# NAGESH BISTO DESAI ETC. ETC v. KHANDO TIRMAL . DESAI ETC. ETC - **Citation:** [1982] 3 S.C.R. 341 - **Court:** Supreme Court of India - **Decided:** 1982-03-02 - **Case number:** 'civil Appeals Nos. 615-617/ 73, 618-20/73 and 1850 to 1852 of 1972 - **Bench:** 0. Chinnappa Reddy, A.P. Sen, Baharul !Slam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nagesh-bisto-desai-etc-etc-v-khando-tirmal-desai-etc-etc-8328 - **Pages:** 30 ## Headnote Bombay P0rgana and Kulkarni Watans Abolition Act 1950-Section 4(1} and Bombay Merged Territories Miscellaneous Alienations Abolition Act 1955-Section 7-Scope Of-Wotan properties if impartible-Members of joint family-If entitled to a share in the wata11 projUfties. · The plaintiff's father was the last holder of the office of Desai. After bis Cleath the plaintiff, whb W!J.S his eldest son, was recognised as the watandar. In B c 1904 service appurtenant to the office of Desai was commuted.by the imposition D of 'judi' or quit-rent. Under s. 4 (l) of the Bom~ay Pargana and Kulkarni Watans (Abolition) Act, 1950 ands. 7 of the Bombay Merged Territories MiscelJaneous Alienations Abolition Act, 1955 all the watan lands were re-granted to the plaintiff and he was deemed to be the occupant thereof Within the meaning of the Bombay Land Revenue Code. The plaintiff (appellant) filed a suit against respondents wlio were members of a joint Hindu family holding properties described as Kundgol Deshg8t Estate claiming a declaration that the estate formed.an impartible estate governed by the rule of lineal primogeniture. The plaintiff claimed that as the present holder of the office of Desai he was entitled to remain in full and exclusive J)ossession and enjoyment of the suit properties and that other members of the family bad no right, title or interest therein but were only entitled to maintenance and residence and in the alternative for partition and separation of 1/6 share therein. Denying all the plaintiff's claims the respondents pleaded that the entire properties belonged to the joint Hindu family and were therefore liable to be partitioned. E F Rejecting all the claims of the appellant the Trial Court held that the proG perties belonged to the joint Hindu Family and were therefore partible. On appeal the High Court, subject to a modification, upheld the decree of the court of first instance. The question at issue in the appeal to this· Court was whether, (I) oven assuming that the estate was impartible and governed by the rule of lineal primogeniture by custom as pleaded, the ig~i~!lts of im~arti~i~itr M well M t~~ ~.I~ ~( H A B c D E F G 342 SUPREME COURT REPORTS [1982) 3 s.c.R. · lineal primogeniture being nothing more than an incident of the watan, stood abrogated bys. 3(4) of the 19SO Act ands. 4 of the 19S5 Act and as such it was not open tO the plaintiff to make any claim on the basis of the alleged custom, (2) with the resumption of the watan and the re-grant of the watan lands to him, the suit properties lost their character as being joint family property and had become, under the provisions of the 1950 and 1955 Acts, the plaintiff's exclusive property by reason of his status as watandar and as such wefc not capable of being partitioned. Dismissing the appeal, HELD : It is well settled that property though impartible may bo the ances- ~ tral property of the Joint Hindu Family. The impartibility of the estate doe5 not per se destfoy its nature as joint family _property or render it the separate property of the last holder, so as to destroy the right of survivorship; hence, the estate retains its character of joint fami1y property and its devolution is governed by the rule of survivorship. To establish that a family governed by the Mitakshara in which ther~ is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implie.d, on the part of the junior members of the family to renounce their succession to the estate. [3S4 C-D] Marland Rao v. Malhar Rao; [!928] SS IA 4S: AIR 1928 PC 10: 107 IC 7: Adrishappa v. Gurushidappa, (1880) 7 IA 162: !LR (1880) 4 Bom. 494: 7 Cal. LR 1 (PC); Vinayak Waman Joshi Rayarlkar v. Gopal Hari Joshi Rayarikar, [1903] 30 IA 77: !LR (1903) 27 Born. 3S3: 7 Cal. WN 409; Shiba Prasad Singh v. Rani Prayag Kumarl Debi, (1932) S9 IA 331: AIR 1932 PC 216: 138 IC 861; Collector of Gorakhpur v. Ram Sundar Mal, (1934) 61 IA 286: AIR 1934 PC 157: CIT v. Dewan Bahadur ## Text _Characters 0–39,877 of 69,732. This is a partial read: ask again with offset=39877 for what follows._ If 341 A NAGESH BISTO DESAI ETC. ETC. v. KHANDO TIRMAL . DESAI ETC. ETC. March 2, 1982 [0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL !SLAM, JJ.) Bombay P0rgana and Kulkarni Watans Abolition Act 1950-Section 4(1} and Bombay Merged Territories Miscellaneous Alienations Abolition Act 1955-Section 7-Scope Of-Wotan properties if impartible-Members of joint family-If entitled to a share in the wata11 projUfties. · The plaintiff's father was the last holder of the office of Desai. After bis Cleath the plaintiff, whb W!J.S his eldest son, was recognised as the watandar. In B c 1904 service appurtenant to the office of Desai was commuted.by the imposition D of 'judi' or quit-rent. Under s. 4 (l) of the Bom~ay Pargana and Kulkarni Watans (Abolition) Act, 1950 ands. 7 of the Bombay Merged Territories MiscelJaneous Alienations Abolition Act, 1955 all the watan lands were re-granted to the plaintiff and he was deemed to be the occupant thereof Within the meaning of the Bombay Land Revenue Code. The plaintiff (appellant) filed a suit against respondents wlio were members of a joint Hindu family holding properties described as Kundgol Deshg8t Estate claiming a declaration that the estate formed.an impartible estate governed by the rule of lineal primogeniture. The plaintiff claimed that as the present holder of the office of Desai he was entitled to remain in full and exclusive J)ossession and enjoyment of the suit properties and that other members of the family bad no right, title or interest therein but were only entitled to maintenance and residence and in the alternative for partition and separation of 1/6 share therein. Denying all the plaintiff's claims the respondents pleaded that the entire properties belonged to the joint Hindu family and were therefore liable to be partitioned. E F Rejecting all the claims of the appellant the Trial Court held that the proG perties belonged to the joint Hindu Family and were therefore partible. On appeal the High Court, subject to a modification, upheld the decree of the court of first instance. The question at issue in the appeal to this· Court was whether, (I) oven assuming that the estate was impartible and governed by the rule of lineal primogeniture by custom as pleaded, the ig~i~!lts of im~arti~i~itr M well M t~~ ~.I~ ~( H A B c D E F G 342 SUPREME COURT REPORTS [1982) 3 s.c.R. · lineal primogeniture being nothing more than an incident of the watan, stood abrogated bys. 3(4) of the 19SO Act ands. 4 of the 19S5 Act and as such it was not open tO the plaintiff to make any claim on the basis of the alleged custom, (2) with the resumption of the watan and the re-grant of the watan lands to him, the suit properties lost their character as being joint family property and had become, under the provisions of the 1950 and 1955 Acts, the plaintiff's exclusive property by reason of his status as watandar and as such wefc not capable of being partitioned. Dismissing the appeal, HELD : It is well settled that property though impartible may bo the ances- ~ tral property of the Joint Hindu Family. The impartibility of the estate doe5 not per se destfoy its nature as joint family _property or render it the separate property of the last holder, so as to destroy the right of survivorship; hence, the estate retains its character of joint fami1y property and its devolution is governed by the rule of survivorship. To establish that a family governed by the Mitakshara in which ther~ is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implie.d, on the part of the junior members of the family to renounce their succession to the estate. [3S4 C-D] Marland Rao v. Malhar Rao; [!928] SS IA 4S: AIR 1928 PC 10: 107 IC 7: Adrishappa v. Gurushidappa, (1880) 7 IA 162: !LR (1880) 4 Bom. 494: 7 Cal. LR 1 (PC); Vinayak Waman Joshi Rayarlkar v. Gopal Hari Joshi Rayarikar, [1903] 30 IA 77: !LR (1903) 27 Born. 3S3: 7 Cal. WN 409; Shiba Prasad Singh v. Rani Prayag Kumarl Debi, (1932) S9 IA 331: AIR 1932 PC 216: 138 IC 861; Collector of Gorakhpur v. Ram Sundar Mal, (1934) 61 IA 286: AIR 1934 PC 157: CIT v. Dewan Bahadur Dewan Krishna Kishore, (1941) 68 IA lSS: AIR 1941 PC 120; Anant Bhikappa Patil v. Shankar Ramchandra Patil, (1943) 70 IA 232: AIR 1943 PC 196 and Chlnnathayl v. Kulasekara Pandiya Naicker, [19S2] SCR 241; AIR 19S2 SC 29, relied on. Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur v. Shri Pushavathi Visweswar Gajapalhi Raj, [1964] 2 SCR 403: AIR 1964 SC 118 and Rajah Ve/ugoti Kumara Krishna Yachendra Varu v. Rajah Velugoti Sarvagna. Kumara Krishna Yachendra Varu, (1969) 3 SCC 281: [1970) 3 SCR 88: AIR 1970 SC 1795, distinguished. Neelklslo Deb Burmono v. Beerchunder Thakoor, (1867-69) 12 MIA 523; Rani Sarlaj Kuari v. Rani Deoraj Kuari (1888) 15 IA Si: !LR (1888) 10 All 272 (PC); Rama Krishna Rao Bahadur v. Court of Wards, (1899) 26 IA 83: !LR (1899) 22 Mad. 383 (PC); Raja Ram Rao v. Raja of Pillapur, (1918) 4S IA 148: AIR 1918 PC 81; Baifnath Prasad Singh v. Tej Bali Singh, (1921) 48 IA 19S: AIR 1921 PC 62 and Bhaiya Ramanuj Pralap Deo v. Lalu Maheshanuj Pratap Deo (1981) 4 SCC 613, referred to. 2. The plaintiff's contention runs counter to the scheme of the Bombay jlereditar1 ()fli~e· j\ct, 1874, ~114 io aoainst settled legal principles. The plain- NAosslI v. KHANOO riRMAL (Sen, J.) tiff's rights to such watan properties, whatever they were, were subject to the rights of the other members of tho family. [359 C-D] In the former Bombay Presidency, a Desghat watan had always been treated to be the joint family property and the grant of watan to the eldest member of a family did not make the watan property tho exclusive property of the person who A was the watandar for tho time being. B 3. The definition of the term Hwatandar" as contained in s. 4 of the Bombay Hereditary Offices Act is in two parts: the first sets out what "watandar" means and the other states what is included in it, that is, the entire definition of watandar must be looked upon as one, the latter part being supplementary and additional to what is contained in first part. Thus, a person who acquired watan property or held hereditary interest in it without acquiring the hereditary office and without being under an obligation to perform the services attached to such office was also a ''watandar" within the meaning of the Watan Act. There can be no doubt that the Watan Act was designed to prcServe to pre-existing rights of the members of a joint Hindu family. The expression ''wataD.dar Of the same watan'' would include members of the fainily other than thewatandar, who were entitled to remain in possession and enjoyment of the watan prOperty. [359 G-H 361 F] Vijaysingrao Balasaheb Shinde Desai v. Janardanrao Narayanrao Shind~ Defai, 51 Bom. LR 556: AIR 1949 Bom. 314; Kadappo Bapurao Desaiv. Krishtappa Bachappa Desai, 37 Bom. LR 599: AIR 1935 Bom. 380 and Laxmibai Sa4a· shi• Dal• v. Gan•sh Shankar Date, (1977) 79 Born. LR 234: AIR 1977 Bom. 350, approved. Tarabai Sriniwa• Naik Gutta/ v. Murtacharya Anantacharya, 41 Born., LR 924: AIR 1939 Bom. 414, overruled. 4. The commutation Of service under •. 15(3) of the Watan Act by which the watandars were relieved in perpetuity from liability to perform the services attached to their offices in consideration of 'judi' or quit-rent charged·upon the watan land unless where it was otherwise provided for, had not the effect of con~ verting watan land into the private property of the watandars with the necessary incident of the alionability, but to leave thorn attached to tho hereditary offices, which although free from tho performance of services, remain in tact. Dospile commutation of service, the office of watandars ordinarily survived without liabi~ lity to perform service, and on that account the character of the watan lands still remained attached to the grant. [364 D-F] Co/let:tor of South Satara v. Laxman Mahadev D'3hpand•, [1964] 2 SCR 48: AIR 1964 SC 326, relied on. Appafl Bapufl v. K'4hav.Slumlrav, ILR (1891) 15 Bom. 13, referred to. Bachhararn Datta Patil v. Vishwanath Pundalik Patil, [1956] SCR 675: AIR 1957 SC 34: 1956 SCJ 721, referred to. c D E F G H A B c D 344 SUPREME COUkT RllPORTS [19821 3 s.c.R. 5. The irnpartibility of the watan lands of the applicability or the rule of lineal primogeniture regarding succession to the estate, by the alleged custom as plead· ed, being nothing more than an incident of the watan, stood extinguished by s.3(4) of the 1950 Act and s.4 of the 1955 Act. The effect of these Acts was to bring out a change in the tenure or character of holding as watan lands but they did not affect the other legal incidents of the property under the personal law. That being so, the members of a joint Hindu family must be regarded as holders of the . watan land along with the watandar for the time being and therefore the re8:rant of the lands to the watandar under s. 4(1) of the 1950 Act and under s. 3 of the 1955 Act must enure to the benefit of the entire joint Hindu family. (365 C, E; 367 E] 6. Section 4(2) of the 1950 Act ands. 7(3) of the 1955 Act do not create a statutory bar to a transfer or a. partition once the conditions mentioned therein are fulfilled. [370 BJ , Laxmibai Sadashiv Datt v. Ganesh Shankar Date, (1977) 79 Born. LR 234: AIR 1977 Born. 350 and Dhondi Vithoba Kofi v. Mahadeo Dagdu Kofi, (1973) 75 Born. LR 290: AIR 1973 Born. 323, approved. Kalgonda Babgonda Patil v. Balgonda Ka/gonda Patil, (1975) 78 Born. LR 720, overruled. CIVIL APPELLATE JURISDICTION: 'civil Appeals Nos. 615-617/ 73, 618-20/73 and 1850 to 1852 of 1972. From the Judgment and Decree dated the 22nd June, 1962 of the Mysore High Court at Bangalore in Regular Appeal No. 157/56 E Regular Appeal (Bl No. 16/57 & RA (B) 6 of 1958. F G U.R. La/it, S.S. Javali D.P. Singh & Ravi Parkash, for the Appellants in CA. 1850-52/72, R-5 in CA. 615/73, R-2 i.n CA. 616/73, R-6 in CA. 617/73 and R-3 in CA. Nos. 618-20/73. B.D. Bal, R.B. Datar & Miss Madhu Moolchandani, for the Appellant in C.A. Nos. 615-617/73, R-5 in CA. Nos. 1850-52/72 & for R-1 in CA. Nos. 618-620/73. S.T. Desai, K. N. Bhat & Nanjappa Ganesh for Appellant in CA. 618-620/73, RR 2 and 3 in CA. 1850 to 1851/72, RR. 2,3, 17 & 18 in CA. 1852/72, RR 2, 3 in CA. 615/73, RR 10 & 11 in CA. 616/73 & for RR l, 2, 4,5 in CA. 617/73. S.B. Bhasame, K.A. Naik, & M.R.K. Pillai for R-1 in CA. Nos. 1850-52/72, CA 615-16/73, R·l4 in CA. 617173 and R-2 in CA. 618-620/'13. H K.R. Nagaraja & Alok Bhatacharya for R-12 in CA. Nos. 1850-52/72, CA. 615/73, R-9 in CA. 617/73, R-13 in.CA. 617/73 and R·!O in CA, 618-620 of 1973. ._ '* NAOESH v. ltHANDo TIRMAL (Sen, i.) P.R. Ramasesh, for RR 13, 15 (a) to (c) in CA. 1852/72, RR 15 & 17 in CA. 617/73 and RR 11, 14 (a) (c) and (d) in CA. 6l8/73. The Judgment of the Court was delivered by SEN, J. These nine consolidated appeals on certificate are directed from a common judgment and decree of the High Court of Mysore at Bangalore dated June 22; 1962 which affirmed, subject to a modification, the judgment and decree of the Civil Judge, Senior Division, Dharwar, dated July 5, 1956, substantially dismissing the plaintiff's claim for declaratioμ of title to, and possession of, certain watan properties and decreeing instead his alternative claim for partition and separate possession of his one-sixth share therein. The- principal question in controversy in these appeals is whether ss. 3 and 4 of the Bombay Paragana and Kulkarni Watans Abolition Act, 1950 (for short 'Act No. 60 of 1950') and ss. 4 and 7 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 (for short 'Act No. 22 of 1955'), which provided for abolition of watans and alienations in the merged territories, resumption of watan land and its re-grant, to the holder for the time being, which brought about a change in the tenure or the character of holding as watan land, affect the other legal incidents of the property under personal law. The suit out of which these appeals arise, was instituted by the appellant Nagesh Bisto Desai, as plaintiff, claiming against his two brothers Ganesh Bisio Desai and Gopal Bisio Desai defendants Nos.2 & 3, mother Smt. Akkavva alias Parvathibai, defendant No. 4, brother Bhimaji Marland Desai, defendant No.5 who had gone in.adoption to Marland, member of a junior branch and father's brother's son Khando Tirmal Desai, defendant No. I, a declaration that the properties described in Schedules B and C appended to the plaint, called the I)undgol Deshgat Estate, situate in the district of Dharwar in the State of Karnataka, formed an impartible estate and governed by the rule of lineal primogeniture and that the plaintiff being the present holder of the office of Desai was entitled to remain in full and exclusive possession and enjoyment of the suit properties and that the other members of the family had no right, title or interest therein but were only entitled to maintenance and residence, for exclusive possession of the family residential house at Kundgol known as Wada described in Schedule B part 2 from the defendants Nos. 2 to 5, for exclusive possession of insignia of honour described in Schedule E and one-third share in the family movables described 'A· 8 c D ,F G H A B c D E F G H 346 SUPlllME couat Rl!Mats (1982) 3 s.c.l. in Schedule D. Alternatively, in the event of the Court holding that the properties des.cribed in Schedule B, C and D, were properties belonging to the joint Hindu family, the plaintiff claimed partition and separate possession of his one-sixth share therein. It will be convenient, in 'the first place, to refer briefly to the history of the estate, to set out the pedigree showing the descent from a common ancestor and to show how the present case arose. The plaintiff's suit is brought on the allegation that the Deshgat family of Kundgol Paragana of which the plaintiff and the defendants 1 to 4 are members is a very ancient and respectable one in the State of Jamkhandi which later merged in the then Province of . Bombay and is now in the State of K.arnataka. The lands and cash allowances described in Schedule B para (i) and (iii) are the emoluments of the district hereditary office of Desai. Abkari is the compensation given to the Desai family by the British Government when it took over the control of today and liquor in Hanchinal Inam Village from the Deshgat family. This amount, together with the cash allowance and the service lands appurtenant to the office of Desai and the houses and open sites form the impartible estate called the Kundgol Deshgat Estate, which was partly located within the territory of former fendatory State of Jhamkhandi and party in the territories of the then British India. The first inam was granted at the time of Thimappa in 1575. All the properties constituting the Deshgat were acquired under grants made by the Sultans and Rulers of Bijapur during the period from 1575 A.O. to 1694 A.O. with a couple of other grants received from the Chief of Jamkhandi during the period from 1120 A.D. to 1826 A.D. The watan has remained with the family which held the hereditary office of Desai for over four centuries. In 1904, service appurtenant to the office of Desai was commuted by the imposition of a "judi" or quit-rent. Properties described in Schedules F a~d G have been in possession of the two junior branches descended frooi Gundopant and Lingappa from 1825 A.O. and 1854 A.O. respectively and are being enjoyed by them even now. The plaintiff's father, Bistappa, the last holder of the office of Desai died on July 27, 1931 leaving behind him his widow Smt. Akkavva and four sons, Nagesh, Bhimrao, Ganesh and Gopal. Out of them, Bhimarao had gone in adoption to Marland. member of a junior branch. Upon, his father's. death the plaintiff Nagesh Bisio Desai was recognised to be the watandar. The plaintiff's cousin is Khandappa. The subjoined genealogical' table gives the relationship of the parties belonging to the senior branch descended from Thimappa. l Nagesh (plaintiff) ) GENEALOGICAL TABLE I I Rama pp a I . Bistappa (adopted) I I Ramappa (died 1924) I Bistappa (died 193 J) =Smt. Akkevva (Deft 4) I I Bhimrao (went in adoption to Marland) I Khanderao I Thimappa I I Nagappa I I Pantoji· I . I Gundopant I Nilkant ! Mallappa I Marland I Bistappa (went in adoption) I lmnagappa I I Tirmallappa I Khandappa (Deft. 1) Ganesh=Smt. Indirabai (Deft. 2) (Deft. 9) I Bhimrao (Adopted Deft. 5) Gopal=Smt. Kashibai (Deft. 3) (Deft. 10) 348 SUPREME COURT REPORTS (1982] 3 s.c.a. A It appears that after the death of the plaintiff's father in 1931, in the mutation proceedings that followed, the plaintiff first made a claim that the watan being impartible according to the custom of the family, he became the exclusive owner of the entire watan properties. Although his brothers Ganesh Bisio Desai and Gopal Bisto Desai, B defendants 2 and 3 had at first consented to mutation of the watan in his name they later resiled from that ~osition and the strongest opposition came from the plaintiff's uncle Tirmal, father of Khando. In consequence of this, the plaintiff accepted before the revenue authori ties that the properties belonged to the joint Hindu family and refraiC ned from making any claim on the footing of the properties being impartible. In 1945, the plaintiff's brother Bhimarao defendant No. 5 who .had gone in··adoption to Marland, started asserting a claim to 7. Mars of land and right of residence in the family Wada and this bad the support of the plaintiff's mother Smt. Akkavva. The defendant D . No. 5 Bhimarao in assertion of his claim brought Special Suit No. 51 ·of 1949, in the Civil Court at Kundgol on the basis of the properties being impartible. In June 1946, the plaintiff leased out some home farm lands to defendants 6, 7 and 8, and this gave rise to proceedings un~er s. 144 of the Code of Criminal Procedure, 1898. The Sub-Divilsional Magistrate Kundgol passed an order restraining defendants 2, 3 and \5 from disturbing the possession of defendants F 6, 7 and 8 and this \>rder was kept in. force by the former State of ·- Jamkhandi till merger in the former State of Bombay in August, I 948. The State Government revoked the order with effect from December 15, 1948, as a result of which the defendents 6, 7 and 8 brought suits for injunction. Due to discord in the family, the plaintiff left the ancestral residential house at Kundgol and started residing in his bungalow. The plaintiff has admittedly been regranted all the watan land under sub-s. (I) of s. 4 of Act No. 60 of G 1950 ands. 7 of Act No. 22 of 1955 as if it were an unalienated h land, being the bolder of the watan to which it appertained, and he is deemed to be an occupant thereof within the meaning of the Bombay Land Revenue Code, 1879. The defendants filed separate written statements and repudiated the plaintiff's claim of imPartibility. They denied that the suit l NAGBSH v. KHANDO 'IIRMAL (Sen, i.\ 349 properties formed an impartible estate and that succession to the estate was governed by the rule of lineal primogeniture. The defendant No. I asserted that there had been at least three partitions in the family. According to him, the allotment of the properties described in Schedules F and G to the two branches of Gundopant and Lingappa represented allotment of shares 'on partition. He pleaded that all the properties described in Schedules B C D and E were joint family properties and claimed one-half share therein. The defendants Nos. 2 and 3, in their written statement, also asserted that the properties described in Schedules F and G to the two branches of Gundopant and Lingappa were shares allotted to them on partition. The defendant No. 4 supported the case pleaded by her sons defendants Nos. 2 and 3. The defendant No. 5, however, pleaded that there had never been a p:.rtition in the family and that the entire properties, that is to say, the properties described in the plaint Schedules B to G continued to be joint family properties wherein he claimed one-fourth share. The remaining defendants also denied that the suit properties were impartible. A B c D The learned trial Judge rejected the plaintiff's claim that he 'E was entitled to remain in full and exclusive possession and enjoyment of the aforementioned properties being the watandar of the Kundgol Deshgat Estate and that other members had no right, title or interest therein except as to maintenance as junior members and held instead that properties belonged to the joint Hindu family and were, therefore, partible. He further held that the properties described in Schedules F and G in possession of the junior branches of Gundopant and Lingappa were not allotted to them as their share on partition and therefore had to be put into th.e hotchpot. He accordingly passed a preliminary decree for partition, declaring the plaintiff's share to be one-twentyfourth of the entire estate and to other minor reliefs. On appeal, the High C!>urt upheld the judgment of the trial Judge, holding that the suit properties were not impartible and were therefore liable to partition, but it set asido F G H A B c D E 35() (1~82) j S.C.R. the direction with regard to Schedules F and G properties on the finding that the two branches of Gundopant and Lingappa had separated from the jt>int family. It accordingly modified the decree of the learned trial Judge and held that the plaintiff was entitled to one-sixth share in the properties described in Schedules B to E. Arguments in these appeals have been confined to the question as to whether, as a matter of law, even if it were assumed that the plaintiff had succeeded in proving that the Kundgol Deshgat Estate was an impartible estate, and. that succession to it was governed by the rule of lineal primogeniture,· the incident of impartibility of the watan as well as the rule of lineal primogeniture stand extinguished by Act No. 60 of 1950 and Act No. 22 of 1955, and it is no longer open to the plaintiff to make any claim on the basis of the alleged custom of impartibility or the rule of lineal primogeniture. The questions that fall for determination in these appeals are, firstly, whether the impartibility of the tenure of a paragana watan appertaining to the office of a Hereditary District (Paragana) Officer in respect of which a commutation settlement has been effected, regulating succession to the property, by reason of family custom or a local custom being the incidents of such watan stands abolished by virtue of s. 3 of Act No. 60 of 1950 ors. 4 of Act No. 22 of 1955, and, secondly, whether the watan lands lost the character of being joint family property with the resumption of the watan under s. 3 of Act No. 60 of 1950 or s.4 of Act No. 22 of 1955 and re-grants thereof were exclusive to the plaintiff under s. 4 of Act No. 22 of 1955, by reason of his status as the watandar and therefore, they belonged to the plaintiff and were not capable of partition. There is no merit in any of these submissions. It is argued that impartibility of the tenure was not an inciG dent of the grant but the watan was impartible by custom and succession to it was governed by the rule of lineal primogeniture. Our attention is drawn to the averment contained in paragraph 3 of the plaint: H "The Kundgol Deshgat Estate, along with the estates of two other District Hereditary Offices of Nadgir and , ..... NAGESH v. ttHANDO TIRMAL (Sen, J.) 351 Deshpande of Kundgol is impartible by custom and succession to it is governed by the rule of lineal primogeniture. This custom is ancient, invariable, definite and reasonable. It is both a family custom and also a local custom prevailing in the families of Paragana Watandar of Kundgol " It is urged that in case of an impartible estate, the right to partition and the right of joint enjoyment arc from the very nature of the property incapable of existence and therefore, the courts below were in - error dismissing the plaintiff's claim for a declaration that being the present holder of the office of Desai he was entitled to exclusive possession and enjoyment of the suit properties. It is further urged that even assuming that impartibility of the estate or the rule of primogeniture regulating succession were an incident of the watan the suit properties lost the character of being joint family property with the resumption of the watan and the re-grants of the suit lands were exclusively to the plaintiff under sub-s. (I) of s 4 of Act No. 60 of 1950 and sub-s. (I) of s. 7 of Act No. 22 of 1955, by reason of his status as the watandar and, therefore, they exclusively belonged to the plaintiff and they were not capable of being partitioned. There is no merit in the submission. The decision of these appeals must turn on the question whether the impartibility of the estate and the rule of lineal primogeniture by which succession to it was governed makes the suit properties the self acquired or exclusive properties of the plaintiff and, therefore, cannot be partitioned by metes and bounds between the members of the joint family .. In Marland Rao v. Malhar Rao,(') the Privy Council ruled as follows : "If an impartible estate existed as such from before the advent of British Rule, any settlement or regrant thereof by the British Governmnt must, in the absence of evidence to the contrary, and unless inconsistent with the express terms of the new settlement, be presumed to continue the estate with its previous incide1113 of impartibility and succession by special custom.'' It also held in that case : (I) L.R. [1928] SS I.A. 4~, • A c 0 E. F G A B c D E F .G H 352 SUPREME COURT REPORTS [1982] 3 s.C.R. "When there is a dispute with respect to an estate being impartible or otherwise the onus lies on the party who alleges the existence of a custom different from the ordinary · law of inheritance, according to which custom the estate is to be held by a single member, and as such, not liable to partition. In order to establish that any estate is impartible, it must be proved that it is from its nature impartible and descendible to a single person, or that it is impartible and descendible by virtue of a special custom." "Any such special custom modifying the ordinary law of succession must be ancient and invariable and must be established to be so by clear and unambiguous evidence." The courts below in their well considered judgments have considered minutely and elaborately the whole of the evidence, both oral and documentary, led by both the parties on the question of custom, and have come to a definitive finding that the evidence is of little or no assistance to establish the alleged custom pleaded by the plaintiff as to the impartibility of the estate or the rule of lineal primogeniture. They have held in favour of the defendants on this basic issue and substantially dismissed the plaintiff's suit claiming full and exclusive title. That part of the judgment has rightly not been assailed before us, and the argument has proceeded on the footing that even if the Kundgol Dcshgat Estate were an impartible estate, and that succession to it was governed by the rule of lineal primogeniture the incidents of impartibility of the watan as well as the rule of lineal primogeniture stand exting.uished by Act No. 60 of 1950 and Act No. 22 of 1955. It bas always been the accepted view that the grant of watan to the eldest member of a family did not make the watan properties the exclusive property of the person who is the watandar for the time being. In order to understand the arguments on this point, it is necessary to deal with the incidents of a Deshgat watan. In the Bombay Presidency, it has always been treated to be the joint (amily property. It may be worthwhile to refer to the decision of the Privy Council in Adrishappa v. Gurshindappa,(1) the headnote of which is that : (!) i,,R. (1880) 7 J,A. 162. i NAGESH v. ICBANDO TIRMAL (Sen, J.) ."Deshgat watan or property held as appertaining to the office of Desai is not to be assumed prima facie to be impartible. The burde_n of proving the impartibility lies upon the Desai, and on his failing to prove a special tenure or a family or district or local custom to that effect, the ordinary law of succession applies." 353 In a suit for partition of property forming part of a Deshgat estate brought by the younger brothers against their eldest brother who held the hereditary district office of Desai, partly within the State of Jamkhandi and partly within the territory of British India, the defence was that the watan was held by him as an impartible estate and that he was entitled being the watandar to be in full and exclusive possession thereof, subject to a right by custom, that a brother should receive maintenance out of the income derived from it. The Court of first instance having found that there was no invariable rule against the partition of a Deshgat watan, the High Court refused to allow effect to be given to what had not been proved to be "the established governing rule of the family, class or district" sufficient to establish. the impartibility of the estate and held that the watan in question was subject to the general Hindu law, including the presumption as to the right to partition belongin~ to the members of the family to which it had descended. The Judicial Committee upheld the decision of the High Court holding that there was no general presumption in favour of the impartibility of an estate of this kind as to shift the burden of proof; the burden of proof was upon the Desai, who seeks to show that the property devolved upon him alone, in contra\'.ention of the ordinary rule ·or succession according to the Hindu law, and that no sufficient evidenee had been given by the watandar either of family custom, or of district custom, to prevent the operation of the ordinary rule of law whereby the property would be partibJe. In Vinayak Woman Joshi Rayarikar v. Gopal Hari Joshi Rayarikar & Ors.,(1) th.e Court of first instance held that by custom a Deshgat Inam had become impartible and hence dismissed the suit for pai:tition. On appeal, the High Court reversed upon the view that the mere fact that the management remained in the hands of th~ ~*IQst ~ranch was not sufflcieot to ~1) L.R. (1903) 30 I.A. 77, A B c D ll F G c -o E F ff 354 (1982} 3 s.c.R. establish the plea that the estate was impartible. While affirming. the decision of the Higlt Court, the Privy Council followed its earlier decision in Adrishappa 13 caJe (supra), and aereed with the conclusion arrived at by the Hlah Court that : "Neither by the terms of the original grant nor of the subsequent orders of the ruling power, nor by family custom, nor by adverse possession (if such there could be in a case like this, the eldest branch of the family acquired a right to perpetual management of the villaae or in conse- . quence to resist its partitio~}." It is a trite proposition that property though impartible may be the ancestral property of the joint Hindu family. The impartibility of property does not per se destroy its nature as joint family property or ren~er it the separate property of the last holder, so as to destroy the right of survivorship; hence the estate retains its character of joint f amity property and devolves by the general law upon that person who being in fact and in law joint in respect of the estate is also the senior member in the senior line. As observed by Sir Dinsbaw Mulla in his celebrated judgment in Shiba Prasad Singh v. Rani Prayag Kummi Debi & Ors.' (1) "The keynote of the whole position, in their Lordships view, is to be found in the following passage in the judgment in the Tipperah case :(2) ''Where a custom is proved to exist, it supersedes the general'' law, which, however, still regulates an beyond the custom" "Jmpartibility is essentially a creature of custom. ·In the case of ordinary joint family property, the members of the family have (I) the right of partition, (2) the right to restrain alienations by the head of the family except for necessity, (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 secon