No. 297 of 1957, from original decree, decided on 7-12-1962) 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.14. 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.1

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]t 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 Wala. In this case, though the plaintiff as the registered Nawa Wala was doing service, it is seen that the suit properties were in possession of Jakkawwa, the widow of Maya Gouda, who died about 35 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 Goudas branch had become Nashtamsha.10. From these decisions it follows that in 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 plaintiffs specific claim was that under the law obtaining in Kolhapur State, the 7th defendant was only the daughter of Maya Gouda and could and 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 the 7th defendant, the daughter of Maya Gouda was entitled to inherit the properties. All the Courts have accepted the plaintiffs plea and decreed his claim.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 thisMaya Gouda had left a daughter, the 7th defendant and as, in any event the appellants are the nearest reversioners entitled to the 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 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 Babaji Patils case (supra) 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 S.A. 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.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