1982 (3) TMI 276 - SC - Indian Laws

Appeals Dismissed: Joint Family Properties Partible, Impartibility Rule Extinct

Nagesh Bisto Desai and Ors. Versus Khando Tirmal Desai and Ors.

The appeals were dismissed, affirming the High Court's judgment that the suit properties were joint family properties and thus partible. The incidents of ... - Issues Involved:1. Impartibility of the Kundgol Deshgat Estate.2. Applicability of the rule of lineal primogeniture.3. Impact of the Bombay Paragana and Kulkarni Watans Abolition Act, 1950 (Act No. 60 of 1950) and the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 (Act No. 22 of 1955) on the watan properties.4. Rights of the plaintiff and other family members in the watan properties.5. Partition and regrant of watan lands.Detailed Analysis:1. Impartibility of the Kundgol Deshgat Estate:The plaintiff claimed that the Kundgol Deshgat Estate was impartible by custom and succession to it was governed by the rule of lineal primogeniture. The trial court and the High Court rejected this claim, holding that the properties were joint family properties and thus partible. The courts found that the plaintiff failed to provide sufficient evidence to establish the custom of impartibility. The judgment cited the Privy Council's ruling in Martand Rao v. Malhar Rao, which emphasized that the burden of proving a special custom of impartibility lies on the party asserting it.2. Applicability of the Rule of Lineal Primogeniture:The plaintiff argued that even if the estate was impartible, the rule of lineal primogeniture governed succession. The courts below found no merit in this argument, noting that the rule of lineal primogeniture, like the custom of impartibility, required clear and unambiguous evidence, which the plaintiff failed to provide. The judgment referenced the Privy Council's decision in Adrishappa v. Gurshindappa, which held that the burden of proving the existence of a custom different from the ordinary law of inheritance lies on the party alleging it.3. Impact of Act No. 60 of 1950 and Act No. 22 of 1955:The principal question was whether these Acts extinguished the incidents of impartibility and the rule of lineal primogeniture. The judgment concluded that the Acts brought about a change in the tenure or character of holding as watan land but did not affect other legal incidents of the property under personal law. The Acts provided for the abolition of watans, resumption of watan land, and its regrant to the holder as an occupant, thereby extinguishing the incidents of impartibility and special succession rules.4. Rights of the Plaintiff and Other Family Members:The plaintiff's claim for exclusive possession and enjoyment of the suit properties was rejected. The courts held that the properties were joint family properties and thus partible. The judgment emphasized that the grant of watan to the eldest family member did not make the watan properties the exclusive property of the watandar. The Watan Act and subsequent legislation were designed to preserve the pre-existing rights of the members of the joint Hindu family.5. Partition and Regrant of Watan Lands:The courts found that the regrant of watan lands under the Acts must enure to the benefit of the entire joint Hindu family. The judgment noted that the regrant of land to the watandar under the Acts did not make the land the exclusive property of the watandar but rather maintained its character as joint family property. The provisions of the Acts imposed restrictions on alienation and partition but did not create a statutory bar to partition once the conditions mentioned therein were fulfilled.Conclusion:The appeals were dismissed, affirming the High Court's judgment that the suit properties were joint family properties and thus partible. The incidents of impartibility and the rule of lineal primogeniture were extinguished by Act No. 60 of 1950 and Act No. 22 of 1955. The regrant of watan lands under these Acts enured to the benefit of the entire joint Hindu family, subject to restrictions on alienation and partition.