# DANDU KALLAPPA PATIL & ORS v. BALAGONDA SULTANGOUDA PATIL

- **Citation:** [1970] 2 S.C.R. 342
- **Court:** Supreme Court of India
- **Decided:** 1969-09-11
- **Bench:** C. A. Vaidialingam, l. D. DUA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dandu-kallappa-patil-ors-v-balagonda-sultangouda-patil-4811
- **Pages:** 6

## Headnote

Nas111amsha, meaning of.
The suit lands were patilkiwatan lands in the erstwhile State of Kolhapur.
Under the wat hukum No. 26 of Fasli 1323, the servioe 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 \Vas registered as the Nawa wala and was doing service, the pro·
perties \Vere 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 Cecome
Nashtanzsha., 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
'uccession to watan
properties
was
governed by the wat hukwn and not by ordinary HinJu law.
In Dada
Babaii Patil v. Ka/gonda Bt.bgonda Patil, (19'45)
Kol. L.R.
541,
a
decision of the Supreme Court of Kolbapur, followed in S.A. No. 210 of
1947 by the High Court of Kolhapur, it was held that a branch became
Nashtamslia when the deceased person left behind him no sons.
But,
according to Shivgouda v. Champabai Bharatar Siagonda 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, be~
cause, if the view of the Kolhapur courts is accepted, the respondent,
as Nawa wala, was entitled to get possession, and if the Bombay view
i~
according to Shivgonda v. Champabai Bharatar Siagonda App. No. 297 /57
who would be entitled to inherit the watan properties. [348 B-E: 349 B.
B-GJ
Sambaji Ramchandra Kulkarni v. Gopal G<>vind
Dattawad,
(1960)
Mys. l.J. 441, referred to.
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## Text

342
DANDU KALLAPPA PATIL & ORS.
v.
BALAGONDA SULTANGOUDA PATIL
September 11, 1969
[C. A. VAIDIALINGAM AND l. D. DUA, JJ.]
Nas111amsha, meaning of.
The suit lands were patilkiwatan lands in the erstwhile State of Kolhapur.
Under the wat hukum No. 26 of Fasli 1323, the servioe 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 \Vas registered as the Nawa wala and was doing service, the pro·
perties \Vere 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 Cecome
Nashtanzsha., 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
'uccession to watan
properties
was
governed by the wat hukwn and not by ordinary HinJu law.
In Dada
Babaii Patil v. Ka/gonda Bt.bgonda Patil, (19'45)
Kol. L.R.
541,
a
decision of the Supreme Court of Kolbapur, followed in S.A. No. 210 of
1947 by the High Court of Kolhapur, it was held that a branch became
Nashtamslia when the deceased person left behind him no sons.
But,
according to Shivgouda v. Champabai Bharatar Siagonda 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, be~
cause, if the view of the Kolhapur courts is accepted, the respondent,
as Nawa wala, was entitled to get possession, and if the Bombay view
i~
according to Shivgonda v. Champabai Bharatar Siagonda App. No. 297 /57
who would be entitled to inherit the watan properties. [348 B-E: 349 B.
B-GJ
Sambaji Ramchandra Kulkarni v. Gopal G<>vind
Dattawad,
(1960)
Mys. l.J. 441, referred to.
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1560 of
G
1966.
Appeal by special leave from the judgment and decree dated
September 11, 1961 of the Mysore High Court in Second Appeal
No. tB) 43 o.f 1956.
.
R. B. Datar and S. N. Prasad, for the appellants.
R. Gopa/akrishnan and D. P. Mohanty, for the respondent.
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D. K. PATIL v. B. s. PATIL (Vaidia/ingam, 1.)
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 'N awa Wala' by
order No. 68 dated March 30, 1927 of the Revenue Authorities
of the thein 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 ratter could not inherit the inam properties under
the Jaw obtahning 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 s~or 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 expre0sion 'Nashtamsha' in
the relevant Wat Hukum means that there is no direct male descendant to inhP-rit 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 aind the same family and that
this fact had been 1dmitted by both the parties. In the end the
trial Court decreed the claim of the plaintiff to get possession of
SUPREME COURT REPORTS
[!970] 2 S.C.R.
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 <>f 194'.J, was disposed of by the Second
Extra Assista;nt Judge, Belgauni, 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 Assista;nt 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 1949, 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 c>f s. 3 of the Kolhapur Revenue
Jurisdiction Act.
On the questi<>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 Jeft behind him lll.O sons.
As authority for this proposition,
the Court relied upon the decision of the
Kolhapur Supreme
Court in Dada Babaji Patil v. Ka/gonda Babgonda Patil('). The
Court al~o referred to the later decision in S.A. 210 of 194 7.
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 defeindant, 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.
fin this view, the appeal filed by defendants 1 to 4 was
dismissed.
Defendants l to 4 filed a second appeal before the Bombay
High Court, which appeal, on reorgahisation of the States, was
--- ----
(!) (1~45) Kol. L. R. 541.
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D. K. PATIL v. B. s. PATIL (Vaidialingam, J.)
345
transferred to the Mysore High Court and registered as Second
Appeal Nb. 43 (B) of 1956. The Mysore High Court, by its
judgment dated September 11, 1961, has confirmed the decisionsof the Subordinate Courts accepting the claim of the plaintiff and
dismissed the secoind 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
c.f the High Court and the two Subordinate Courts that there is
Nashtamsha in the line of Maya Gouda, is errqneous, as apart
from there being the daughter, the 7th defendant, the appellants
are also heirs, being the nearest reversioners and, as such, entitl~d
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 ~n 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 GovefJlllilent for payme'lt to the person registered as Nawa
Wala. In this case, though the plaintiff as the registered Nawa
Wala was doing service, it is seen that the suit properties were in
possession .of J akkawwa, the widow of Maya Gouda who died
about 35 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
Nash tams ha.
Mr. Datar further contended that the expression 'Nashtamsha' 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 defe;ndant 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
SUPREME COURT REPORTS
[1970] 2 S.C.R.
recover possession of the properties.
~t is common ground that
the Wat Hukum provides fot the N awa Wala taking possession of
the properties if the family of a particular holder of Wat~ lands
becomes Nashtamsha.
The expression 'Nashtamsha' has come up
for consideration 'before the Courts in Kolhapur.
The Supreme
Court of Kolhapur, in Dada Patil's Case(') 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 allid remained in possession till her death.
On the death of the widow, the
reversionaty heirs of the deceased holder under Hindu Law
entered into possession of the properties.
The plaintiff in that
case, who had been registered as t'ie Nawa Wala by the Revenue
Authorities, sued to obtain possessio.n 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 'N ashtamsha'.
We have already referred
to the fact that these two decisions have be~ 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' wh~
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 !IliOt 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 aind that he, as the Nawa Wala,
was entitled to recover possession of the properties.
On the other
hand, defendants l 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, lear,ned counsel, referred us to the decision of the
Division B.~nch of the Bombay High Court in Shivgonda @ Appasaheb Virgonda Patil v. Champabai Bharatar Sidgonda @
Racsaheb Shidgonda Patil ( '). That judgment was
delivered on
(I) (1945) Kol. LR. 541.
{1) A".IP.!al No. 297 of 1957 from origin'll decree,de:ided on 7-12-1962.
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D. K. PATIL v. B, s. PATIL (Vaidialingam, J.)
347
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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 1n Kolhapur State, so far as this Court is
concerned it is well settled that 'Nashtamsha' docs not
mean a man dying without male issue but it means a
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man dying without leaving Jny heir.
Accordingly,
therefore, unlike the authorities in Kolhapur State, this
Court held that as Jong as there was a single heir, whether
male or female, to the deceased, it does not result in
'Nashtamsha' of the line."
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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 Sambaji Ramachandra Kulkarni v. Gopal Govind
Dattawqrd ( 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 Coun 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 lllecessary 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, ii 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 ~nherit 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 plaiintiff.
Nor did she file
any appeal against the decree of the trial Court. It has to be furt~er noted that even the appella:1ts have not made her a party,
either be.fore the first Appellate Court or in the High Conrt or
even before this Court.
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In the result, the appeal fails and is dismissed with cost~ .
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Appeal dismissed.
(1) (1960) Mys. L.J. 441.
(2) Appeal No. 297of1957 from original decree, decided an 7-12-1962.