Case ID: 2723

Judgment:
Appeal No. 1560 of 1966. Appeal by special leave from the judgment and decree dated September 11	 1961 of the Mysore High Court in Second Appeal No. (B) 43 o	f 1956. R.B. Datar and S.N. Prasad	 for the appellants. R. Gopalakrishnan and D.P. Mohanty	 for the respondent. 343 The Judgment of the Court was delivered by Vaidialingam	 J. This appeal	 by special leave	 by defendants 1 to 4	 is directed against the judgment and decree	 dated September 11	 1961 of the Mysore High Court	 in S.A. (B) No. 43 of 1956	 confirming the decrees of the two Subordinate Courts granting a decree for possession in favour of the plaintiff respondent. The respondent instituted suit No. 1 of 1945	 before the Second Class Sub Judge at Chinchali	 for recovery of possession of the suit lands. According to the plaintiff	 the lands are Patilkiwatan Inam lands and he has been registered as 'Nawa Wala ' by order No. 68 dated March 30	 1927 of the Revenue Authorities of the then Kolhapur State. The suit properties had gone in partition to one Maya Gouda	 a member of the Patil family. Maya Gouda died about 35 or 40 years ago. and his widow Jakkawwa was in possession of the lands till the date of her death on August 16	 1943. The plaintiff 's further case was that though Maya Gouda and Jakkawwa had a daughter Bayabai	 the 7th defendant in the suit	 the latter could not inherit the inam properties under the law obtaining in Kolhapur State. Therefore the line of Maya Gouda has become extinct and the plaintiff	 as Nawa Wala is entitled to. get possession of the properties as per the Wat Hukum No. 26 of Fasli 1323. Defendants 1 to 4	 the appellants herein	 contested the claim of the plaintiff on various grounds. They pleaded that the plaintiff was not the senior most member of the senior branch of the family to which Maya Gouda belonged and that they were the nearest reversioners	 under Hindu Law	 to the properties of Maya Gouda. They further pleaded that there was no extinction of the line of Maya Gouda as he had left a daughter	 the 7th defendant	 behind him. They also. claimed title by adverse possession. The trial Court	 by its Judgment and decree dated February 10	 1949 negatived the plea of adverse possession raised by the appellants. It further held that the expression 'Nashtamsha ' in ' the relevant Wat Hukum means that there is no direct male descendant to inherit the properties of the deceased. For this proposition	 the trial Court relied upon a judgment of the Kolhapur High Court in S.A. No. 210 of 1947. On this interpretation it held that the line of Maya Gouda had become extinct with regard to the Inam lands according to law	 as the 7th defendant	 the daughter	 could not inherit the properties. The trial Court further held that the plaintiff	 defendants 1 to 4 and the deceased Maya Gouda	 were members of one and the same family and that this fact had been admitted by both the parties. In the end the trial Court decreed the claim of the plaintiff to get possession of 344 the suit properties and passed a decree to that effect against the defendants. Defendants 1 to 4 filed an appeal before the District Judge	 Kolhapur	 which appeal was later transferred to. the District Judge	 Belgaum	 in view of the merger of Kolhapur State with Bombay. The said appeal	 No. 403 of 1949	 was disposed of by the Second Extra Assistant Judge	 Belgaum	 by his decree and judgment dated March 24	 1952. The Assistant Judge was of the view that the suit will have to be remanded for fresh consideration and for this purpose certain issues were framed 'and parties given opportunity to adduce further evidence. The plaintiff challenged this order of remand	 passed by the Assistant Judge	 before the High Court of Bombay. The Bombay High Court	 by its judgment dated July 21	 1953 set aside the remand order passed by the Assistant Judge of Belgaum 'and directed the District Court to dispose of the appeal according to law. The Assistant Judge of Belgaum	 by his judgment dated January 29. 1954 disposed of C.A. 403 of l 949	 confirming the decree and judgment of the trial Court. The .learned Judge held that the plaintiff had been registered 'as the Nawa Wala of the branch of the family consisting of himself	 the defendants a.nd the deceased Maya Gouda and Jakkawwa with respect to the 8 annas ' share of the Maratha Patils. He further held that the Civil Courts had no jurisdiction to go behind the order of the Revenue Authorities recognizing the plaintiff as Nawa Wala	 in view of section 3 of the Kolhapur Revenue Jurisdiction Act. On the question	n whether Maya Gouda 's branch has become Nashtamsha	 as mentioned in the Wat Hukum	 the learned Judge held that the Kolhapur Courts had consistently interpreted the said expression to mean that a branch became Nashtamsha with respect to Watan Properties when the deceased person left behind him no sons. As authority for this proposition. the Court relied upon the decision of the Kolhapur Supreme Court in Dada Babaji Patil vs Kalgonda Babgonda Patil(1). The Court also referred to the later decision in S.A. 210 of 1947. relied on by the trial Court. On this interpretation	 the Court held that in spite of Maya Gouda having left behind him his daughter	 the 7th defendant	 his line should be considered as Nashtamsha	 so far as the Watan properties were concerned and in consequence	 the plaintiff	 as Nawa Wala was entitled to get possession of the properties. The finding that the defendants had not completed title by adverse possession was accepted by the Court. In this view	 the appeal filed by defendants 1 to 4 was dismissed. Defendants 1 to 4 filed a second appeal before the Bombay High Court	 which appeal	 on reorganisation of the States	 was (1) (1945) Kol. L.R. 541. 345 transferred to the Mysore High Court and registered as Second Appeal No. 43 (B) of 1956. The Mysore High Court	 by its judgment dated September 11	 1961	 has confirmed the decisions of the Subordinate Courts accepting the claim of the plaintiff and dismissed the second appeal. Mr. R.B. Datar	 learned counsel for the appellants	 urged two contentions: (1 ) The view of the High Court that the right to Watan properties goes along with the service to be performed by the person registered as Nawa Wala	 is erroneous and is contrary to the Wat Hukum No. 26 of Fasli 1323. (2) The view of the High Court and the two S.subordinate Courts that there is Nashtamsha in the line of Maya Gouda	 is errcneous	 as apart from there being the daughter	 the 7th defendant	 the appellants are also heirs	 being the nearest reversioners and	 as such	 entitled to succeed. We may deal with both the contentions together. It 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 Wain. In this case	 though the plaintiff as the registered Nawa Wain was doing service	 it is seen that the suit properties were in possession of Jakkawwa	 the widow of Maya Gouda who died about 30 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 Gouda 's branch had become Nashtamsha. Mr. Datar further contended that the expression 'Nashtam sha ' 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 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 346 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 o	f Kolhapur	 in Dada Patil 's Case (1) 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. From these decisions it follows that in the 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 plaintiff 's specific claim was that under the law obtaining in Kolhapur State	 the 7th defendant was only the daughter of Maya Gouda and could 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 that the 7th defendant	 the daughter of Maya Gouda	 was entitled to inherit the properties. All the Courts have accepted the plaintiff 's plea	 and decreed his claim. Mr. Datar	 learned counseL	 referred us to the decision of the Division Bench of the Bombay High Court in Shivgonda @ Appasaheb Virgonda Patil vs Champabai Bharatar Sidgonda @ Racsaheb Shidgonda Patil (2). That judgment was delivered on (1) (1945) Kol. L.R. 541. (2) Appeal N9. 297 of 1957 from original decree	 decided on 7 12 1962. 347 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 Vathukums 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." According to. this decision	 Maya Gouda 's 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. We may also refer to a Division Bench decision of the Mysore High Court in Sambaii Ramachandra Kulkarni vs Gopal Govind Dattaward(1) 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 Shivgonda 's case(2)	 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. 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 be	fore the first Appellate Court	 or in the High Court	 or even before this Court. In the result	 the appeal fails and is dismissed with costs. V.P.S. Appeal dismissed. (1) (2) Appeal No. 297 of 1957 from original decree	 decided an 7 12 1962.

Summary:
The suit lands were patilkiwatan lands in the erstwhile State of Kolhapur. Under the wat hukum No. 26 of Fasli 1323	 the service was to be performed by persons in the eldest branch	 but the properties need not necessarily be with the person doing the service. Thus	 though the respondent was registered 'as the Nawa wala and was doing service	 the properties were in possession of another branch. The widow of the last holder of the properties	 in that branch	 died in 1943 leaving a daughter. The respondent	 thereupon	 filed a suit claiming the properties on the ground that	 under the wat hukum	 the other branch had become Nashtamsha	 that is	 extinct	 because there was no direct male descendant	 and that he was entitled to get possession of the properties from the appellants. who were in possession. The suit was decreed by the Subordinate courts and the High Court. In appeal to this Court	 HELD: In Kolhapur State succession to watan properties was governed by the war hukum and not by ordinary Hindu law. In Dads Babaji Patil vs Kalgonda Babgonda Patil	 (1945) Kol. L.R. 541	 a decision of the Supreme Court of Kolhapur	 followed in S.A. No. 210 of 1947 by the High Court of Kolhapur	 it was held that a branch became Nashtainsa when the deceased person left behind him no sons. But	 according to Shivgouda vs Champabai Bharatar Siaganda App. No. 297/57 (dt. 7 12 1962) of the Bombay High Court	 a branch cannot be said to be Nashtamsha if the last holder leaves a daughter. But	 whatever may be the correct interpretation	 the appellants could not succeed	 because	 if the view of the Kolhapur courts is accepted	 the respondent	as Nawa wala	 was entitled to get possession	 and if the Bombay view is according to Shivgonda vs Champabai Bharatar Siaganda App. No. 297/57 who. would be entitled to inherit the watan properties. [348 B E: 349 B. E G] Sambaji Ramachandra Kulkarni vs Gopal Govind Dattawad	 	 referred to.