# Mahajan J. Fazl Ali J. delivered a separate judgment v. Sri1natya

- **Citation:** [1952] 1 S.C.R. 153
- **Court:** Supreme Court of India
- **Decided:** 1949-02-08
- **Case number:** Civil Appeal No. 87 of 1950
- **Bench:** SAIYID FAZL Au, Mehr Chand Mahajan, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahajan-j-fazl-ali-j-delivered-a-separate-judgment-v-sri1natya-224
- **Pages:** 20

## Headnote

153
Gkatwali tenures-Birbhum ghatwals--Succession-Widouls right
to succeed in preference to nearest male agnate when family is joint
-Custom-Hindu law-Regulation XXIX of 1814 .
Held by the Full Court-Amongst the Birbhum ghatwals,
when the holder of a ghatwali dies leaving a widow but no direct
lineal descendants;,
the widow succeeds in preference to the
, nearest male agnate, even though the family may be a joint
family.
Per MAHAJAN and BosE JJ.-The Mitakshara rule that the
property inherited by a person from his
immediate
paternal
ancestors becomes ancestral in his hands, and his sons, grandsons
and great-grandsons acquired a right in it at the moment of their
birth has no application to Birbhum ghatwali tenures.
The word "descendents" is used in Regulation XXIX of 1814
loosely in the sense
of "heirs" and does not mean
lineal
descendants.
FAzL ALt (-Custom and usage are important factors governing
succession to ghatwali property, and while in some cases custom
may develop on the lines of Hindu law 'relating to succession
owing to 'repeated instances of tacit and unquestioned
application of the law, in other cases succession to ghatwali property
may be governed not entirely by Hindu Jaw but by such law as
modified in ,certain respects by usage and custom.
Eulbati Kumari v. Maheswari Prasad (A.I.R. 1923 Pat. 453)
distinguished.
CML
APPELLATE
JmusmCTioN :
Civil
Appeal
No. 87 of 1950. Appeal from the Judgment and Decree
dated 8th February, 1949, of the High Court of Judicature at Patna (Manohar Lall and Mahabir Prasad JJ.)
in Appeal ~o. 38 of 1946 arising out of decree dated
the 18th December, 1945, of the Subordinate Judge of
Deoghar in Title Suit No. 1 of 1939.
B. C. Dey (S. C. Ghose, with him) for the appellant.
M. C. Sctal.vad (Kanhaiyaji, with him) for the re,s..
pond~nt.
1951
Nov. 29.
154
SUPREME COURT REPORTS
[19521
1951
Tik_ait Hargobind
Prasad Singh
1951. November 29. The Judgment of Mehr Chand
Mahajan
and
Vivian Bose JJ.
was
delivered
by
Mahajan J. Fazl Ali J. delivered a separate judgment.
v.
Sri1natya
Phaldani
Ku'nlari.
Mahajan f.
MAHAJAN J.-The question involved in the appeal ,
relates to the right of succession to six Birbhum ghatwalis governed by Regulation XXIX of 1814, annexed
to Gaddi Pathrol and lying within Tapasarath in the
Santhal Parganas.
The genealogy
of
the contestants
appears from the following pedigree table :-
Digbijoy Singh
I
.-----~~~~~~~~~~~~~~--...
G
hi . .
1.s.
. I .
1 I .
uro an Smgh
Kanha1 1ngh
Bhairo Singh i Ba ram Singh
(Ghatwal)
I
I
I
Pratar Singh
I
I
·s· h
.
I
I
.
Banwart mg
Pitambar Katku Singe
Bharat Singh
(Died
(Ghatwal)
issueless)
I
Kharagdhari Singh
(Ghatwal)
I
.
Ram Chandra Smgh
(Ghatwal)
I
r1
Brijbehari Singh
(Ghatwal)
K · I
d s· .
nshna Prasa
1ngh
(Ghatwal)
I
---..
I
Sarju Prasad Singh
(Original plaintill)
Hargobind Prasad Singh
(Substituted plaintifl)
,.~.~~~~~~~~
I
Kali Prasad Singh
(Ghatwal)
I
Pha ldani Kumari
(Defendant)
I
I
Durga Prasad
(Died issueless)
Tikait Kali Prasad
Singh,
the
last
gaddidar
of
Pathrol, died in the year 1935.
He belonged to the
Baisj..Chaurasi clan.
On the 29th November, 1935, the
...
' •
..
'
..
~.
-
S.C.R.
SUPREME COURT REPORTS
155
Commissioner of Bhagalpur Division recognized· Smt.
Phaldani Kumari as the next ghatwal and entitled to
be maintained in poosession of the ghatwali estate. On
the 30th November\ 1936, Sarju. Prasad Singh brought
the suit out of which this appeal arises in forma pauperis in
the
court of · the Subordinate
Judge of
Deoghar for possession of the ghatwalis. In paragraphs
7, 8 and 10 of the plaint it was alleged that the ghatwalis in suit were joint family property and were im-
. partible by
custom ; that succession
to them was
governed by the law of lineal primogeniture ; that the
females
and
persons
claiming through them were
altogether excluded from inheritance.
It was claimed
that the late Tikait Kali Prasad Singh and the plaintiff were members of a joint Mitakshara family and
that he alone as the eldest member of the eldest su

## Text

_Characters 0–39,616 of 42,019. This is a partial read: ask again with offset=39616 for what follows._

.. '
_...,.,....,
..
S.C.R.
SUPREME COURT REPORTS
TIKAIT HARGOBIND PRASAD SINGH
ti.
SRIMATYA PHALDANI KUMARI.
[SAIYID FAZL Au, MEHR CHAND MAHAJAN, and
VIVIAN BosE JJ.]
153
Gkatwali tenures-Birbhum ghatwals--Succession-Widouls right
to succeed in preference to nearest male agnate when family is joint
-Custom-Hindu law-Regulation XXIX of 1814 .
Held by the Full Court-Amongst the Birbhum ghatwals,
when the holder of a ghatwali dies leaving a widow but no direct
lineal descendants;,
the widow succeeds in preference to the
, nearest male agnate, even though the family may be a joint
family.
Per MAHAJAN and BosE JJ.-The Mitakshara rule that the
property inherited by a person from his
immediate
paternal
ancestors becomes ancestral in his hands, and his sons, grandsons
and great-grandsons acquired a right in it at the moment of their
birth has no application to Birbhum ghatwali tenures.
The word "descendents" is used in Regulation XXIX of 1814
loosely in the sense
of "heirs" and does not mean
lineal
descendants.
FAzL ALt (-Custom and usage are important factors governing
succession to ghatwali property, and while in some cases custom
may develop on the lines of Hindu law 'relating to succession
owing to 'repeated instances of tacit and unquestioned
application of the law, in other cases succession to ghatwali property
may be governed not entirely by Hindu Jaw but by such law as
modified in ,certain respects by usage and custom.
Eulbati Kumari v. Maheswari Prasad (A.I.R. 1923 Pat. 453)
distinguished.
CML
APPELLATE
JmusmCTioN :
Civil
Appeal
No. 87 of 1950. Appeal from the Judgment and Decree
dated 8th February, 1949, of the High Court of Judicature at Patna (Manohar Lall and Mahabir Prasad JJ.)
in Appeal ~o. 38 of 1946 arising out of decree dated
the 18th December, 1945, of the Subordinate Judge of
Deoghar in Title Suit No. 1 of 1939.
B. C. Dey (S. C. Ghose, with him) for the appellant.
M. C. Sctal.vad (Kanhaiyaji, with him) for the re,s..
pond~nt.
1951
Nov. 29.
154
SUPREME COURT REPORTS
[19521
1951
Tik_ait Hargobind
Prasad Singh
1951. November 29. The Judgment of Mehr Chand
Mahajan
and
Vivian Bose JJ.
was
delivered
by
Mahajan J. Fazl Ali J. delivered a separate judgment.
v.
Sri1natya
Phaldani
Ku'nlari.
Mahajan f.
MAHAJAN J.-The question involved in the appeal ,
relates to the right of succession to six Birbhum ghatwalis governed by Regulation XXIX of 1814, annexed
to Gaddi Pathrol and lying within Tapasarath in the
Santhal Parganas.
The genealogy
of
the contestants
appears from the following pedigree table :-
Digbijoy Singh
I
.-----~~~~~~~~~~~~~~--...
G
hi . .
1.s.
. I .
1 I .
uro an Smgh
Kanha1 1ngh
Bhairo Singh i Ba ram Singh
(Ghatwal)
I
I
I
Pratar Singh
I
I
·s· h
.
I
I
.
Banwart mg
Pitambar Katku Singe
Bharat Singh
(Died
(Ghatwal)
issueless)
I
Kharagdhari Singh
(Ghatwal)
I
.
Ram Chandra Smgh
(Ghatwal)
I
r1
Brijbehari Singh
(Ghatwal)
K · I
d s· .
nshna Prasa
1ngh
(Ghatwal)
I
---..
I
Sarju Prasad Singh
(Original plaintill)
Hargobind Prasad Singh
(Substituted plaintifl)
,.~.~~~~~~~~
I
Kali Prasad Singh
(Ghatwal)
I
Pha ldani Kumari
(Defendant)
I
I
Durga Prasad
(Died issueless)
Tikait Kali Prasad
Singh,
the
last
gaddidar
of
Pathrol, died in the year 1935.
He belonged to the
Baisj..Chaurasi clan.
On the 29th November, 1935, the
...
' •
..
'
..
~.
-
S.C.R.
SUPREME COURT REPORTS
155
Commissioner of Bhagalpur Division recognized· Smt.
Phaldani Kumari as the next ghatwal and entitled to
be maintained in poosession of the ghatwali estate. On
the 30th November\ 1936, Sarju. Prasad Singh brought
the suit out of which this appeal arises in forma pauperis in
the
court of · the Subordinate
Judge of
Deoghar for possession of the ghatwalis. In paragraphs
7, 8 and 10 of the plaint it was alleged that the ghatwalis in suit were joint family property and were im-
. partible by
custom ; that succession
to them was
governed by the law of lineal primogeniture ; that the
females
and
persons
claiming through them were
altogether excluded from inheritance.
It was claimed
that the late Tikait Kali Prasad Singh and the plaintiff were members of a joint Mitakshara family and
that he alone as the eldest member of the eldest surviving line of the descendants of the common ancestor
was entitled to succeed to them.
The defendant in her written statement denied this
claim and contended that Birbhum ghatwalis governed
by Regulation XXIX of
1814 are not and cannot be
in the nature of joint family property but that the
perso'n who succeeds and holds the tenure as ghatwal
is the sole proprietor and owner thereof.
It was
pleaded that the properties being the exclusive and
separate properties of the ghatwal for the time being,
the defendant, his widow, was entitled to succeed to
them in preference to the plaintiff under the Mitakshara school of Hindu law which admittedly governed
the family of the parties. The pleadings of the parties gave rise to the following issues :-
I. Whether succession to the
ghatwalis
tion is governed by the customs alleged m
the plaint?
in
quespara 7 of
2. Did the ghatwalis in question form joint family
property of Kali Prasad Singh,
his
ancestors in
the
'direct line and of Sarju Prasad Singh and the plaintiff ?
3. Did Kali Prasad
die in a state of jointness
with Sarju Prasad Singh?
4-3 S.C India·/71
1951
Tik.ait Hargobind ·
Prasad Singh
v.
Sn'matya
Phaldani
Kumari.
Mahajan /.
1951
Tikait Hsrgobind
Prasad Singh
v.
Srimatya
Phaldani
Kum11ri.
Mahajan /.
-
156
SUPREME COURT REPORTS
[1952]
4.
Are the
ghatwalis
for
defendant?
ghatwals the sole
the
time
being
proprietors of
the
as
alleged
by the
5. Whether the plaintiff or the defendant 1s entitled to succeed to the properties in suit ?
Issues 2, 3 and 4 were found by the trial Judge m
favour of the plaintiff and against the defendant.
It
was held that Kali Prasad Singh died in a state of
jointness with Sarju Prasad Singh and that ·the ghatwalis in question were their joint family property
and
that the plaintiff the
eldest surviving coparcener
in
the eldest line of Digbijoy Singh's descendants was entitled to succeed to them in preference to the widow.
It was common ground between the parties tl1at in
case the properties were held to be the separate properties of Kali Prasad Singh,
the widow was entitled
to succeed to them.
As a result of these findings the
plaintiff's suit was decreed with costs.
On appeal
by
the widow to the High Court, this decree was reversed
and the plaintiff's suit
was
dismissed
with costs. It
was held that the character of the ghatwali tenures in
question was such that they could not be regarded as
joint property of the plaintiff and the last ghatwal and
that being w,
the
defendant was entitled to succeed
to them.
The learned counsel for the appellant based his
arguments on the thesis that the ghatwali estates in
question were
of
the
same nature and character as
joint family impartible estates governed by the Mitakshara law and that the rule of survivorship applicable
to such estates: was also applicable
to
them.
It
~as
contended that the High Court was in error in holding
thar the suit properties exdusively belonged to Kali
Prasad
Singh or
that there
was anying peculiar in
these tenures which differentiated them from other
ghatwalis in the Santhal Parganas or from oilier impartible estates known to Hindu law and which peculiarity incapacitated them from being included within
the definition of coparcenary property.
The plea that females were by custom excluded
from inheriting ghatwali tenures in Birbhum was
..
•
. '
0-
,.
>
S.C.R.
SUP'.REME COURT REPORTS
157
dropped in the two courts below and was not raised
before us ; so also the point of custom set out in para. 7
of the plaim and covered by issue I was not seriously
urged.
The learned Attorney-General, while conceding that
succession to these tenures was governed by the Mitakshara law, contended that in no sense could they be
regarded as joint family property and that their peculiar characteristics precluded the acquisition of any
right by birth by members of a joint Hindu family
in them. He also urged in the alternative that the
widow was entitled to succeed to them, assuming
them to be joint family property under custom.
. The courts below have given elaborate judgments
in the case and reference has been made to a large
number of decided cases.
In our opinion, the main
point that needs decision is whether the suit ghatwalis
were to be regarded as joint family or separate properties of the deceased.
For a solution of this problem it is necessary to refer first to the nature and main
incidents of a ghatwali tenure.
Its origin is now well
known.
In Moghul times grants of land were made
to selected persons who were appointed guardians
of
the
mountain passes for protecting
the countryside
against hill invaders and the office held by these persons bore the designation "ghatwal".
These
grants
were made in some cases directly by· the ruling power
and in other cases by the zamindar ·responsible
by
custom for . the maintenance of security and order
within the estate as consideration for the performance
of the duties.
By efflux of time these grants assumed
the form of an actual estate in land,
heritable
and
perpetual, but conditional upon services certain or
services to be demanded.
Reference to some of the decided cases rdating to
Birbhum ghatwali
tenures will sufficiently indicate
their nature and character.
·
In Har/al Singh v. /orat{an. Singh(1), it was held
that a ghatwali estate in Birbhum was not divisible
;
(I) 6 Select. Rep. 20,..
"
21
1951
TiftaitHargo~intl
Prasatl Sinzh
v.
Srimatya
Phalrlani
Kumari.
Mahajan /.
1951
Tikait Hargobind
Prasad Singh
..
v.
Srimatya
Phaldani
Kumari.
Mahajan /.
158
SUPREME COURT REPORTS
[1952]
on the death of a ghatwal, amongst his heirs but
should devolve entirely on the eldest son or the next
ghatwal.
It was said that ghatwali lands are grants
for particular purposes, especially of police, and to
divide them into small portions amongst the heirs of
the ghatwals would defeat the very
ends for which
the grants were made.
In Satrukchunder
Dey v. Bhagat Bharutchunder
Singh('), a decision of the year 1853, it was stated
that the ghatwali tenures in Birbhum were not private
property of the ghatwals but lands assigned by the
State in remuneration for specific police
services
and·
were not alienable or attachable for personal debts.
Mst. Kustooree Koomaree v. Monohar Deo(2), Loch J.
took the view that succession to ghatwalis is
regulated
by no rule of kulachar or family custom, nor by the
Mitakshara law, but solely by
the nature of the
ghatwalis tenure, which descends undivided to the
party who succeeds to and holds the tenure as ghatwal
and that a female is not incapable of holding a ghatwali tenure. It was said that-
"the party who succeeds to and holds the tenure
as ghatwal must be, and has always been, looked
upon as sole proprietor thereof, and, therefore, the
other members of the family cannot claim to be
coparceners and entitled to share in the profits of the
property,
though they may, by the permission and
goodwill of the incumbent, derive their support, either
from some portion of the property which he may have
assigned to them, or directly from himself."
In Binode Ram Sein v. Deputy Commissioner of
Santhal
Parganas('), (on review 7 W. R.
178) it
was
held that the rents of a ghatwali tenure are not
liable for the debts of the former deceased
holder of
the tenure. The reason for the decision was that the
tenure was
held for the purpose of public
~ervices
and those who perform the services are entitled to the
whole of the remuneration.
(1) 9. S.D.R. 900.
(3) 6 W.R. 129.
(2) 1864 W.R. (Gap Nos.) 39.
..
.. .
~
•
,
S.C.R.
SUPREME COURT REPORTS
159
In Tikait Durga Prasad Singh v. Teketnee D_urga
Kuari(1), it was urged that female's right to inherit
was inconsistent with a ghatwali estate.
This
contention was negatived and reference was made to the
fact that many ghatwali estates were held by females
and it was observed that it was difficult to hold that
a ghatwali estate must necessarily be held
by
male
heirs. This case further suggests that in a case where
it is held proved that the family was joint, succession
to Birbhum ghatwali may
be regulated by the same
rule of Hindu law as is, applicable to the ·devolution
of impartible estates.
In Ram Narain Singh v. Ramoon Paurey(2), another
Birbhum ghatwali case, it was held that the ghatwal
for the time being was only entitled to interest on the
compensation money obtained for
compulsory acquisition of a part of the ghatwali interest but that he
could not spend the corpus of it which had to devolve
on the next heir -intact.
So far as Birbhum ghatwalis are concerned, it is
only the above mentioned cases to which our attention
was drawn.
I
'"
"'
Reference in. this connection is also necessary to the
terms of Regulation XXIX of 1814. Sections I and
II of the Regulation which are material 'to this enquiry
are in these terms:-
I. Whereas the lands held by the · class
of
persons
denominated Ghautwauls, in the district of Beerbhoom,
form a peculiar tenure to which the provisions of the
existing Regulations are not
expressly
applicable ;
and
whereas
every
ground exists
to believe
that,
according to the former usages and constitution of the
country, this class of persons are entitled to hold their
lands, generation after generation,
in
perpetuity, subject
nevertheless
to
the
payment
of
a fixed and
established rent to the zemindar of Beerbhoom, and to
the performance of certain duties for the maintenance
of the public peace and support of the police; and
whereas the rents payable by those tenants have been
(1) 20 W.R. 154.
(2) 23 W.R. 376.
1951
Tikait Hargobiml
Pmsad Singh
v.
Srimatya
Phaldani
Kumari.
Mahajan /.
1951
Tikait Hargobind
Prasad Singh
v.
Srimatya
Phaldani
Kumari.
Mahajan /.
160
SUPREME COURT REPORTS
[1952]
recently adjusted, after a full and minute inquiry
made by the proper officers in the revenue department;
and whereas it is essential to give stability to the
arrangements now established among the Ghautwauls,
the following rules have been adoP,ted, to be in force
from the period of their promulgation in the district of
Beerbhoom.
IL A settlement having lately been made on the
part of the Government with the Ghautwauls in
the
district of Beerbhoom, it is hereby declare~ that they
and their descendants in perpetuity
shall
be
maintained in possession of the lands, so long as they shall
respectively pay the revenue at present assessed
upon
them, ...... "
The result of the decided cases and of the provisions
of the regulation is that the grantee of the tenure and
his descendants have to be maintained in possession
of the
land fo?m generation to generation conditional
upon services to · be rendered.
The tenure is however
liable to forfeiture for
misconduct
or
misbehaviour
of the ghatwal for the time being. The succession to
it is determined by the rule of lineal primogeniture.
It
is neither partible nor alienable (except in exceptional
cases with the consent of the government
or the
zamindar, as the case may
be). These two characteristics are inherent in its very nature and have not been
annexed to it by any rule of custom. The estate in the
hands of the last holder is not liable either to attachment or sale in execution of a decree against him ; nor
is it liable in the hands of his successor for payment
of his debts. When the succession opens out, the heir
determined according to law has to execute a muchilika
in favour of the grantor guaranteeing the
performance
of the duties annexed to the office and stipulating that
in case of misconduct or misbehaviour or non-fulfilment · of the obligations attaching to the office, as to
which the tenure is in the nature of a remuneration,
government will have the right to resume it.
In view of these peculiar characteristics of
a
ghatwali tenure in Birbhum which are so different from
other inheritances, we find it difficult to apply to it the
S.C.R.
SUPREME COURT REPORTS
161
1951
law of Mitakshara to the full extent. The essence of a
, coparcenary under the
Mitakshara law is unity of
ownership. As observed in K'atama Natchiar v. The Tikait Hargobinrl
Prasad Singh
Raja of Sivaganga(1), there has to be community of interest and unity of posses.sion between all the members
of the family, and upon the death of any one of them the
others may well take by
survivorship tliat in which
v.
Srimatya
Phaldani
Kumari.
they had during the deceased's lifetime a common interest
Mahajan ],
and a common possession. The incidents attaching to ,
a Birbhum ghatwali tenure rule out the existence
of
any notion of community of interest and unjty of possession of the members of the family with the holder for
the time being. He is entitled to be maintained in
exclusive possession of the ghatwali lands and the
devolution of the property is to him in the status of a
sole heir. This view finds support from the observations of Lord Fitzgerald in Kali Pershad v. Anand
Roy(2), though made in respect of a zamindari ghatwali, yet also appositely
applicable
to a government
ghatwali. His Lordship observed as follows:-
"Where, however, the Mitakshara governs,
each
son immediately on his
birth takes a share equal to
his father in the ancestral immoveable estate.
Having
regard to the origin and nature of ghatwali tenures and
their purposes and incidents as established
by decided
cases. most of which have been referred to in the
course of the argument, it is admitted that such a
. tenure
is in some particulars distinct from, and cannot be governed by, either the general objects of Hindu
inheritance as
above stated, or by the before-quoted
rule of the Mitakshara.
It is admitted that a ghatwali
estate is impartible
-that is to say, not subject to partition ; that the
eldest son succeeds to the whole to the exclusion of his
brothers. These are propositions that seem to exclude
the application of the Mitakshara rule that the sons
on birth each take an equal estate with the father and
are entitled to partition."
Similar opinion
was
expressed
m
Chhatradhari
Singh v. Saraswati Kumari('), by a
Bench
of
the
(!) (1861-3) 9 M.I.A. 543.
(3) (1895) I.L.R. 22 Cal. 156.
(2) (1888) I.L.R. 15 Cal. 471.
1951
Tikait Hargobind
Prasad Singh
v.
Srimatya
Phaldani
Kuniari.
Mahajan /.
162
SUPREME COURT REPORTS
[1952)
Calcutta High Court. The following passage from that
decision may be quoted with advantage :-
"The learned pleader for the appellant has however contended before us that, although this ghatwali
tenure is impartible, yet according to the decision of
their Lordships of the Privy Council in Chintaman
Singh v. Nowlukho Koonwari('), it is not necessarily
separate property, and that as their Lordships observe
'whether the general status of a Hindu family be joint
or undivided, property which is joint will follow
one
a rid
property which
is
separate
will
follow
another course of succession.'
The decision referred to
is no doubt an authority for the proposition that there
may be impartible
joint family
property, such as a
raj or other estate similar to a raj, but whether such
property is to be regarded as joint or separate would
appear to depend generally upon the character of the
property at its inception, such as the nature of the
grant, etc. creating ·it.
Having regard however to the
view we have already expressed as to the status of the
family in the present case,
and
as
to
the ghatwali
tenure having been the exclusive property of Ananta
Narain, we think it is unnecessary to determine what
was originally the character of this tenure, although,
if we were called upon to decide the question,
tl!e
should be disposed to say, with reference to t./ie peculiar
character of these tenures as described in Regiilation
XX!X of 1814, that they were intended to be the exclusive property of the ghatwal for the time being, and
not joint family property in the proper sense of the
term.n
In Raja Durga Prashad Singh v. Tribeni Singh('),
again it was said as follows :-
"It
was certainly
an advantage
to
the
whole
family that one of their members should hold the office
and the tenure. He could put other members of the
family into minor offices and grant them snbordinate interests commonly called jotes, and he could and
would generally provide for the family in the manner
(1) 13 W.R. 21.
(2) (1918) 45 I.A. 251.
,1" A
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-
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S.C.R.
SUPREME COURT REPORTS
163
···-··----
expected of its head.
But i:his is a long way off mak1951
ing him a trustee for the family or treating the
gha~ Tikait Hargobind
wali estate as possessed by the family and reducing the
Prasa4 Singh
v.
Srimatya
Phaldani
ghatwali to the position of karta ;or managing head of
the• family.
Their Lordships do not find that the
incidents of ghatwali tenure are such as to give the family ,
h
Kumari.
any rights over the property while it is in t e hands
of the ghatwal, and they find themselves upon this
point in full agreement with the courts in India."
In Narayan Singh v. Niranjan Chakravarti(1), Lord
Sumner made
an exhaustive review of the decided
cases and examined the whole position of ghatwali
lienures generally and observed that where the tenure
is hereditary, a recognized right to be appointed ghatwal takes the place of a formal appointment and
a recognized right in the superior to dismiss, the ghatwal if he is no longer able and willing to render the
service required by his tenure, and to appoint another
to the office and the tenure of the lands, then readily
suffices to maintain in perpetuity the incidents of
the
tenure.
'
In these circumstances
1 t 1s not possible to
hold
that the Mitakshara rule that when a· person inherits
property from any one of his three immediate paternal
ancestors,
his
sons,
grandsons
and
great-grandsons
acquire an interest in it by birth can have any application to the case of these grants which are in the
nature of a remuneration for the performance of certain
services by the holder of that office.
A ghatwali has
to be regarded as something connected with an office
and as observed by Lord Sumner in the above mentioned case, the office cannot except by special custom,
grant or other arrangement, either run with lands or
be served from them. In other words, just as primogeniture and
impprtibility
are
handmai'ds,
similarly
the ghatwal's office and the ghatwali tenure are
two
inseparables and cannot be lodged in separate compartments. If the office cannot be in the nature of
coparcenary property, the tenure must follow the same
way.
Thus it is not easy to conceive that an interest
(1) (1924) 51 I.A. 37.
Mahajan ].
1951
Tikait Hargobind
Prasad Singh
v.
Srim.atya
Phaldani
Kum'ari.
Mahajan /.
164
SUPREME COURT REPORTS
[1952]
can be acquired at the birth of a member of a joint
family m a tenure which is annexed to an office, even
if it has descended from three immediate paternal
ancestors.
In certain eventualities
the
selecoion
of
the next heir depends on the choice of the rnling
authority and in case of misconduct or misbehaviour
of the holder for the time being the rnling power
cannot only dismiss the ghatwal but even resume the
tenure.
This is a feature which places this heritable
property in a class by itself as distinguished. from
other inheritances governed by the Mitakshara law.
The view that in Birbhum, ghatwali tenures are in
the nature of separate property or the exclusive property of the ghatwal finds support from the fact that
in many instances, whenever
succession
has opened
out in respect of them, it has been determined according to the Mitakshara rnle applicable to the devolution
of separate property irrespective of the
circumstance
whether
the
dec~ased dred in joint
or
.separate
status
with
the
other
members
of
the
family.
Thirteen instances of such practice in the past amongst
members of the Baisi-Chaurasi clan were proved in the
case, in all of which the widow succeeded in preference
to a male heir.
The learned trial Judge held that in
some of these instances the
female succeeded because
the agnate nearest in line was separate from her husband; as regards the others though he reached the conclusion that tl1e evidence of separation was weak,
he
thought that these did not establish a custom superseding in cases of joint family property the
rnle
of
survivorship. . The
High
Court
was of a different
opinion.
It· rightly remarked
that
while
numerous
instances of female succession to the estates held by
Baisi-Chaurasi gaddidars had been proved, not a single
instance of a female having been excluded from the appointment of a ghatwal on the ground of an agnate
being entitled to come in as a coparcener of the last
holder by survivorship had been proved, and that
in
these circumstances there
was force
in the
contention that even if the tenures in
question
were
ancestral . joint family property, succession thereto was
. .
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!
S.C.R.
SUPREME COURT REPORTS
165
governed by the Mitakshara rule applicable to separate
property.
~
·
For the reasons given above we held that the Mitak-
•
shara rule that the property inherited by a person
from his immediate paternal ancestors becomes ancestral in his hands -and in it his sons, grandsons and
great-grandsons_ acquire a right at the moment of the
birth has no apposite application to Birbhum ghatwali
tenures.
The learned counsel for the appellant in support ·of
his contention placed reliance on a number of decisions
of their Lordships of the Privy Council
concerning
impartible estates governed ·by the Mitakshara
law,
wherein it was held that the succession to an impartible estate which is the ancestral property of a joint
Hindu Family governed by the Mitakshara law
is
governed by the rule of survivorship subject to the
custom of impartibility ; the eldest member of the
senior branch of the family succeeding in preference
to the direct lineal senior descendants of the common
ancestor, if the latter is more remote in degree.
Particular reference was made to the remarks of Turner L. J.
in the Sivaganga case('), and to the observations in
Baijnath Prasad Singh v. Tej Bali Singh(2) and in the
case . ot 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 maintenance,
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 impartibility.
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 survivorship is not inconsistent with the custom of impartibility. This
right
(I) (1861-3) 9 M.I.A. 543.
(3) A.T.R. 1932 P.C. 216
(2) (1921) I.L.R. 43 All. 228.
22
1951
Tikait Hargobind
Prasad Singh·
v.
Srimatya
Phaldani
Kumari.
Mahaian ~·
1951
Tikaii'Hargobind
Prasad Singh
v.
Srimatya
Phaldani
Kumari.
Mahajan f.
)
166
SUPREME COURT REPORTS
[1952]
therefore still remains and to this extent the
estate
still retains 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 property 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
possible 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 o.f these tenures but by encroachments of custom on it.
Moreover, it appears that the
remarks relied upon were made in cases where the impartihle 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
whatever could be clothed or was clothed with any of
the incidents of cciparcenary property.
·
The Jearned counsel for. the appellant
placed considerable reliance on the observations of Sir Dawson
Miller C. J. in
Fulbati
Kumari
v.
Maheshwari
Prasad(').
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 devolves 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
(I) A.LR. 1923 Pat. 453.
. .
..
.~ .
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S.C.R.
SUPREME COURT REPORTS
167
property or it may be the property of a joint undivided family and that in the latter case
succession will
be regulated according to the rule \Of survivorship.
In
our opinion, these observations have no application to
the case of Birbhum 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 1s m
no way comparable to the Birbhum ghatwali tenures
and Regulation XXIX of 1814 does not apply to it."
The decision in the case proceeded on the assumption
that Birblrnm ghatwalis stood apart from other ghatwalis which stood on the same footing as impartible
estates governed by Mitakshara law.
The learned Attorney-General challenged the correcthess 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
caseC), and in Tipperah ca.Se(3).
There may be a
seeming conflict between the view expressed
in
those
decisions and the view expressed in Baijnath
Prasad
Sing/1 v. Tej Bali Singh(4 ), and in Shiba Prasad Singh
v. Rani Prayag Kumari Debi("). It seems to us however that these latter cases have settled the law applicable 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 resump6on of it in
favour of government 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
regrant is inconsistent with their
heritable
character.
Inheritance can never remain in abeyance and on the
(1) (1887-8) 15 I.A. 51.
( 4) (1921) I.LR. 43 All. 228.
(2) (1918) 45 I.A. 148
(5) A.LR. 1932 P.C. 216.
(3) (1867-9) 12 M.I.A. 523.
1951
Tikait Hargobind
Prasad Singh
v.
Srimatya
Phaldani
Kumari.
Mahaian /.
1951
Til(ait Hargobind
Prasad Singh
v.
Srimatya
Phaldani
Kumari.
Mahajan f.
168
SUPREME COURT REPORTS
[1952]
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 admittedly 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 wh$re
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.
Saraswati Kumarz"(').
It may further be pointed out that even if the contention 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
properties 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.
J. .....
.. ..,,
S.C.R.
SUPREME COURT REPORTS
169
definition of ancestral property given in Mitakshara.
1951 .
Sarju Prasad Singh,
uncle .of Kri&hna Prasad Singh, TikaitH8rgo~ntl
could acquire no right or interest in these properties by
Prasad Singll
birth enabling him to claim them by survivorship.
v.,
Kali Prasad Singh who inherited them on the death of
Srimatya
his father got them as his separate property as he
Ph.altiani
had no son who- could acquire any interest in them by
Kumari.
birth. With regard to this property the
widow
was
Mahajan /.
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 Au 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 Prasad
Singh v. Tribcni 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 l am not prepared to say that those
cases were wrongly decided, but I think .it. will not be
incorrect
to say that cus.tom and usage are also
important factors governing succession . tq
ghatwali
property, and it is conceivable. that while in some
cases custom may develop on the lines of Hindu la"'
relat:ing to succession owing to repeated instances
of
(1) (1918) 45 I.A. 251.
1951
Tikait Hargobind
Prasad Singh
v.
Srimatya
Phaldani
Kumari.
Fazl Ali/.
170
SUPREME COURT REPORTS
[1952]
tacit and unquestioned appliqtion of the law, in other
cas,es 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 preference 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 succe'-
•ion 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 concerned, 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 admittedly belong, the widow of the last
ghatwal succeeded in preference to a male agnate
'
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'
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S.C.R.
SUPREME COURT REPORTS
'.171
The trial judge however found that in four of these
1951
instances the nearest agnate who claimed the property . .
was separate from the ghatwal or his widow but in T•k••tHargobind
-
,
,
Pra Md Singh
the other instances, there was no evidence of separation, or\'~the evidence was weak", which, I take·it, is
s~;:,,y•
another way of saying that it could not be safely rePhatdani
lied on. It seems to me that these instances lend some
Kumari.
support to the view that Hindu law haS-been modified
by custom, so far as the Birbhum ghatwalis are conFail Ali J.
cerned, 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 them- ·
selves, 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 succession in such cases. The
strongest case which was relied upon by the appellant
is Fillbati Kmnari v. fl.faheshwari Prasad(') where it
was laid down that on the death of a ghatwal, 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.