dedol-hf/india-case-legal-rag huggingface dataset:
Tej Bali Singh (2) and in the case of Shiba Prasad Singh  v.
Rani Prayag Kumari Debi(3). Therein it was said that in  the
case  of ordinary joint family property the members  Of  the
family  have  (1) the right of partition, (2) the  right  to
restrain  alienations by the head, (3) the right of  mainte-
nance, and (4) the right of survivorship. The first of these
rights  cannot  exist in the case of an  impartible  estate,
though  ancestral, from the very nature of the  estate.  The
second and third are incompatible with the custom of impart-
ibility.  To this extent the general law of  the  Mitakshara
has  been  superseded by custom and the  impartible  estate,
though  ancestral,  is clothed with the incidents  of  self-
acquired  and separate property. But the right of  survivor-
ship  is not inconsistent with the custom of  impartibility.
This right
 (1) (1861-3) 9 M.I.A. 543.                  (3) A.I.R. 1932
P.C. 216.
(2) (1921) I.L.R. 43 All. 228.
         22
166
therefore  still  remains  and to  this  extent  the  estate
still  retain.s its character of joint family  property  and
its  devolution  is governed by the general  Mitakshara  law
applicable to such property and that though the other rights
which a coparcener acquires by birth in joint family proper-
ty  no longer exist, the birthright of the senior member  to
take by survivorship still remains.
   In  our view, these observations have no application  to
the tenures in suit. As already indicated, it is not  possi-
ble to concede in their case that a member of a joint family
governed  by the Mitakshara law acquires any right by  birth
in them.  The general law of Mitakshara creating that  right
seems  to  have been superseded in their case  not  only  by
peculiarities inherent in the nature of these tenures but by
encroachments of custom on it. Moreover, it appears that the
remarks relied upon were made in cases where the  impartible
estates were admittedly joint family property or the  grants
were  of  such a character that they are  intended  for  the
benefit of the family as such. The ratio of these  decisions
was  that even though certain incidents attaching  to  joint
family  property may cease to exist by custom,  some  others
which are not affected by custom may survive. This reasoning
can have no application to property which at no stage  what-
ever  could be clothed or was clothed with any of the  inci-
dents of coparcenary property.
    The learned counsel for the appellant placed  considera-
ble  reliance on the observations of Sir Dawson Miller  C.J.
in   Fulbati  Kumari v.  Maheshwari Prasad(1).  The  learned
Chief  Justice therein dissented from the View urged  before
him  that  all ghatwali property is the  exclusive  separate
property  of the holder for the time being and that  it  de-
volves  according to the rules affecting  separate  property
subject  again  to  the circumstance  of  impartibility.  He
observed that the fact that a raj is impartible does not  in
a  case governed by the Mitakshara law make it  separate  or
self-acquired property, that it may be self-acquired
  (1) A. I. R. 1923 Pat. 453.
167
property  or  it may be the property of  a  joint  undivided
family and that in the latter case succession will be  regu-
lated according to the rule of survivorship. In our opinion,
these observations have no application to the case of  Birb-
hum  ghatwalis because in express terms these were  excluded
from consideration in that case. In the judgment it was said
:-
    "In our opinion, the estate in the present case is in no
way  comparable to the Birbhum ghatwali tenures and  Regula-
tion XXIX of 1814 does not apply to it."
    The  decision  in the case proceeded on  the  assumption
that  Birbhum  ghatwalis stood apart  from  other  ghatwalis
which  stood on the same footing as impartible estates  gov-
erned by Mitakshara law.
    The learned Attorney-General challenged the  correctness
of  these decisions and contended that the decisions of  the
Privy Council on this subject were not uniform.  He drew our
attention  to  the  observations  made  in  Sartaj   Kuari's
case(1),  in  the Second Pittapur case(2), and  in  Tipperah
case(3).   There may be a seeming conflict between the  view
expressed  in  those  decisions and the  view  expressed  in
Baijnath  Prasad  Singh v. Tej Bali Singh(4), and  in  Shiba
Prasad Singh v. Rani Prayag Kurnari Debi(5).  It seems to us
however  that  these latter cases have settled the  law  ap-
plicable  to  joint family impartible  estates  governed  by
Mitakshara law and it is rather late in the day  to reopen a
controversy  settled by a series of decisions of  the  Privy
Council.
    The  contention that on the death of the last  holder  a
ghatwali  tenure in Birbhum reverts to the grantor and  that
notionally there is a resumption of it in favour of  govern-
ment  and a re-grant to the next heir does not  impress  us.
On  the  express terms of the regulation these  tenures  are
heritable  from generation to generation and the  theory  of
resumption and re-grant is inconsistent with their heritable
character.  Inheritance can never remain in abeyance and  on
the
 (1)  (1887-8)  15 LA. 51.            (4) (1921)  I.L.R.  43
All. 228.
 (2)  (1918) 45 I.A. 148.             (5) A.I.R.  1932  P.C.
216.
 (3) (1867-9) 12 M.I.A. 523.
168
death of the last holder the estate immediately vests in the
next  heir.  The  circumstance that the  government  may  in
certain  events  have the power to dismiss a ghatwal  or  to
forfeit  the  tenure cannot lead to the  inference  that  it
terminates and is re-granted at every death.
    The  argument of the learned counsel for  the  appellant
that a widow not being a descendant of the grantee under the
terms of Regulation XXIX of 1814, is not entitled to inherit
to  Birbhum ghatwali tenures also does not impress  us.  The
regulation  does not enact any rule of succession  to  these
tenures,  and the devolution with respect to them is  admit-
tedly  determined by personal law or custom. The  expression
"descendants" used in the regulation cannot deprive females,
like a widow or a mother, from taking the inheritance  where
they  are legal heirs under Mitakshara law or under  custom.
Females  have  invariably been allowed to succeed  to  these
tenures  in the past. The appellant's counsel conceded  that
if  the  property was the separate property of  Kali  Prasad
Singh,  the  defendant was entitled to inherit  to  it.   We
think  that  the expression "descendants" has  been  loosely
employed  in  the regulation for the word "heirs".  On  this
point  we are in agreement with the observations made  by  a
Bench  of the Calcutta High  Court  in   Chhatradhari  Singh
v. Saraswyati Kumari(1).
It  may further be pointed out that even if the  conten-
tion  of  the  learned counsel for the appellant  is  to  be
accepted, by no process could the trial court have passed  a
decree  in favour of the plaintiff in respect of items 4,  5
and  6  of the schedule Admittedly these  were  acquired  by
Krishna  Prasad  Singh,  father of Kali Prasad  Singh  by  a
decree of court passed in his favour against his  collateral
Katku Singh who also claimed these properties as an heir  to
the  last male owner Banwari Singh (vide Exhibit  4).  These
pro  perties  having devolved upon Krishna Prasad  Singh  by
obstructed heritage, were in the nature of separate property
in his hands and could not fall within the
(1) (1895) I.L.R. 22 Cal. 156.
169
definition of ancestral property given in Mitakshara.  Sarju
Prasad  Singh, uncle of Krishna Prasad Singh, could  acquire
no  right or roterest in these properties by birth  enabling
him  to  claim them by survivorship. Kali Prasad  Singh  who
inherited  them on the death of his father got them  as  his
separate  property  as he had no son who could  acquire  any
interest in them by birth. With regard to this property  the
widow was certainly an heir after the death of her  husband'
and  plaintiff could have no claim whatsoever in respect  of
these items of the schedule.  This aspect of the case  seems
to have been lost sight of in the two courts below.
    The result, therefore, is that this appeal fails and  is
dismissed with costs.
    FAZL  ALI J.--While agreeing generally with  my  learned
brother  Mahajan J., I wish to say a few words  to  indicate
the main ground on which I would dismiss this appeal.
There  are a number of authoritative  decisions  dealing
with the special features of ghatwali property, one of which
is  said  to be that if the ghatwal is a member of  a  joint
family,  the family has no right over the property while  it
is  in  his  hands.  [See Durga  Prashad  Singh  v.  Tribeni
Singh(1)]. The logical corollary from this characteristic of
ghatwali  property would seem to be that it is more  in  the
nature  of exclusive property of the ghatwal than  of  joint
family property. Nevertheless, in some cases, succession  to
such  property  has been determined with  reference  to  the
rules  of  Hindu  law regarding joint  property,  where  the
ghatwal was found to be a member of the joint family.  As at
present  advised I am not prepared to say that  those  cases
were  wrongly decided, but I think it will not be  incorrect
to  say  that custom and usage are  also  important  factors
governing  succession to ghatwali property, and it  is  con-
ceivable that while in some cases custom may develop on  the
lines of Hindu law relating to succession owing to  repeated
instances of
(1) (1918) 45 I.A. 251.
170
tacit and unquestioned application of the law, in other  i.a
cases  succession to ghatwali property may be  governed  not
entirely by Hindu law but by such law as modified in certain
respects by usage and custom.
     The  question with which we are concerned in this  case
is whether the widow of a deceased ghatwal, who was a member
of  a joint family and died leaving no issue or direct  male
descendants, can succeed to the ghatWali property in prefer-
ence to the nearest male agnate.
     On a reference to the plaint, it would appear that what
the  plaintiff  contended  was that the clan  to  which  the
parties  belong  was governed by the  Mitakshara  school  of
Hindu  law "subject to their clan custom", one of which  was
said  to be that females, viz., widow, daughter  or  mother,
and  persons claiming through females could not and did  not
succeed  on  the death of the ghatwal. This  allegation  was
controverted  in the written statement, and it  was  claimed
that the family was governed by the Mitakshara system of law
and "there was no clan custom governing the estate in suit."
Upon these pleadings, one of the issues framed by the  trial
court was "whether succession to the ghatwali is governed by
custom,  as alleged in paragraph 7 of the plaint."   In  the
course  of  the  trial, the plaintiff tried  to  prove  that
females were always excluded as alleged by him.  In this, he
did  not succeed.  The courts below however found  that  the
question which directly affected the present case was a much
narrower  one,  namely, whether females could  succeed  even
when  the family was joint. So far as this question is  con-
cerned, both the courts below are agreed that females cannot
be excluded if the property is the separate property of  the
ghatwal. But the question which still remains to be  decided
is what the true legal position would be if the property  is
deemed  to be joint property. It appears that  evidence  was
adduced at the trial to show that in 13 instances  affecting
the Baisi-Chaurasi clan to whom the Birbhum ghatwals  admit-
tedly  belong,  the widow of the last ghatwal  succeeded  in
preference to a male agnate.
171
The  trial  judge however found that in four  of  these  in-
stances  the nearest agnate who claimed the property     was
separate  from the ghatwal or his widow, but, in  the  other
instances,  there  was no evidence of  separation,  or  "the
evidence  was  weak", which, I take it, is  another  way  of
saying that it could not be safely relied on. It seems to me
that  these  instances lend some support to  the  view  that
Hindu law has been modified' by custom, so far as the  Birb-
hum  ghatwalis are concerned,  and that among  the  ghatwals
belonging to this class, where the last ghatwal dies leaving
a widow but no issue, then she succeeds in preference to the
nearest  male agnate, even though the family may  be  joint.
The  Birbhum ghatwals form a class by themselves,  and  they
are also subject to a special Regulation-Regulation XXIX  of
1814.   That Regulation states among other things that  this
class  of  ghatwals shall be entitled to hold  the  ghatwali
property generation after generation and that they and their
descendants in perpetuity shall be maintained in  possession
of  such property. Strictly speaking, neither a widow nor  a
distant agnate will come within the terms of the Regulation,
not  being a descendant of the last ghatwal,  and  therefore
custom and usage cannot be ruled out in determining  succes-
sion  in  such cases.  The strongest case which  was  relied
upon  by the appellant is Fulbati Kumari v. Maheshwari  Pra-
sad(1)  where it was laid down that on the death of a  ghat-
wal,  who  was  a member of a  joint  family,  the  ghatwali
property  would devolve according to the rules of Hindu  law
affecting  joint  property, that iS to say, by the  rule  of
survivorship.   But,  in this case, Dawson Miller  C.J.  who
delivered the judgment, took care to observe that the  ghat-
wali  estate  which was the subject of  litigation  was  not
comparable  to  the Birbhum ghatwali 'tenures,  which  means
that the rule laid down in that case may not apply to  Birb-
hum ghatwals.
    In  the present case, the Commissioner, who  represented
the  Government  and who had special means  of  knowing  the
usages affecting the Birbhurn ghatwals.
(1) A.I.R. 1923 Pat. 453.
172
     appointed the respondent as the ghatwal, stating   that
he  was  "following  a  well-established precedent  in   the
case  of  these  ghatwals by recognizing the  widow  in  the
absence of a direct heir." In my opinion, whatever  evidence
there is in this case supports the Commissioner's view,  and
there  is  hardly any cogent evidence to rebut  it.  In  the
circumstances,  I  agree that this appeal ought to  be  dis-
missed with costs.
                              Appeal dismissed.
    Agent for the appellant: P.K. Chatterjee.
Agent for the respondent: S.P. Varma.
ADAMJI UMAR DALAL
      v.
THE STATE OF BOMBAY
@
November 26, 1951.
PETITIONER:
RAM KUMAR DAS
        Vs.
RESPONDENT:
JAGADISH CHANDRA DEB DHABAL DEBAND ANOTHER.
DATE OF JUDGMENT:
26/11/1951
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
SASTRI, M. PATANJALI (CJ)
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
 1952 AIR   23            1952 SCR  269
 CITATOR INFO :
 D          1968 SC 794  (8)
 E&D        1977 SC2425  (4)
 RF         1980 SC 226  (11,14,15)
ACT:
    Transfer  of  Property  Act  (IV  of  1882),  ss.   106,
107--Duration   of  lease--Presumption--Kabuliyat   for   10
years--Payment of annual rent for two years  only--Kabuliyat
inoperative--Nature  of  possession  after  the  two   years
--Whether adverse, as tenant from year to year, or as month-
ly  tenant--Applicability  of  s.  106  to  implied   tenan-
cies--Presumption from payment of annual rent.
HEADNOTE:
      The  rule  of construction embodied in s. 106  of  the
Transfer Property Act applies not only to express leases  of
uncertain  duration but also to leases implied by law  which
may  be inferred from possession and acceptance of rent  and
other circumstances.
270
The  contract to the contrary contemplated by the said  sec-
tion need not be an express contract; it may be implied, but
it should  be a valid contract.  If the contract is  invalid
the section will regulate the duration of the lease.
     When  the rent  reserved is an annual rent, a  presump-
tion  would  arise that the tenancy was  an  annual  tenancy
unless  there  is something to rebut this  presumption.  But
under s. 107 of the Transfer of Property Act a tenancy  from
year to year or reserving an yearly rent can be made only by
a registered instrument.
     The  defendant executed a registered kabuliyat  to  the
Receiver who was managing an estate pending a suit, purport-
ing  to  take a plot of land on lease for a  period  of  ten
years  at  a rental of Rs. 46 per annum and paid  the  first
year's  rent of Rs. 46 on the 8th March, 1925, and the  next
year's  rent  on the 16th March, 1926. No further  rent  was
paid  by the defendant to the Receiver or to the  proprietor
after that date.  The proprietor, treating the defendant  as
a  monthly tenant served notice to quit on him on  the  18th
July,  1942, asking the latter to vacate on the 7th  August,
1942, and instituted a suit for ejectment in July, 1943. The
kabuliyat was found to be inoperative in law and the defend-
ant contended that the payment and acceptance of annual rent
in  1925 and 1926 did not create a monthly tenancy  but  two
tenancies  for one year each for two successive years,  that
the  relation of landlord and tenant came to an end  on  the
expiration of the second annual lease, and, as there was  no
holding over, the suit was time-barred:
     Held  (i) that from the facts a tenancy could  be  pre-
sumed  to  have come into existence from 1924; (ii}  as  the
purpose  of the tenancy was for building structures  on  the
land,  under  sec. 106 of the Transfer of Property  Act  the
tenancy  must be presumed to be one from month to  month  in
the absence of a contract to the contrary; (iii) a  contract
that  the  tenancy  was for one year certain  could  not  be
inferred  in the present case from the fact that  an  annual
rent  was paid in 1925 and 1926, inasmuch as the  kabuliyat,
though  inoperative  in law, showed that the  parties  never
intended  to create a lease for one year; (iv) on the  facts
of the case it was quite proper to hold that the tenancy was
one from month to month since its inception in 1924 and  the
suit was not time-barred.
     Debendra  Nath v. Shyama Prasanna (11 C.W.N. 1124)  and
Sheikh Akloo v. Emaman (I.L.R. 44 Cal. 403) approved.
Aziz Abroad v. Alauddin Abroad (A.I.R. 1933 Pat.  485),
Md. Moosa v. Jaganand (20 I.C. 715) and Matilal v.  Darjeel-
ing Municipality (17 C.L.J. 167) referred to.
JUDGMENT:
     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 114  of
1950.   Appeal from a judgment and decree of the High  Court
of Patna (Shearer and Reuben JJ.) dated 5th November,  1948,
in Appeal No. 2064 of 1946,
271
which arose out of a decree of the District Judge of Purulia
in Title Appeal No. 116 of 1945.  The facts are stated fully
in the judgment.
    M.C.  Setalvad,  Attorney-General  for  India,  (Nandial
Untwalia, with him) for the appellant.
    B. C. De (Jyotirmoy Ghose, with him) for the respondent.
    1951.  November26. The Judgment of the Court was  deliv-
ered by
    MUKHERJEA J.---This appeal is on behalf of the defendant
and  it  arises out of a suit commenced  by  the  plaintiff-
respondent,  in the Court of the Subordinate Judge at  Chai-
bassa,  for recovery of possession of the land described  in
schedule to the plaint, on the allegation that the defendant
was  a monthly tenant in respect of the same, and  that  the
tenancy  was  determined by a notice to quit. The  suit  was
decreed by the trial court and the decision was affirmed, on
appeal,  by the District Judge, Purulia, and on  Second  Ap-
peal,  by a Division Bench of the High Court of Patna.   The
defendant has now come up to this court on the strength of a
certificate granted under section 110, Civil Procedure Code.
    Mr.  Setalvad,  appearing on behalf  of  the  defendant-
appellant,  stated  to us at the outset that  he  would  not
dispute  the validity or sufficiency of the notice  to  quit
served  upon his client, if on the facts of this case he  is
held  to be a monthly tenant under the plaintiff in  respect
of  the premises in suit.  His contention, in substance,  is
that the defendant was at no point of time a monthly  tenant
under  the plaintiff or his predecessor.  There  might  have
been,  according to the learned Counsel, two  tenancies  for
one year each for two successive periods, but on the  expiry
of the second yearly lease, which happened on 7th  December,
1926,  the  defendant  ceased to be a tenant  and  no  fresh
tenancy  was created by holding over as is  contemplated  by
section 116 of the Transfer of Property Act. As there was no
holding  over, there could not be any question of a  monthly
tenancy being brought into existence
272
under  the  provision  of section 116  of  the  Transfer  of
Property  Act, and the present suit of the plaintiff  having
been admittedly brought more than 12 years after the  deter-
mination of the second yearly lease, is barred by limitation
under  Article 139 of the Indian Limitation Act.  The  whole
controversy  in this appeal thus centres round the point  as
to whether the defendant was in fact a monthly tenant  under
the  plaintiff  at the date  when the notice  to  quit   was
served  upon him.  To appreciate the respective  contentions
that  have been put forward upon this point by  the  learned
Counsel  on  both  sides, it will be  necessary  to  narrate
briefly the material facts in their chronological order.
     The  property  in suit is a plot of land,  measuring  4
bighas  12 cuttas, and is comprised in old Survey  plot  No.
578  of village Jugselai in the district of  Singhbhum.  The
entire  village forms part of the Dhalbhum estate, of  which
the  plaintiff  is admittedly the  present  proprietor.  One
Charan  Bhumiji was the " Prodhan" of village Jugselai  from
some time before 1913 and on 24th July, 1913, the father  of
the defendant, by a registered Patta, took a lease of  about
:31 bighas of land appertaining to Survey plot No. 573  from
this Prodhan for purposes of cultivation.  It is not disput-
ed  that the property in suit is covered by this  Patta.  At
that  time the proprietor of the  Dhalbhum estate  was  Raja
Satrughna and he died in 1916, leaving behind him a will  by
which the entire estate was bequeathed to the present plain-
tiff.   The plaintiff's claim under the will was  challenged
by  one Partap Chandra Deo Dhabal who succeeded  in  getting
his  name  recorded as proprietor of the  zemindari  in  the
Singhbhum Collectorate. Thereupon the plaintiff instituted a
suit  (being Title Suit No. 67 of 1921) in the Court of  the
Subordinate  Judge  at Midnapore for  establishment  of  his
title to the zemindari and the suit was decreed by the trial
Judge.  Against this decision, the defendant Pratap  Chandra
Deo Dhabal took an appeal to the High Court of Calcutta  and
during the pendency of this appeal, the High Court appointed
a Receiver who was put in
273
possession of the entire estate.  On 8th December, 1924, the
defendant  executed a registered Kabuliyat in favour of  the
Receiver,  by which he purported to take settlement  of  the
land in suit for a period of 10 years at a rental of Rs.  46
per annum and a selami of Rs. 250.  There was a covenant  in
the  lease, which looks like one for perpetual renewal,  and
it was to the effect that on the expiry of the term, if  the
lessor  did  not require the land for his own  purposes  and
decided  to  re-settle it, the lessee would be  entitled  to
fresh settlement on enhanced,rent and on such terms as might
be then agreed upon between the parties. It appears from the
record that the selami money, amounting to Rs. 250, was paid
by  the defendant to the Receiver several months before  the
Kabuliyat  was executed, and the rental amounting to Rs.  46
was paid for the first time on 8th of March, 1925.  The next
payment of rent was made in the succeeding year, on 16th  of
March, 1926. Admittedly, no further payment of rent was made
by  the lessee either to the Receiver or to  the  proprietor
since then, up to this period. The High Court dismissed  the