dedol-hf/india-case-legal-rag huggingface dataset:
B.C. Dey (S.C. Ghose, with him) for the appellant.
    M.C. Setalvad (Kanhaiyaji, with him) for the respondent.
154
    1951.  November 29. The Judgment of Mehr Chand   Mahajan
and Vivian Bose JJ.  was  delivered  by Mahajan J. Fazl  Ali
J. delivered a separate judgment.
    MAHAJAN J. --The question involved in the appeal relates
to the right of succession to six Birbhum ghatwalis governed
by  Regulation  XXIX of 1814, annexed to Gaddi  Pathrol  and
lying  within  Tappasarath  in the  Santhal  Parganas.   the
genealogy  of  the contestants appears  from  the  following
pedigree table:  ....
             Digbijoy Singh
                    I
Gurohari  SinghKanhai Singh          Bhairo  Singh    Balram
Singh
(Ghatwal)                                I
   I                                 Pratar Singh
   I        I              I               I
   I     Banwari Singh   Pitambar      Katku Singh
Bharat Singh             (Died
(Ghatwal)                issueless)
   I
Kharagdhari Singh
(Ghatwal)
   I
Ram Chandra Singh
(Ghatwal)
  I                           I
Brijbehari Singh         Sarju Prasad Singh
(Ghatwal)                (Original plaintiff)
   I                           I
Krishna Prasad Singh     Hargobind Prasad Singh
(Ghatwal)                (Substituted plaintiff)
    I                           I
Kali Prasad Singh          Durga Prasad
   (Ghatwal)               ( Died issueless)
      I
Phaldani Kumari
(Defendant)
Tikait Kali Prasad Singh, the last gaddidar of  Pathrol,
died  in the year 1935.  He belonged to  the  Baisi-Chaurasi
clan. On the 29th November, 1935, the
155
Commissioner of Bhagalpur Division recognized Smt.  Phaldani
Kumari as the next ghatwal and entitled to be maintained  in
possession  of  the ghatwali estate on  the  30th  November,
1936, sarju Prasad Singh brought the suit out of which  this
appeal arises in forma pauperis in the  court of the  Subor-
dinate Judge  of Deoghar for possession of the ghatwalis. In
paragraphs 7, 8 and 10 of the plaint it was alleged that the
ghatwalis  in suit were joint family property and  were  im-
partible by custom;  that succession to them was governed by
the  law  of  lineal primogeniture;  that  the  females  and
persons claiming  through them were altogether excluded from
inheritance.   It  was  claimed that the  late  Tikait  Kali
Prasad  Singh  and  the plaintiff were members  of  a  joint
Mitakshara family and that he alone as the eldest member  of
the  eldest surviving line of the descendants of the  common
ancestor was entitled to succeed to them.
    The defendant in her written statement denied this claim
and contended that Birbhum ghatwalis governed by  Regulation
XXIX  of 1814 are not and cannot be in the nature  of  joint
family  property but that the person who succeeds and  holds
the  tenure  as ghatwal is the sole  proprietor  and   owner
thereof.   It  was  pleaded that the  properties  being  the
exclusive  and  separate properties of the ghatwal  for  the
time  being, the defendant, his widow, was entitled to  suc-
ceed to them in preference to the plaintiff under the Mitak-
shara  school  of Hindu law which  admittedly  governed  the
family  of the parties.  The pleadings of the  parties  gave
rise to the following issues :--
1.   Whether succession to the ghatwalis in question  is
governed by the customs alleged in para 7 of the plaint ?
    2.   Did  the ghatwalis in question  form  joint  family
property  of Kali Prasad Singh, his ancestors in the  direct
line and of Sarju Prasad Singh and the plaintiff?
    3.   Did  Kali Prasad die in a state of  jointness  with
Sarju Prasad Singh ?
156
4.  Are the ghatwals the sole proprietors of the   ghatwalis
for the time  being as alleged by the defendant ?
5. Whether the plaintiff or the defendant is  entitled
to succeed to the properties in suit ?
     Issues  2,  3 and 4 were found by the  trial  Judge  in
favour  of the plaintiff and against the defendant.  It  was
held  that  Kali Prasad Singh died in a state  of  jointness
with  Sarju Prasad Singh and that the ghatwalis in  question
were their joint family property and that the plaintiff  the
eldest  surviving copartner in the eldest line  of  Digbijoy
Singh's  descendants  was  entitled to succeed  to  them  in
preference  to the widow. It was common ground  between  the
parties  that  in case the properties were held  to  be  the
separate  properties  of Kali Prasad Singh,  the  widow  was
entitled to succeed to them.  As a result of these  findings
the  plaintiff's suit was decreed with costs. On  appeal  by
the  widow to the High Court, this. decree was reversed  and
the plaintiff's suit was dismissed with costs.  It was  held
that  the character of the ghatwali tenures in question  was
such  that they could not be regarded as joint  property  of
the  plaintiff and the last ghatwal and that being  so,  the
defendant was entitled to succeed to them.
     The  learned counsel for the appellant based his  argu-
ments  on the thesis that the ghatwali estates  in  question
were  of the same nature and character as joint  family  im-
partible estates governed by the Mitakshara law and that the
rule  of  survive  applicable  to  such  estates  was   also
applicable  to them.  It was contended that the  High  Court
was in error in holding that the suit properties exclusively
belonged  to  Kali Prasad Singh or that there  was  anything
peculiar  in  these tenures which differentiated  them  from
other  ghatwalis in the Santhai Pargangs or from  other  im-
partible  estates known to Hindu law and  which  peculiarity
incapacitated them from being included within the definition
of coparcenary property.
     The  plea  that females were by  custom  excluded  from
inheriting ghatwali  tenures in Birbhum was
157
dropped  in the two courts below and was' not raised  before
us;  so also the point of custom set out in para. 7  of  the
plaint and covered by issue 1 was not seriously urged.
    The  learned  Attorney-General,  while  conceding   that
succession  to these tenures was governed by the  Mitakshara
law,  contended that in no sense could they be  regarded  as
joint  family property and that their peculiar  characteris-
tics  precluded  the acquisition of any right  by  birth  by
members  of a joint Hindu family in them. He also  urged  in
the  alternative that the widow was 'entitled to succeed  to
them,  assuming them to be joint family property under  cus-
tom.
The  courts below have given elaborate judgments in  the
case and reference has been made to a large number of decid-
ed cases. In our opinion, the main point that needs decision
is  whether the suit ghatwalis were to be regarded as  joint
family or separate properties of the deceased.  For a  solu-
tion  of this problem it is necessary to refer first to  the
nature  and main incidents of a ghatwali tenure. Its  origin
is now well known. In Moghul times grants of land were  made
to  selected  persons who were appointed  guardians  of  the
mountain passes for protecting the countryside against  hill
invaders  and  the  office held by these  persons  bore  the
designation "ghatwal". These grants were made in some  cases
directly  by  the  ruling power and in other  cases  by  the
zamindar responsible by custom for the maintenance of  secu-
rity  and order within the estate as consideration  for  the
performance  of the duties. By efflux of time  these  grants
assumed the form of an actual estate in land, heritable  and
perpetual, but conditional upon services certain or services
to be demanded.
    Reference  to  some  of the decided  cases  relating  to
Birbhum  ghatwali tenures will sufficiently  indicate  their
nature and character.
    In Harlal Singh v. Joravan Singh(1), it was held that  a
ghatwali estate in Birbhum was not divisible
(1) 6 Select. Rep.204.
     21
158
on  the  death of a ghatwal, amongst his  heirs  but  should
devolve entirely on the eldest son or the next ghatwal.   It
was said that ghatwali lands are grants for particular  pur-
poses,  especially of police, and to divide them into  small
portions amongst the heirs of the ghatwals would defeat  the
very ends for which the grants were made.
    In Satrukchunder Dey v. Bhagat Bharutchunder Singh(1), a
decision  of the year 1853, it was stated that the  ghatwali
tenures in Birbhum were not private property of the ghatwals
but lands assigned by the State in remuneration for specific
police  services  and were not alienable or  attachable  for
personal debts.
    Mst. Kustooree Koomaree v. Monohur Deo(2), Loch J.  took
the  view  that succession to ghatwalis is regulated  by  no
rule  of  kulachar or family custom, nor by  the  Mitakshara
law, but solely by the nature of the ghatwali tenure,  which
descends  undivided to the party who succeeds to  and  holds
the tenure as ghatwal and that a female is not incapable  of
holding a ghatwali tenure.  It was said that-
    "the  party  who  succeeds to and holds  the  tenure  as
ghatwal  must be, and has always been, looked upon  as  sole
proprietor thereof, and, therefore, the other members of the
family cannot claim to be coparceners and entitled to  share
in  the  profits of the property, though they  may,  by  the
permission  and  goodwill  of the  incumbent,  derive  their
support,  either from some portion of the property which  he
may have assigned to them, or directly from himself."
    In  Binode  Ram Sein v. Deputy Commissioner  of  Santhai
Pargangs(3),   (on  review 7 W.R. 178) it was held that  the
rents  of a ghatwali tenure are not liable for the debts  of
the  former deceased holder of the tenure.  The  reason  for
the decision was that the tenure was held for the purpose of
public  services  and  those who perform  the  services  are
entitled to the whole of the remuneration.
  (1) 9 S.D.R. 900.                 (3) 6 W.R. 129.
  (2) 1864 W.R. (Gap Nos.) 39.
159
    In   Tekait  Durga  Pershad  Singh  v.  Teketnee   Durga
Kuari(1), it was urged that a female's right to inherit  was
inconsistent  with a ghatwali estate.  This  contention  was
negatived  and  reference  was made to the  fact  that  many
ghatwali  estates were held by females and it  was  observed
that  it was difficult to hold that a ghatwali  estate  must
necessarily  be held by male heirs. This case  further  sug-
gests that in a case where it is held proved that the family
was  joint, succession to Birbhum ghatwali may be  regulated
by the same rule of Hindu law as is applicable to the  devo-
lution of impartible estates.
    In Ram Narain Singh v. Ramoon Paurey(2), another Birbhum
ghatwali  case,  it was held that the ghatwal for  the  time
being  was  only entitled to interest  on  the  compensation
money  obtained for compulsory acquisition of a part of  the
ghatwali interest but that he could not spend the corpus  of
it which had to devolve on the next heir intact.
So  far as Birbhum ghatwalis are concerned, it  is  only
the above mentioned cases to which our attention was drawn.
    Reference  in this connection is also necessary  to  the
terms  of Regulation XXIX of 1814. Sections I and II of  the
Regulation  which are material to this enquiry are in  these
terms :--
    I. Whereas the lands held by the class of persons denom-
inated  Ghautwauls,  in the district of  Beerbhoom,  form  a
peculiar  tenure  to which the provisions  of  the  existing
Regulations are not expressly applicable; and whereas  every
ground  exists  to  believe that, according  to  the  former
usages  and constitution of the country, this class of  per-
sons  are  entitled to hold their  lands,  generation  after
generation,  in  perpetuity,  subject  nevertheless  to  the
payment of a fixed  and established rent to the zemindar  of
Beerbhoom, and to the performance of certain duties for  the
maintenance  of the public peace and support of the  police;
and whereas the rents payable by those tenants have been
(1) 20 W.R. 154.              (2) 23 W.R. 376.
160
recently  adjusted, after a full and minute inquiry made  by
the  proper officers in the revenue department; and  whereas
it  is essential to give stability to the  arrangements  now
established  among the Ghautwauls, the following rules  have
been  adopted, to be in force from the period of their  pro-
mulgation in the district of Beerbhoom.
II. A settlement having lately been made on the part  of
the Government with the Ghautwauls in the district of Beerb-
hoom, it is hereby declared that they and their  descendants
in  perpetuity  shall  be maintained in  possession  of  the
lands, so long as they shall respectively pay the revenue at
present assessed upon them,...."
    The result of the decided cases and of the provisions of
the  regulation  is that the grantee of the tenure  and  his
descendants have to be maintained in possession of the  land
from  generation to generation conditional upon services  to
be rendered. The tenure is however liable to forfeiture  for
misconduct or misbehavior of the ghatwal for the time being.
The  succession  to it is determined by the rule  of  lineal
primogeniture. It is neither partible nor alienable  (except
in  exceptional cases with the consent of the government  or
the zamindar, as the case may be). These two characteristics
are inherent in its very nature and have not been annexed to
it  by  any rule of custom. The estate in the hands  of  the
last  holder is not liable either to attachment or  sale  in
execution  of a decree against him; nor is it liable in  the
hands  of his successor for payment of his debts.  When  the
succession  opens out, the heir determined according to  law
has  to  execute  a  muchilika  in  favour  of  the  grantor
guaranteeing  the performance of the duties annexed  to  the
office  and  stipulating  that  in  case  of  misconduct  or
misbehaviour or non-fulfilment of the obligations  attaching
to the office, as to which the tenure is in the nature of  a
remuneration, government will have the right to resume it.
    In view of these peculiar characteristics of a  ghatwali
tenure in Birbhum which are so different from other  inheri-
tances, we find it difficult to apply to it the
161
law  of  Mitakshara  to the full extent. The  essence  of  a
coparcenary under the Mitakshara law is unity of  ownership.
As observed in Katama Natchir v. The  Raja of  Sivaganga(1),
there  has to be community of interest and unity of  posses-
sion  between all the, members of the family, and  upon  the
death of any one of them the others may well take by  survi-
vorship  that in which they had during the deceased's  life-
time  a common interest and a common possession.  The  inci-
dents  attaching to a Birbhum ghatwali tenure rule  out  the
existence  of any notion of community of interest and  unity
of  possession of the members of the family with the  holder
for  the  time being.  He is entitled to  be  maintained  in
exclusive  possession of the ghatwali lands and the  devolu-
tion of the property is to him in the status of a sole heir.
This view finds support from the observations of Lord  Fitz-
gerald  in  Kali  Pershad v. Anand Roy(2),  though  made  in
respect  of  a zamindari ghatwali, yet also  appositely  ap-
plicable to a government ghatwali.  His Lordship observed as
follows :-
    "Where, however, the Mitakshara governs, each son  imme-
diately  on his birth takes a share equal to his  father  in
the ancestral immoveable estate. Having regard to the origin
and nature of ghatwali tenures and their purposes and  inci-
dents  as established by decided cases, most of  which  have
been referred to in the course of the argument, it is admit-
ted that such a tenure is in some particulars distinct from,
and  cannot  be governed by, either the general  objects  of
Hindu  inheritance as above stated, or by the  before-quoted
rule of the Mitakshara.
     It  is  admitted that a ghatwali estate  is  impartable
--that is to say, not subject to partition; that the  eldest
son succeeds to the whole to the exclusion of his  brothers.
These are propositions that seem to exclude the  application
of  the Mitakshara rule that the sons on birth each take  an
equal estate with the father and are entitled to partition."
     Similar  opinion was expressed in  Chhalraclhari  Singh
v. Saraswati Kumari(3), by a Bench of the
   (1) (1861-3) 9 M.I.A. 543.           (3) (1895) I.L.R. 22
Cal. 156.
   (2) (1888) I.L.R. 15 Cal. 471.
162
Calcutta  High  Court.  The following passage  from  that  a
decision may be quoted with advantage :-
   "The  learned pleader for the appellant has however  con-
tended  before  us ,that, although this ghatwali  tenure  is
impartible, yet according to the decision of their Lordships
of  the Privy Council in Chintaman Singh v.  Nowlukho  Koon-
wari(1),  it is not necessarily separate property, and  that
as their Lordships observe 'whether the general status of  a
Hindu family be joint or undivided, property which is  joint
will  follow  one  and property which   is   separate   will
follow another course of succession.' The decision  referred
to  is no doubt an authority for the proposition that  there
may  be impartible joint family property, such as a  raj  or
other estate similar to a raj, but whether such property  is
to  be regarded as joint or separate would appear to  depend
generally  upon the character of the property at its  incep-
tion,  such  as the nature of the grant, etc.  creating  it.
Having regard however to the view we have already  expressed
as  to the status of the family in the present case, and  as
to the ghatwali tenure having been the exclusive property of
Ananta Narain, we think it is unnecessary to determine  what
was originally the character of this tenure, although, if we
were  called  upon  to decide the  question,  we  should  be
disposed to say, with reference to the peculiar character of
these tenures as described in Regulation XXIX of 1814,  that
they  were  intended  to be the exclusive  property  of  the
ghatwalforthe  time being, and not joint family property  in
the proper sense of the
  In Raja Durga Prashad Singh v. Tribeni Singh(2), again  it
was said as follows :-
  "It was certainly an advantage to the whole family  that
one of their members should hold the office and the  tenure.
He could put other members of the family into minor  offices
and grant them subordinate interests commonly called  jotes,
and  he could and would generally provide for the family  in
the manner
(1) 13 W.R. 21.               (2) (1918) 45 I.A. 251.
163
expected of its head. But this is a long way off making  him
a trustee for the family or  treating the ghatwali estate as
possessed  by  the family and reducing the ghatwali  to  the
position  of  karta or managing head of  the  family.  Their
Lordships do not find that the incidents of ghatwali  tenure
are such as to give the family any rights over the  property
while  it  is  in the hands of the ghatwal,  and  they  find
themselves upon this point in full agreement with the courts
in India."
    In Narayan Singh v. Niranjan Chakravarti(1), Lord Sumner
made an exhaustive review of the decided cases and  examined
the  whole  position of ghatwali tenures generally  and  ob-
served  that  where the tenure is hereditary,  a  recognized
right  to be appointed ghatwal takes the place of  a  formal
appointment  and a recognized right in the superior to  dis-
miss  the  ghatwal if he is no longer able  and  willing  to
render  the service required by his tenure, and  to  appoint
another  to  the office and the tenure of  the  lands,  then
readily suffices to maintain in perpetuity the incidents  of
the tenure.
    In  these circumstances it is not possible to hold  that
the  Mitakshara  rule that when a person  inherits  property
from any one of his three immediate paternal ancestors,  his
sons,  grandsons and great-grandsons acquire an interest  in
it  by birth can have any application to the case  of  these
grants  which  are in the nature of a remuneration  for  the
performance  of certain services by the holder of  that  of-
fice.  A ghatwali has to be regarded as something  connected
with  an office and as observed by Lord Sumner in the  above
mentioned case, the office cannot except by special  custom,
grant  or  other arrangement, either run with  lands  or  be
served from them.  In other words, just as primogeniture and
impartibility are handmaids, similarly the ghatwal's  office
and  the ghatwali tenure are two inseparables and cannot  be
lodged in separate compartments. If the office cannot be  in
the  nature of coparcenary property, the tenure must  follow
the same way. Thus it is not easy to conceive that an inter-
est
(1) (1924) 51 I.A. 37.
164
  can  be  acquired  at the birth of a  member  of  a  joint
family in a tenure which is annexed to an office, even if it
has  descended from three immediate paternal ancestors.   In
certain eventualities the selection of the next heir depends
on the choice of the ruling authority and in case of miscon-
duct  or misbehaviour of the holder for the time  being  the
ruling  power  can  not only dismiss the  ghatwal  but  even
resume  the  tenure.  This is a feature  which  places  this
heritable  property  in a class by itself  as  distinguished
from other inheritances governed by the Mitakshara law.
     The  view that in Birbhum, ghatwali tenures are in  the
nature of separate property or the exclusive property of the
ghatwal finds support from the fact that in many  instances,
whenever  succession has opened out in respect of  them,  it
has  been  determined according to the Mitakshara  rule  ap-
plicable to the devolution of separate property irrespective
of  the circumstance whether the deceased died in  joint  or
separate  status  with the other members  of   the   family.
Thirteen  instances  of such practice in  the  past  amongst
members  of the Bais-Chaurasi clan were proved in the  case,
in all of which the widow succeeded in preference to a  male
heir.   The learned trial Judge held that in some  of  these
instances the female succeeded because the agnate nearest in
line  was separate from her husband; as regards  the  others
though he reached the conclusion that the evidence of  sepa-
ration  was weak, he thought that these did not establish  a
custom  superseding  in cases of joint family  property  the
rule  of  survivorship.  The High Court was of  a  different
opinion.  It rightly remarked that while numerous  instances
of  female succession to the estates held by  Baisi-Chaurasi
gaddidar's  had  been  proved, not a single  instance  of  a
female having been excluded from the appointment of a  ghat-
wal on the ground of an agnate being entitled to come in  as
a  coparcener  of the last holder by survivorship  had  been
proved,  and that in these circumstances there was force  in
the  contention  that even if the tenures in  question  were
ancestral joint family property, succession thereto was
165
governed  by  the  Mitakshara rule  applicable  to  separate
property.
    For the reasons given above we held that the  Mitakshara
rule that the property inherited by a person from his  imme-
diate paternal ancestors becomes ancestral in his hands  and
in  it  his sons, grandsons and  great-grandsons  acquire  a
right at the moment of the birth has no apposite application
to Birbhum ghatwali tenures.
    The learned counsel for the appellant in support of  his
contention placed reliance on a number of decisions of their
Lordships of the Privy Council concerning impartible estates
governed by the Mitakshara law, wherein it was held that the
succession  to an impartible estate which is  the  ancestral
property of a joint Hindu family governed by the  Mitakshara
law  is governed by the rule of survivorship subject to  the
custom  of  impartibility; the eldest member of  the  senior
branch of the family succeeding in preference to the  direct
lineal  senior  descendants of the common ancestor,  if  the
latter  is more remote in degree.  Particular reference  was
made  to  the  remarks  of Turner  L..I.  in  the  Sivaganga
case(1), and to the observations in Baijnath Prasad Singh v.