# SHIVAGONDA SUBRAIGONDA PATIL AND ORS v. RUDRAGONDA BHIMAGONDA PATIL AND ANR

- **Citation:** [1970] 2 S.C.R. 787
- **Court:** Supreme Court of India
- **Decided:** 1969-10-14
- **Bench:** S. M. SrKRI, G. K. Mitter, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shivagonda-subraigonda-patil-and-ors-v-rudragonda-bhimagonda-patil-and-anr-4946
- **Pages:** 9

## Headnote

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Wat Hukums-Kolhapur State-Patel-ki-Watan inam-lf could be
alie1U1ted contrary to Specific Wat Hukums-Bornbay Hereditary Offices
Act (Ill of 1814)-Applicability-Limitation Act, art. 142.
The respondent filed a suit against the appellant alleging that the latter
had sold the suit property to the respondent's father undertaking to re.
deem the mortgages and hand over possession of the property. It was
averred that the appellant, after redeeming the mortgages wrongfully retained possession of the properties contrary to the stipulation and the sale
effected in favour o'f the ·respondent's father.
The
appellant contested
the suit on the ground that the sale in favour of the respondent's father
was void under the then prevailing law in Kolhapur
State and that the
suit \Vas barred by limitation. The District Court decr(ed the suit and
the High Court confirmed.
On the
questions (i) whether according to
the law in force as could be ascertained from the relevant Wat Hukums
and the provisions of the Bombay Hereditary Offices Act (III of 1874)
in so far as it was applicable to the State Of Kolhapur, the alienation of
Pcte[.ki-Watan Inam land was void and (ii) whether the suit was barred
by Jimitation,
HELD : (i) On the construction of the various Wat Hukums the
alil'.'nation in favour of the respondent's father was invalid. The Bombay
Hereditary Offices Act did not apply to the Kolhapur State so as to override the specific directions of the Wat Hukums which had legal and binding force in the State. In this case there was a specific prohibition from
alienating Patel-ki-Watan and other similar inams.
[794 F, G]
Rangappa Venappa Ako/e v. Laxman Malyappa, 62 Born. L.R. 639,
referred to.
(ii) The suit was not barred by limitation. The suit was against a person who was not entitled to possession. The appellant did not dispossess
the respondent and as such Art. 142 Ci! the Limitation Act was not applicable.
[795 B-C]
CIVIL APPELATE JURISDICTION
Civil Appeal No. 734 of
G
1966.
H
Appeal by special leave from the judgment and order dated
April 20, 1964 of the Bombay High Court in Second Appeal
No. 1188 of 1958.
N. D; Karkhanis and A. G. Ratnaparkhi, for the appellant.
D. D. Verma, R. Mahalingier and Ganpat Rai, for the respondents.
LSS11p CI/70-5
788
SUPREME COURT REPORTS
[1970] 2 S.C.R.

## Text

787
A
SHIVAGONDA SUBRAIGONDA PATIL AND ORS.
v.
RUDRAGONDA BHIMAGONDA PATIL AND ANR.
October 14, 1969
B
[S. M. SrKRI, G. K. MITTER AND P. JAGANMOHAN REDDY, JJ.j
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Wat Hukums-Kolhapur State-Patel-ki-Watan inam-lf could be
alie1U1ted contrary to Specific Wat Hukums-Bornbay Hereditary Offices
Act (Ill of 1814)-Applicability-Limitation Act, art. 142.
The respondent filed a suit against the appellant alleging that the latter
had sold the suit property to the respondent's father undertaking to re.
deem the mortgages and hand over possession of the property. It was
averred that the appellant, after redeeming the mortgages wrongfully retained possession of the properties contrary to the stipulation and the sale
effected in favour o'f the ·respondent's father.
The
appellant contested
the suit on the ground that the sale in favour of the respondent's father
was void under the then prevailing law in Kolhapur
State and that the
suit \Vas barred by limitation. The District Court decr(ed the suit and
the High Court confirmed.
On the
questions (i) whether according to
the law in force as could be ascertained from the relevant Wat Hukums
and the provisions of the Bombay Hereditary Offices Act (III of 1874)
in so far as it was applicable to the State Of Kolhapur, the alienation of
Pcte[.ki-Watan Inam land was void and (ii) whether the suit was barred
by Jimitation,
HELD : (i) On the construction of the various Wat Hukums the
alil'.'nation in favour of the respondent's father was invalid. The Bombay
Hereditary Offices Act did not apply to the Kolhapur State so as to override the specific directions of the Wat Hukums which had legal and binding force in the State. In this case there was a specific prohibition from
alienating Patel-ki-Watan and other similar inams.
[794 F, G]
Rangappa Venappa Ako/e v. Laxman Malyappa, 62 Born. L.R. 639,
referred to.
(ii) The suit was not barred by limitation. The suit was against a person who was not entitled to possession. The appellant did not dispossess
the respondent and as such Art. 142 Ci! the Limitation Act was not applicable.
[795 B-C]
CIVIL APPELATE JURISDICTION
Civil Appeal No. 734 of
G
1966.
H
Appeal by special leave from the judgment and order dated
April 20, 1964 of the Bombay High Court in Second Appeal
No. 1188 of 1958.
N. D; Karkhanis and A. G. Ratnaparkhi, for the appellant.
D. D. Verma, R. Mahalingier and Ganpat Rai, for the respondents.
LSS11p CI/70-5
788
SUPREME COURT REPORTS
[1970] 2 S.C.R.
The Judgment of the Court was delivered by
Recldy, J.
This is an appeal by special ]eave against the
judgment of the Bombay High Court confirming the judgment of
the Assistant Sessions Judge, Kolhapur who reversed the judgment and decree of the civil judge of Junior Division at Gadhinglaj whereby the suit of the plaintiff-respondent was dismissed.
The respondent had filed a suit against the appellant Shivagonda
Subraigonda Patil and his son Nijappa Shivagounda Patil,
Virgonda Shivagounda Patil, Bhimapa Shivagounda Patil and
Rayappa Shivagonda Patil with the allegation that on 27-5-1921
the first defendant, Shivagounda who was the karta of the joint
family consistin~ of himself and his four sons, sold by a registered
sale deed for a sum of Rs. 2,400 the suit properties admeasuring
6 acres and 37 guntas out of RS. No. 62/2 and 62/3 to the
plaintiff's father Bhimgonda.
The properties sold to the plaintiff's father were previously mortgaged and it was averred that
the first defendant had undertaken to pay the mortgage debt and
hand over the suit property to the plaintiff's father. It appears
that part of the property out of R.S. 62/2 to the extent of four
acres, 36 guntas was mortgaged to Hanmgond Balgonda Patil for
Rs. 1,000 and_ two acres and one gunta out of S. No. 62/3 was
mortgaged to Virgonda and four other persons. It was the case
of the plaintiff that after the death of Hanmgond Ba1gonda the
first defendant repaid the debt to his wiciow Gangabai and
obtained possessior. of the hypotheca but instead of handing over
possession to the plaintiff's father as stipulated in the sale deed
he retained the possession
In respect of the other tw0 acres and
one gunt;i which was mortgaged· to Virgonda and others he
alleged that the first defendant redeemed the mortgage and handed
over the possession to the plaintiff's mother as the guardian of the
plaintiff who was then a minor and that after the ,plaintiff's mother
got into possession o( the property the Kolhapur government
attached the property and took possession of it in 1928 on the
ground that the mortgage in favour of Virgonda and others was
contrary to Wat Hukums. However, it appears tliat on or about
3-3-51 attachment was vacated but the possession of this land
was handed over by the collector to the first defendant instead of
the plaintiff from whose possession it was taken.
It was the
plaintiff's case that both in respect of the property that was
mortgaged to Hanmgond Balgonda and that which was mortgaged
to Virgonda and others it was the first defendant that retained possession of the said lands contrary to the stipulation and the sale
effected in favour of the plaintiff's father. It was also the plaintiff's case that Bhimgonda who was a hissadar bhauband of the
suit land which was a part of Patilki watan inam land on the date
of the sale deed dated 27-5-21 was entitled to claim possession of·
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SHIVAGONDA v. RUDRAGONDA (Reddy, J.)
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the property on the strength of his title deed, as such the reven,ue court erred in handing over possession of the portion of the
suit property to the first defendant on 3-3-51.
The first defendant respondent No. 1 contended in his written
statement that the suit bei!]g patilki watani service inam property,
.its transfer was ueclared by wat hukums of the Kolhapur State to
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be illegal and void because neither the plaintiff nor his father
was either the nawawala of the patilki watani service inam lands
or the male members of the senior branch of the senior family.
It was also contended that the mortgage in 1915 by the first
defendant in favour of Hanamgonda _was also contrary to wat
hukums and therefore void. Even apart from this defect the suit
property was never in the possession of the deceased Hanamgonda
in his capacity as the mortgagee, but that it has always beet1 in
his possession as the owner thereof.
Accordingly the suit was
barred by !imitation. On these pleadings several issues were
framed but for the purposes of this appeal having regard to the
· arguments addressed before us only two issues are relevant,
,o. · namely whether the sale under exhibit 37 in favour of the father
was void under the then prevailing law in Kolhapur State and
whether the suit was 'in time. It may be mentioned that the trial
court had dismissed the suit of the plai.ntiff but the district judge
in app.~al allowed it, set aside the decree and remanded the suit
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to the trial court for fresh disposal according to law with tlte
direction that the parties should be allowed to amend their pleadings.
After remand tlte trial court reframed the issues having
regard to the amendment of the pleadings but in so far as the
issues with which we are concerned it held against the plaintiff
and again dismissed the suit. The plaintiff appealed to the district
court which allowed the appeal holding tltat the impugned alienation was legal and did not offend any of the provisions of the wat
hukums tltat were in force and that the suit was within time. The
appeal to tlte High Court of Bombay was unsuccessful.
The
High C()urt held that under the Jaw in force alienation of service
in~. were aloni,: declared to be invalid but since the subject
matw. vnder appeal did not pertain to the service inam land, the
alienaji9I1 .was not void, nor was the suit barred by reason of the
defendant's adverse possession.
The question we are called upon to determine in this appeal
is whether according to the law in force as can be ascertained
from tlte relevant wat hukurns and tlte provisions of the Bombay
Hereditary Offices Act ill of 18 74, as ~ubsequently amended in
so far .. as it is applicable to the State of Kolhapur, the alienation
of the patel-ki-watan inam land, is void and whether the suit of
the. plaintiff-respondent is barred by limitation. ' Before we
embark upon' an enquiry in respect of these two questions, . it
'190
SUPREME C:JURT REPORTS
[1970] 2 s.c.R.
would be necessary to understand the natute and significance of
the wat hukum and the terms used therein, appertaining to watans
and inams.
In the princely State of Kolhapur, the word wat
hukum has been used not only for the firmans or decrees of the
ruler but also for the orders issued by several authorities. This
indiscriminate use of the words has caused a great deal of confusion, and no wonder the Supreme Court of that State had
occasion to observe that they constituted a "wilderness". This
tenn, it was noticed, was not confined to orders passed by the
ruler but also referred to those orders which were issued by the
Chief Justice, by Sarsubha (the commissioner of revenue division)
and also even by sub-divisional officers like the prant officer who
corresponded to the deputy collector. · But it was not every wat
hukum that had the force of law. Only those wat hukums which
were purported to have been expressly issued by the authority of
the ruler whether they emanated from the Prime Minister, the
Political Agent, sarsubha or the prant officer, had the force of
law. All the other wat hukums which were issued by the several
officers as executive orders, did not have any legal force.
We
shall refer to those relevant wat hukums which pertain to the
inams in order to determine whether those inam grants were
inalienable and subject to the rule of primogeniture. A watan or
inam which in its primary sense means a gift was a grant made
by a ruler who had the power or authority to make these inams.
These inams were of several kinds, namely, religious endowments, saranjams, service inams, etc., but we are here concerned
only with service inams. These service inams have an origin of
antiquity and go back to a fuedal era where the ruler administered
the government through village administration by compensating
various services reqmred to be performed by it generally by the
grant of lands.
The servants or officers of the village who
rendered these services were known as balute and the number of
them generally were twelve known collectively as bara balute of
which in Maratha villages and others where it was adopted the
village headman was one of such balute kno"n as pate!. There
were others like kulkarni (accountant), deshpandya (district
accountant), washerman, barbar, etc., with which we are not here
concerned (vide Wilson's Glossary of Judicial and Revenue
terms). The land which was granted for the performance of
each of these services was hereditary and held subject to the
terms of the grant in the sanad which governed inheritance, inalienability, etc. The subject matter of the suit as already noticed
formed part of the patel-ki-watan land and was situated in the
Kolhapur State, where it is contended that according to the wat
hukums then in force a sale in favour of a bhauband of the vendor
but not a nawawala was valid.
The bhauband we are informed
by the learned advocate for the appellant, Shri Karkhanis, and it
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SH!VAGONDA V. RUDRAGONDA (Reddy, J.)
791
is not denied by the respondents' learned advocate, literally means
kinsman 0r relative, has been translated as watandar of the same
watan in the Supreme Court, and kinsman by the translator in
the High Court.
A reference to Wilson's Glossary shows that
the word Bhau means a brother, a cousin. There is no doubt that
it refers to relatives of the vendor.
The word nawawala means
the registered holder of the watan. An excerpt from page 12 of
V. S. Desai's book-The Kolhapur Inam Law-has been cited
before us namely that whenever the holder of an inam died, it
became necessary to undertake a succession inquiry "in order to
ascertain the person "upon whom the inam should de_scend and
the person so designated "was called the nawawala. He was the
holder of the inam and had the right to render service, if service
had to be rendered."
It was therefore urged by the plaintiff that
as both the vendor and the vendee belonged to the watandar's
family the transaction was valid under the wat hukums of the
Kolhapur Darbar, as such we will have to examine these wat
hukums.
The first of the documents upon which reliance is piaced is
wat hukum No. 76 of 1282 fasli issued on 13-4-1873. This prohibits by cancelling all prior orders pertaining to service inams,
the partition and mortgage of watan lands, Para 7 of this wat
hukum states that the owner of the lands above-mentioned not
being private property has no right to alienate by way of mortgage,
sale, gift, etc., and such transfer will not be recognized by civil
or revenu.e courts in the Kolhapur State. Only ihe right of the
person taking such land will be recognized. If deeds alienating
by way of mortgage, etc., as mentioned above are not executed
from the owner and registered in the government offices, such
registration should not be construed as approval of the government
to such transfers.
On 13-9-1876, the Political Agent issued circular No. 28 of 1286 fasli with re'erence to the wat hukum No. 12
of 1283 fasli issued on July 12,1871. It said even thoμgh the wat
hukum issued in the year 1871 had declared that a person in
whose name the watan was continued should not give or take
by way of mortgage, gift, etc., that provision is not compfod with
and it was, accordingly, made known by that circular that those
who had mortgaged, etc., their lands should redeem within three
months failing which the lands will be forfeited.
It added that
even if the lands were mortgaged her~after they would be forfeited.
Again on 4-8-1887, sarsubha issued wat hukum No. 19
of 1297 fas/i, after referring to the orders issued from time to
time that the watan lands of pate! kulkarni, mahdra, etc., should
not be mortgaged or sold, it procecc'ed to make an exception in
these words : "It should not be understood that this order puts
any restrictions on village officers, pate! kulkami, etc., mortga-
792
SUPREME CuURT REPORTS
[!970]2 S.C.R.
ging, etc., their lands with bhaubands". While all the previous
wat hukums appear to have prohibited alienations whether by way
of sale or mortgage absolutely on pain of their being forfeited if
the provisions were not complied with, this wat hukum seems to
mJke an exception in favour of mortgages between bhaubands.
Thereafter in 1896, wat No. 9 of 1306 issued by Sir Nayadhish
(Chief Justice) cancelled all wat hukums pertaining to service
wat hukums issued prior to 1876.
A subsequent wat lmkum
Ne. 39 of 1305 issued on 26-2-1896 states that as some doubts
had been raised because of the use of vernacular words in wat
hukum No. 19 of 4-8-1887 pertaining to watans of the watandars
-performing service, it was decided to prohibit the watandars or
his pot bhaubands from alienating watan in any form.
It was
directed that an endorsement to this effect should be made on
wat No. 19 dated 4-8-1897 and that the same be brought into
force. This sarsubha wat was a huzur re~olution having the force
of law. There are several other wat hukums namely sarsubha wat
hukum 35 of 1335 faslt dated March 12, 1904, sarsubha wat
hu!:um 28 of 13 I 8 fasli, but it is not necessary to deal with them
a~ they do not refer to this aspect of the matter.
By sarsubha
wat hukum No. 44 of 1322 fas/i, dated 23-5-1913, it was made
known that "every inam of whatever type was impartible and was
to be continued with eldest son only. If any partition takes place
hereafter, government will not approve of it.
Every partition
effected prior to this order will not be affected as this order will
not have retrospective effect."
It is, therefore, seen that by this
date not only the alienation of service inams was prohibited but
it was made impartible, succession to which was to be governed
by the law of primogeniture. Then we get sarsubha wat No. 4 of
J 323 fasli issued on 11-6-1913 approved by huzur resolution
No. 5 of 1913. This wat is translated thus :
"Prohibiting, mortgaging or alienating in any other
form the impartible inams.
Be it known that there is a ban on mortgaging or
disposing of in any manner like other service watans
the inams which have been declared impartible by the
foregoing wat hukum and that all the wat hukums prohibiting such alienation issued so far are applicable to
the inams declared impartible by the wat No. 44. This
will come into force from the date of the Gazette."
The trial court points out that there were certain decisions of the
Kclhapur High Court which lay down that alienation of whatever
type of inam was prohibited except a sale to the nawawala but
they were based on the presumption . that these two wat hukums
44 of 1322 and 4 of 1323 are in existence. It was further stated
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SHIVAGONDA v. R.UDRAGONDA (Reddy, /.)
793
that these wat hukums were omitted by wat hukum 40 of 1917,
as can be seen from the list of the non-existing wat hukums given
at p. 10 of appendix to vol. II of the collection of wat hukums.
Though it is stated that the wat hukum 40 of 1917 was not available but from the first column it appears that it was not in force
in respect of two categories of inams mentioned in it which categories do not include the service inams.
There is another sirsubha wat 4 of 13"33 fasli issued on 28-3-24 for granting permission only to-Nawawala wajirdars watandars to purchase lands
from pot bhaubands. These two wats Nos. 4 of 1323 and 4 of
1333, it is said, vary the absolute prohibition against alienation
by permitting patd-ki-watan service inam to be mortgaged like
other service inams, though alienation would be void if it is made
in favour of any one other than bhauband and without permission
even to bhaubands.
It was sought to be contended before the
High Court and -also before us that though initially under the
Bombay Hereditary Offices Act III of 1874, which was made
applicable to the State of Kolhapur by notification of 1297 fasli
published in the Karvir State Gazette (Kolhapur) on 3-3-1888,
sec. 5 wllich prohibited the alienation if not made with the sanction of the government, was substituted by a subsequent amendment by Bombay Act V of 1886. This amended section, however,
only prohil,ited alienations in any form in favour of any person
who was not a bhauband beyond the natural life-time of the watan
holder. This amended provision also was applied to the Kolhapur State in the same way as the main Act was applied.
It is,
however, urged that the Bombay watan Act and the amendment
were only applied in -spirit that is according to the obvious meaning or import unlike other acts which were applied to the Kolhapur State in their entirety without any limitation. But the High
Court of Bombay did not find it necessary to go into the question
as to whether the Bombay Act or its amendment applied in letter
or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay State. We
have already set out the various wat hukums and are of the view ,
that the alienations by way of sale at a~y rate were prohibited
in so far as application of the Bombay Act and its amendment is
concerned, we are one with Gajendragadkar, J. as he then was
when delivering the judgment of the full bench consisting of himself, Chagla, C.J. and Shah J. as he then was, in Ramappa
Vanappa A kale v. Laxman Malyappa A kale('), observed:
"The decision of this question has been made somewhat difficult by reason of the fact that in the State of
Kolhapur the Watan Act has been made applicable In
spirit' and there are a large number of vat-hukums
(l) 62 B.L.R. 839,841.
•
794
SUPREME COURT REPORTS
[1970] 2 S.C.R.
issued in respect of questions relating to inami lands
from time to time . · . . . In dealing with the questions
iiertaining to the watans the courts in Kolhapur have
therefore to consider this mass of vat-hukums and apply
them to the facts before them. In doing so they have
also to bear in mind the fact that the spirit of the Watan
Act had also been made applicable to the State.
Mr. Justice Madgavkar who presided over the Supreme
Court at Kolhapur for several years strongly criticised
the application of the Watan Act in spirit only on the
ground that he was unable to understand what such an
application of the spirit of the Act really meant. 'Either
an Act in any or all of its sections, applies, or it does
not', observed Madgavkar J.
'To apply it in the spirit
but not in the fotter is beyond the power of the
courts' . . . . . With respect we agree with this criticism made by Mr. Justice Madgavkar."
• What rhe full bench was dealing with the question whether under
tne wat. hukums of the Kolhapur State, the sanadi inam land
which was impartible reverts tq the State on the death of the
holder, and· after an examination of all the wat hukums it
expressed the view that whatever the restrictions may be upon
that land which does not make the property the absolute _property
of the watandar, that property does not revert to the State but
descends to the next heir by the rule of primogeniture. We are
• not concerned with that aspect of the matter but only with the
question whether the alienation in favour of the plaintiff's father
was valid, and we think on the construction of the various wat
hukums that it was not. We agree with the full bench that the
Bombay Hereditary Offices Act (Watan Act) did not apply to
the Kolhapur State so as to override the specific directions of the
wat hukums which had legal and binding force in that State. It
may be observed that notification of 3-3-1888 whereby certain
laws in force in what was then British India were applied in toto
with modifications but the Watan Act is applied only "to go
according to the obvious meaning or impor:". What was perhaps
intended was that where there were no specific hukums the general
principles of the Watan Act may be applicable. At any rate in
this case as there is a specific prohibition from alienating patel-kiwatan and other similar inams we need not rely on the provisions
of the Bombay Act.
On the other question namely whether the suit is barred by
limitation, we are of the view that it is not. The facts as narrated
will show that in one case possession was given to the plaintiff's
widow after the mortgage was redeemed. But the collector under
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SHIVAGONDA v. RUDRAGONDA (Reddy, J,)
795
a misapprehension effected a forfeiture and took possession but
subsequently perhaps realising ~he mistake, released the property
but handed over possession to the wrong person namely the defendant. .It is only after that that a right would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on
the ground of his title.
There is no validity in the submission
made on behalf of the defendant that the plaintiff was out of
possession from 1928 till the date of suit-April 17, 1953.
Article 142 has no application because the suit is not against the
defendant on the ground that he has been dispossessed by him but
against a person who is not entitled to possession. The defendant
ditl not dispossess the plaintiff, and as such art. 142 is no: applicable at all. In any case, it is not necessary to go" into this question in any great detail, because in the view we have taken upholding the defendant's plea that the said alienation is void the
, plaintiff's suit must fail.
The appeal is accc.rdingly allowed, the judgment and decree
of the High Court, set aside and that of the trial court, restored
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with costs here and below.
Y.P.
Appeal allowed.