Case: Smt. Krishnabai Bhritar Ganpatrao Deshmukh Vs. Appasaheb Tuljaramarao Nimbalkar and Ors

By a registered document, dated July 25, 1902 (Ex. 39), executed by Narayanarao, six Desgat lands situated in villages Nanandi, Umarani an d Nandikurli totalling about 120 acres, were received by Ramachandrarao, for separate living and maintenance of himself and his male lineal descendants. Out of the lands covered by the said deed, three lands comprised in Survey Nos. 114 (26 acres -30 gunthas), 115 (9 acres-38 gunthas) and 116 (26 acres-34 gunthas), totalling about 63 acres and 22 gunthas, situate in the area of village Umarani, Taluka Chikodi, are the subject-matter of the suit, out of which this appeal has arisenThe respondents herein, who are the grand-sons and great grandsons of Narayanarao, on July 24, 1960, instituted Suit No. 26/60 in the Court of Civil Judge, Belgaum against Smt. Krishnabai, appellant, for possession of the said lands and for recovery of past and future mesne profits, with these allegations: (i) that the suit lands were Desgat Watan lands and were part of the Desgat Watan estate of Nanandi, (ii) that by virtue of an ancient and immemorial family and territorial custom, the D esgat estate of Nanandi was impartible and descended from generation to generation to the senior most member by the rule of primogeniture, while the junior members of the family were only given some lands for their maintenance by the holder of the Desgat for the time being; (iii) that till his death, the appellants father continued to be an undivided member of the Joint family consisting of himself and the plaintiffs; and (iv) that on July 31, 1956, a partition by metes and bounds has taken place between the plaintiffs inter se under a partition deed.The suit was resisted by the defendant-appellant. She denied the alleged ancient, family and territorial custom of primogeniture. She denied that the property form ed part of the Desgat Watan estate of Nanandi. She further denied that her father, Ramachandrarao, came into possession of the suit land for his maintenance. She further pleaded that Ramachandrarao and his brother Narayanarao had separated during their life-time and the suit lands and some other lands were given to Ramachandrarao in the partition between the two brothers towards a part of his share, and it was agreed that the share of Ramchandrarao in other family properties would be separated and settled at some future convenient time. She further stated that since 1902, Ramachandrarao was in separate possession and enjoyment of the suit lands till his death on January 20, 1955, and that at the time of his death he was not an undivided member of the joint family of himself and the plaintiffs. She further pleaded that on her fathers death she succeeded to the suit lands, which were his separate property. She further relied on the Bombay Pargana and Kulkarni W antans (Abolition) Act, 1950 (Bombay Act No. 60 of 1950), (for short, called the Act), and the re-grant of the land made in favour of her father, under that ActThe learned trial judge by his judgment, dated September 29, 1962, dismissed the respondents suit with these findings:(a) that the alleged custom of impartibility and devolution of property by the rule of primogeniture had not been proved;(b) that there was a severance of the joint family consisting of the two brothers, in 1902, when they had agreed to separate, that since then for about 53 years till his death in 1955, Ramachandrarao was living separately and enjoying the suit land as his separate) that the suit lands w ere originally Watan lands, but they were not so at the date of the suit because the Bombay Act 60 of 1950, which came into force on May 1, 1951, had abolished Watans and thereafter the suit lands were, on the application of its holder, Ramachandrar ao, regranted in his favour; that the plaintiffs were aware of Ramachandraraos application for the regrant and they had tacitly assented to the regrant in his favourAggrieved, the plaintiffs preferred an appeal in the High Court of Mysore. The High Court affirmed the finding of the trial court, that the custom pleaded by the plaintiffs with regard to the impartibility of the property had not been established. It observed that "the onus of proving partition is on the defendant, "but the only evidence in support of her case that Ramachandrarao was divided, is Exhibit No. 39". The High Court construed the deed (Ex. 39) with the aid of its translations into English, one made by the trial judge and the other by the High Court Translator. It then took note of these features in support of the theory of partition:"(a) Permanency of the arrangement. The deed provides that Ramachandrarao and his descendants in the male line shall enjoy the property from generation to generation without interference from the grantor(b) Cesser of commonsality. The deed says that Ramachandrarao desired to live separately and therefore the lands were granted to him. The evidence is that Ramachandrarao lived separate from 1902. There is no evidence to the contrary."It then listed these features to negative the theory of partition:"(a) The nomenclature of the deed. It is styled as a deed of maintenance(b) It was executed by one of the parties only. If it was intended to be a partition deed it would have been executed by both the parties each relinquishing his rights in the properties not allotted to) The deed says that the lands were given to the grantee and his descendants in the male line for maintenance only and they should enjoy the lands continuously(d) The total extent of the Desgat lands was over eight thousand acres; if partition was intended, Ramachandrarao who was entitled to a one-half share would not have been contented with 90 acres valued at Rs. 3, 400/-."After cataloguing these pros and cons the High Court concluded:"In our judgment, Exhibit 39 considered along with the circumstances in which it was executed, does not establish the defendants case that Ramachandrarao was divided from Narayanarao in 1902 and that the suit lands, among others, were allotted to Ramachandraraos share. We are of the view that on the erroneous but honest belief that Desgat was an impartible estate, Narayanarao granted the lands to Ramachandrarao and his descendants in the male line in lieu of their maintenance. When Ramachandr arao died without male issue, the interest granted ceased or the tenure came to an end. The plaintiffs who are the surviving members of the family are entitled to resume the lands."Although no such plea was taken by the plai ntiffs in the plaint, the High Court held that in view of Section 90 of the Indian Trust Act, the regrant made, after the abolition of Watans, under the Act in favour of Ramachandrarao must ensure for the benefit of the family of the Watandars including the plaintiffs, because Ramachandrarao at the time of his death was holding the suit land as an undivided member of the joint family, for his own benefit and that of the other members of the undivided familySince there was no evidence as to the occupancy price paid by Ramachandrarao to obtain the regrant, the High Court, after allowing the appeal and setting aside the decree of the Trial Court, remanded the matter to the court below, with a direction that it should ascertain the amount of occupancy price paid by Ramachandrarao, and then pass a decree for possession in favour of the plaintiffs subject to the repayment of the said amount.Hence this appeal by the defendant on the basis o f a certificate granted by the High Court under Article 133(1)(e) and (c) of the Constitution.

Reasoning:
We are unable to accept this argument. It has to be borne in mind that this document has been let in evidence more than 70 years after its execution. Narayanarao and Ramchandrarao and all others who might have given evidence with regard to the circumstances of this recital in particular, and the deed in general, are long deed and gone. There is no dearth of authority for the proposition that in such a situation, it is permissible to draw reasonable inferences to fill the gaps or details obliterated by timeWe are in agreement with the trial court that the expressions "Potgi" (maintenance) or "Nirwahkrit" in the deed cannot be construed as conferring an estate with restricted rights of ownership, limited to the lifetime of Ramchandrarao and his linear male descendants. The deed evidence a permanent transfer or allotment of about 118 or 120 acres of land to Ramchandrarao to be enjoyed from generation to generation to the entire exclusion of Narayanarao and his descendants. In terms, Narayanarao did not reserve any right of reversion in favour of himself and his branch in any circumstances. Irrigation rights also with regard to the land transferred or allotted under this deed, were divided. It was further provided that from the date of the deed, payment of Joodi to the Government in respect of this land, shall also be the exclusive liability of Ramchandrarao and his descendantsThe inference that this land, measuring about 118 acres was given to Ramchandrarao in partial implementation of division of joint family status or partition, receives further confirmation from the following circumstances: (a) From the date of the deed, Ex. 39, till Ramchandraraos death in 1955, for a period of about 53 years, the lands disposed of by the deed, throughout remained in the full, exclusive and uninterrupted enjoyment of Ramchandrarao. The relevant entries in the revenue records during this period, also, stand exclusively in his name as owner-in-possession thereof. (b) After the abolition of Watans in 1951, Ramchandrarao alone applied for regrant of this land in his favour, under the Watan Abolition Act. The plaintiffs were at all material times, admittedly aware that Ramchandrarao had applied for the regrant of this land exclusively in his favour, but they never objected, and tacitly assented to the same. On the other hand, the plaintiffs applied and obtained regrant of the Desgat lands (other than those which were the subject of the deed, Ex. 39), in their favour to the exclusion of Ramchandrarao.In the light of the above discussion, we are of opinion (i) that there was partition or division of the joint family status sometime prior to the execution of deed, Ex. 39, and (ii) that the disposition of about 118 or 120 acres made under that deed was, in substance an absolute allotment of that land to Ramchandrarao, towards implementation of that division or partition in recognition of the latters right to have his share demarcated by metes and bounds to be enjoyed exclusively in severaltyPoint No. 1 is thus found in favour of the appellant. In view of the above finding that the suit property was the separate, divided property of Ramchandrarao at the date of his death, and under the traditional Hindu Law, would go by succession to his daughter, the appellant herein, to the exclusion of the plaintiff-collaterals, it is not necessary to decide Point No. 2 canvassed by the appellant.