Case: Shivagonda Subraigonda Patil And Ors Vs. Rudragonda Bhimagonda Patil And Anr

1. This is an appeal by special leave against the judgment of the Bombay High Court confirming the Judgment of the Assistant Sessions Judge, Kolhapur who reversed the judgment and decree of the civil judge of Junior Division at Gadhinglaj whereby the suit of the plaintiff-respondent was dismissed. The respondent had filed a suit against the appellant Shivagonda Subraigonda Patil and his sons Nijappa Shivagounda Patil, Virgonda Shivagounda Patil, Bhimapa Shivagounda Patil and Rayappa Shivagonda Patil with the allegation that on 27-5-1921 the first defendant, Shivagounda who was the karta of the joint family consisting of himself and his four sons, sold by a registered sale deed for a sum of Rs. 2400 the suit properties admeasuring 6 acres and 37 guntas out of R. S. No. 62/2 and 62/3 to the plaintiffs father Bhimgonda. The properties sold to the plaintiffs father were previously mortgaged and it was averred that the first defendant had undertaken to pay the mortgage debt and hend over the suit property to the plaintiffs father. It appears that part of the property out of R. S. 62/2 to the extent of four acres, 36 guntas was mortgaged to Hanmogond Balgonda Patil for Rs.1000 and two acres and one gunta out of S. No. 62/3 was mortgaged to Virgonda and four other persons. It was the case of the plaintiff that after the death of Hanmgond Balgonda the first defendant repaid the debt to his widow Gangabai and obtained possession of the hypotheca but instead of handing over possession to the plaintiffs father as stipulated in the sale deed he retained the possession. In respect of the other two acres and one gunta which was mortgaged to Virgonda and others he alleged that the first defendant redeemed the mortgage and handed over the possession to the plaintiffs mother as the guardian of the plaintiff who was then a minor and that after the plaintiffs mother got into possession of the property the Kolhapur government attached the property and took possession of it in 1928 on the ground that the mortgage in favour of Virgonda and others was contrary to Wat Hukums. However, it appears that on or about 3-3-51 attachment was vacated but the possession of this land was handed over by the collector to the first defendant instead of the plaintiff from whose possession it was taken. It was the plaintiffs case that both in respect of the property that was mortgaged to Hanmgonda Balgonda and that which was mortgaged to Virgonda and others it was the first defendant that retained possession of the said lands contrary to the stipulation and the sale effected in favour of the plaintiffs father. It was also the plaintiffs case that Bhimgonda who was a hissadar bhauband of the suit land which was a part of Patilki watan inam land on the date of the sale deed dated 27-5-21 was entitled to claim possession of the property on the strength of his title deed; as such the revenue court erred in handing over possession of the portion of the suit property to the first defendant on 3-3-51.2. The first defendant respondent No.1 contended in his written statement that the suit being patilki watani service inam property, its transfer was declared by Wat Hukums of the Kolhapur State to be illegal and void because neither the plaintiff nor his father was either the nawawala of the patilki watani service inam lands or the male members of the senior branch of the senior family. It was also contended that the mortgage in 1915 by the first defendant in favour of Hanamgonda was also contrary to wat hukums and therefore void. Even apart from this defect the suit property was never in the possession of the deceased Hanamgonda in his capacity as the mortgagee but that it has always been in his possession as the owner thereof. Accordingly the suit was barred by limitation. On these pleadings several issues were framed but for the purposes of this appeal having regard to the arguments addressed before us only two issues are relevant, namely whether the sale under exhibit 37 in favour of the father was void under the then prevailing law in Kolhapur State and whether the suit was in time. It may be mentioned that the trial court had dismissed the suit of the plaintiff but the District Judge in appeal allowed it, set aside the decree and remanded the suit to the trial Court for fresh disposal according to law with the direction that the parties should be allowed to amend their pleadings. After remand, the trial Court reframed the issues having regard to the amendment of the pleadings but in so far as the issues with which we are concerned it held against the plaintiff and again dismissed the suit. The plaintiff appealed to the District Court which allowed the appeal holding that the impugned alienation was legaland did not offend any of the provisions of the wat hukums that were in force and that the suit was within time. The appeal to the High Court of Bombay was unsuccessful. The High Court held that under the law in force alienation of service inams were alone declared to be invalid but since the subject matter under appeal did not pertain to the service inam land, the alienation was not void, nor was the suit barred by reasons of the defendants adverse possession.

Reasoning:
5. On the other question namely whether the suit is barred by limitation, we are of the view that it is not. The facts as narrated will show that in one case possession was given to the plaintiffs widow after the mortgage was redeemed.But the Collector under a misapprehension effected a forfeiture and took possession but subsequently perhaps realising the mistake, released the property but handed over possession to the wrong person namely the defendant. It is only after that, that a right would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on the ground of his title. There is no validity in the submission made on behalf of the defendant that the plaintiff was out of possession from 1928 till the date of suit - April 17,the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258   at p.the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258   at p.the Full Bench was dealing with was the question whether under the wat hukums of the Kolhapur State, the sanadi inam land which was impartible reverts to the State on the death of the holder, and after an examination of all the wat hukums it expressed the view that whatever the restrictions may be upon that land which does not make the property the absolute property of the watandar, that property does not revert to the State but descends to the next heir by the rule of primogeniture.We are not concerned with that aspect of the matter but only with the question whether the alienation in favour of the plaintiffs father was valid, and we think on the construction of the various wat hukums that it was not. We agree with the Full Bench that the Bombay Hereditary Offices Act (Watan Act) did not apply to the Kolhapur State so as to override the specific directions of the wat hukums which had legal and binding force in that State. It may be observed that notification ofwhereby certain laws in force in what was then British India were applied in toto with modifications but the Watan Act is applied only "to go according to the obvious meaning or import". What was perhaps intended was that where there were no specific hukums the general principles of the Watan Act may be applicable. At any rate in this case as there is a specific prohibition from alienatingand other similar inams we need not rely on the provisions of the Bombay Act.