# 3 S.C.R. SUPREME COURT REPORTS YELLAPPAGOUDA SHANKARGOUDA PATIL v. BASANGOUDA SHIDDANGOUDA PATIL - **Citation:** [1960] 3 S.C.R. 221 - **Court:** Supreme Court of India - **Decided:** 1960 - **Case number:** Civil Misc. Petition No. 530 of 1959 - **Bench:** P. B. Gajendragadkar, K. N. W Anchoo - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-s-c-r-supreme-court-reports-yellappagouda-shankargouda-patil-v-basangouda-1573 - **Pages:** 7 ## Headnote Hereditary Office-Decree for partition of Watan land upheld by Privy Council in appeal-Abolition of Privy Council's jurisdiction-Issue of certificate by Collector-Application for cancellation of decree, if can be entertained by the Supreme Court-Bombay Hereditary Offices Act, r874 (Bom. III of r874), s. IO-Abolition of Privy Council jurisdiction Act, r949 (V of I949), ss. 5, 8-Constition of India, Arts. 374(2), r35. T.he respondent brought a suit for partition against the petitioner in respect of certain Watan lands. The trial court decreed - the suit but the High Court of Bombay reversed that decree in appeal. The Privy Council restored the decree of the trial court and an Order-in-Council was drawn ('hp accordingly. Execution of the said decree was resisted by the petitioner on the ground that the lands in suit being admittedly remuneration attached to the office of the Patil and as such governed by the Bombay Hereditary Offices Act, r874 (Born. III of r874) were not liable to partition. A certificate under s. IO of the Act was issued by the Collector at the instance of the petitioner and the executing Court cancelled the execution case. The respondent appealed to the High Court and that court following its own Full Bench decision in Rachapa v. Amingouda, (I88r) V Born. 283, held the certificate to .be invalid since it was not addressed to the Privy Council which had passed the. decree and set aside the order of the executing court. Thereafter a fresh certificate under s. IO of the Act was issued by the Collector and addressed to this Court and the petitioner applied to this Court under that section for the cancellation of the said decree granted by the Order-in-Council, the Privy Council having ceased to have any jurisdiction in the meantime. The question for decision was whether as a result of • the constitutional changes this court could be said to have passed the decree and could entertain the petition. Held, that the petition must be allowed. · The combined effect of ss. 5 and 8 of the Abolition of the Privy Council Jurisdiction Act, r949, and Arts. 374(2) and I35 of the Constitution was that this petition which lay to the Privy Council before it ceased to exercise its jurisdiction, could be presented to the Federal Court before the commencement of the Constitution and thereafter to this Court. The certificate issued by the Collector and addressed to this t:ourt was, therefore, valid and must be given effect to. CIVIL APPELLATE JURISDICTION : Civil Misc. Petition No. 530 of 1959. • Match 9. 222 SUPREME COURT REPORTS [1960] r960 Petition for cancellation of the decree dated Yella;;,~ouda N ove~ber 25, 1_9~9, gr:'1nted to t~e Respondent by the Shankargouda PalilOrder-m-Counml m Privy Counml Appeal No. XI of v. 1948 . . Basangouda . G. K. Daphtary, Solicitor-General for India and Shiddangoudu Patil B. R. L. Iyengar, for the petitioner. K. R. Bengeri and A. G. Ratnaparkhi, for the respondent. 1960. March 9. delivered by The Judgment of the Court was Gajendragadkar ]. GAJENDRAGADKAR, J.-This petition has been made under s. 10 of the Bombay Hereditary Offices Act, 1874 (hereinafter called the Act), for cancellation of the decree granted to the respondent by the Order-inCouncil dated November 25, 1949, in so far as the said decree purports tp operate on or include any right to the office of the Patilki and 11 Watan lands attached thereto. These lands are situated at Kirtgeri in the Taluk of Gadag. They form part of a Watan and, according to the revenue records, they have been assigned as remuneration to the. officiator for the time being under s. 23 of the Act. The petitioner has obtained a certificate prescribed under s. 10, and he contends that as a result of the said certificate this Court should cancel the decree as claimed by him in the petition. It appears that the respondent had filed a suit against the petitioner in the Court of the First Class Sub Judge at Dharwar (Civq Suit No. 18 of 1934) and in the said suit he ha ## Text - y 3 S.C.R. SUPREME COURT REPORTS YELLAPPAGOUDA SHANKARGOUDA PATIL v. BASANGOUDA SHIDDANGOUDA PATIL (P. B. GAJENDRAGADKAR and K. N. W ANCHOO, JJ.) Hereditary Office-Decree for partition of Watan land upheld by Privy Council in appeal-Abolition of Privy Council's jurisdiction-Issue of certificate by Collector-Application for cancellation of decree, if can be entertained by the Supreme Court-Bombay Hereditary Offices Act, r874 (Bom. III of r874), s. IO-Abolition of Privy Council jurisdiction Act, r949 (V of I949), ss. 5, 8-Constition of India, Arts. 374(2), r35. T.he respondent brought a suit for partition against the petitioner in respect of certain Watan lands. The trial court decreed - the suit but the High Court of Bombay reversed that decree in appeal. The Privy Council restored the decree of the trial court and an Order-in-Council was drawn ('hp accordingly. Execution of the said decree was resisted by the petitioner on the ground that the lands in suit being admittedly remuneration attached to the office of the Patil and as such governed by the Bombay Hereditary Offices Act, r874 (Born. III of r874) were not liable to partition. A certificate under s. IO of the Act was issued by the Collector at the instance of the petitioner and the executing Court cancelled the execution case. The respondent appealed to the High Court and that court following its own Full Bench decision in Rachapa v. Amingouda, (I88r) V Born. 283, held the certificate to .be invalid since it was not addressed to the Privy Council which had passed the. decree and set aside the order of the executing court. Thereafter a fresh certificate under s. IO of the Act was issued by the Collector and addressed to this Court and the petitioner applied to this Court under that section for the cancellation of the said decree granted by the Order-in-Council, the Privy Council having ceased to have any jurisdiction in the meantime. The question for decision was whether as a result of • the constitutional changes this court could be said to have passed the decree and could entertain the petition. Held, that the petition must be allowed. · The combined effect of ss. 5 and 8 of the Abolition of the Privy Council Jurisdiction Act, r949, and Arts. 374(2) and I35 of the Constitution was that this petition which lay to the Privy Council before it ceased to exercise its jurisdiction, could be presented to the Federal Court before the commencement of the Constitution and thereafter to this Court. The certificate issued by the Collector and addressed to this t:ourt was, therefore, valid and must be given effect to. CIVIL APPELLATE JURISDICTION : Civil Misc. Petition No. 530 of 1959. • Match 9. 222 SUPREME COURT REPORTS [1960] r960 Petition for cancellation of the decree dated Yella;;,~ouda N ove~ber 25, 1_9~9, gr:'1nted to t~e Respondent by the Shankargouda PalilOrder-m-Counml m Privy Counml Appeal No. XI of v. 1948 . . Basangouda . G. K. Daphtary, Solicitor-General for India and Shiddangoudu Patil B. R. L. Iyengar, for the petitioner. K. R. Bengeri and A. G. Ratnaparkhi, for the respondent. 1960. March 9. delivered by The Judgment of the Court was Gajendragadkar ]. GAJENDRAGADKAR, J.-This petition has been made under s. 10 of the Bombay Hereditary Offices Act, 1874 (hereinafter called the Act), for cancellation of the decree granted to the respondent by the Order-inCouncil dated November 25, 1949, in so far as the said decree purports tp operate on or include any right to the office of the Patilki and 11 Watan lands attached thereto. These lands are situated at Kirtgeri in the Taluk of Gadag. They form part of a Watan and, according to the revenue records, they have been assigned as remuneration to the. officiator for the time being under s. 23 of the Act. The petitioner has obtained a certificate prescribed under s. 10, and he contends that as a result of the said certificate this Court should cancel the decree as claimed by him in the petition. It appears that the respondent had filed a suit against the petitioner in the Court of the First Class Sub Judge at Dharwar (Civq Suit No. 18 of 1934) and in the said suit he had claimed partition and possession of the properties as an adopted son of Shiddangouda. These properties were and are in the possession of the petitioner. The trial court passed a decree in favour of the respondent. The petitioner then preferred an appeal, No. 182 of 1935, in the High Court of Bombay. His appeal was allowed and the decree passed by the trial court was reversed. The respondent then challenged the High Court decree and went up to the Privy Council in Appeal No. 11 of 1948. His appeal was allowed, and the PriVl;. Council held that the decree passed by the trial court should be restored. Accordingly an Order-in-Council was drawn up on November 25, 1949;underthis order .. ' - 3 S.C.R. SUPREME COURT REPORTS 223 the respondent was entitled to recover by partition a I96o half share in the properties in. suit. He was also . fi d f 'll h Yellappagouda entitled to mesne pro ts, past an uture, ti t e Shankargouda Patil recovery of possession or three years and an enquiry v. was directed in that behalf. Amongst the properties Basangouda . in which the respondent had thus become entitled to Shiddangouda Patil claim a share are the 11 lands in question . In due course the respondent filed an execution Gajendragadkar l · application Darkhast No. 41 of 1950, in the Court of the Subordinate Judge at Dharwar. The petitioner then contended that the 11 lands in question 'were governed by the provisions of the Act, they were assigned as remuneration to the office of the Patil., and as such they could not be partitioned. ·rt was also urged on his behalf that in the original suit the respondent had not claimed any. declaration that he was entitled to the office of Patil and that without such a claim the 11 lands in question could not be claimed by the respondent. In support of these pleas the petitioner relied upon the provisions of the Act contained in ss. 7, 10, 11, 13, 24, 25 and 36. Pending the m;:ecution proceedings the petitioner applied for the grant of the prescribed certificate under s. 10 of the Act, and a certificate was accordingly issued by the Collector addressed to the Civil Judge, Senior Division, Dharwar. Thereupon the said court acted upon the certificate and cancelled the execution process which had been issued against the Patilki-a.ssigned property of Kirtgeri. The respondent challenged the said order before the Bombay High Court and his challenge was upheld by the said High Court. The High Court fo1lowed its own earlier Full Bench decision in Rachapa v. Amingouda(1) and held that the certificate issued by the Collector under s. 10 was invalid in that it was addressed not to the Privy Council which was the court which passed the decree but to the Civil Judge at Dharwar. In the result the order cancelling the execution process which had been • passed by the executing court was set aside and a direction was issued that the execution proceedings should proceed according to law. Thereafter the petitioner applied for a reissue of a certificate under s. 10 and prayed that the certificate (1) (1881) V Bom. 283, 224 SUPREME COURT REPORTS [1960] z96o should be addressed to this Court as in the meanwhile the Privy Council had ceased to have any jurisdiction ShYekllappagdouPda 1.1and this Court had become its successor. A certificate on argou a ai , 8 v. has accordingly been ISsued on January 13, 195 , Basangouda addressed to this Court. The certificate says that the Shiddangouda Patil property in question has been assigned as remunera- - tion to the office of Patil and as such it is inalienable Gajendragadkar ]. d t ) " bl t f · ·1 t d th an no la e o process o c1 v1 cour an so e process of attachment levied against the said property should be removed and the decree in so far as it relates to the said property should be cancelled. It appears that after this certificate was issued by the Assistant Commissioner, Gadag Division, the respondent filed an appeal to the Deputy Commissioner, Dharwar. His appeal, however, failed and the certificate issued by the Assistant Commissioner has been confirmed. It is with this certificate that the petitioner has moved this Court for the cancellation of the decree in question in regard to the 11 properties at Kirtgeri. On behalf of the respondent it has been urged before us that the decision of the Bombay High Conrt operates as res jud,icata and so, in view of the said decision, the present certificate also should be held to be invalid. The argument is that the effect of the decision of the Bombay High Conrt is that the certificate should have been addressed to the Privy Council, and since it is addressed to this Court it is in valid. We are not impressed by this argument. What the Bombay High Court has, held is that the certificate must be issued to the court which passed the decree, and if in law this Court can be said to be in effect and in substance the Court that passed the decree, then the certificate must be hel