K. Ramaswamy, J.— This batch of appeals raise common question of law, though the High Court of Bombay had decided several appeals by separate judgments. On this account they have been tagged together and were referred to a three-Judge Bench. We propose to dispose them of by common judgment. The facts in Civil Appeal No. 32 of 1980 are sufficient to decide the question of law. One Bapu Anna Patil (for short B.A Patil), father of Anna Saheb the first appellant/first plaintiff and Balwant alias Balasaheb, the first defendant, deceased first respondent in Special Civil Suit No. 79 of 1967 on the file of Civil Judge (Senior Division) Kolhapur, died on 31-10-1956. Balwant was the eldest male member in the joint family consisting of himself and Anna Saheb. Their sister is Laxmibai, fourth defendant. It is now an admitted fact that all other properties, except two items of the agricultural lands bearing RS Nos. 359 and 172/8 situated in Village Rukadi of a total extent of 15 acres and 20 gunthas, attached to the Patel watan, were partitioned by metes and bounds. The watan properties attached to the office of Patel, by rule of primogeniture, became impartible. The Maharashtra Revenue Patels (Abolition of Office) Act, 1962 (for short “the Act”) came into force on 1-1-1963. The Patel watans, by operation of Section 3, stood abolished. Thereafter, Balwant, being eldest member of the family, obtained a re-grant under Section 5 of the Act. The appellants filed the suit for partition and allotment of half share therein. The trial court decreed the suit and a preliminary decree was made for division of 15 acres and 20 gunthas in equal moieties. In First Appeal No. 162 of 1969 by judgment and decree dated 28-6-1977, the Division Bench of the High Court following its earlier decision in Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil (1976) 78 Bom LR 720 allowed the appeal and set aside the decree. The High Court held that after re-grant under the Act, the properties became personal property of Balwant and that therefore, they were not partible.
2. Section 2(e) defines “Patel watan” to mean the office of Patel of a village held hereditarily under the existing watan law, together with the tenure of watan property, if any, and the rights, privileges and liabilities attached thereto. “Existing watan law” defined under Section 2(d) to mean, in relation to any area, includes any enactment, ordinance, rule, bye-law, regulation, order, notification, Vat-Hukum or any instrument, or any custom on usage having the force of law, relating to Patel watans, and which is in force in that area immediately before the appointed day. Appointed day is defined under Section 2(1)(a) to mean the date of commencement of the Act. “Representative watandar” is defined under Section 2(1)(i) to mean a watandar registered or recognised under the existing watan law, as having a right to perform the duties of the hereditary office of Patel of a village. ‘Watandar’ defined in clause (k), means a person having under the existing watan law a hereditary interest in Patel watan of a village provided that, where any watan has been entered in a register of record under the existing watan law as held by the whole body of watandars, the whole of such body shall be deemed to be a watandar. “Watan land” has been defined under Section 2(1)(1) as the land forming part of watan property. “Watan property” has been defined under Section 2(1)(m) including the moveable and immovable property held, acquired or assigned under the existing watan law for providing remuneration for the performance of the duty appertaining to the hereditary office of Patel of a village, and includes cash payments made voluntarily by the State Government, and subject to periodical modification or withdrawal. Section 3 abolishes watans postulating that notwithstanding anything in any usage, custom, settlement, grant, agreement, or sanad, or in any decree or order of a court, or in the existing watan law, with effect from the appointed day—
(a) all Patel watans shall be and are hereby abolished;
(b) all incidents appertaining to the said watans (including the right to hold office and watan property and the liability to render service) shall be and are hereby extinguished;
(c) subject to the provisions of Sections 5, 6 and 9, all watan lands shall be and are hereby resumed, and accordingly shall be subject to the payment of land revenue under the provisions of the relevant Code and the rules made thereunder, as if they were unalienated land.
[The proviso is not relevant for the purpose of this case. Hence omitted.]
3. Under Section 4, the Collector is to decide any question enumerated in clauses (a) to (e) that arise between the parties, after giving to the affected party an opportunity of being heard and after holding an inquiry. His decision on the question, subject to a decision on appeal to the State Government, shall be final. Sub-section (1) of Section 5 envisages that watan land resumed under Section 3 shall, on an application (in cases not falling under Sections 6 and 9), be re-granted to the wantandar of the watan to which it appertained, on payment by or on behalf of the watandar to the State Government of the occupancy price equal to twelve times the amount of the full assessment of such land, within the prescribed period, and in the prescribed manner; and the watandar shall thereupon be an occupant within the meaning of the Revenue Code in respect of such land, and shall be primarily liable to pay land revenue to the State Government in accordance with the provisions of that Code. The proviso is not relevant for the purpose of this case. Hence omitted.
4. Under sub-section (3), the previous sanction of the Collector is mandatory for transfer or partition by metes and bounds of the occupancy of the land re-granted under sub-section (1) of Section 5. The other provisions are not material for the purpose of this case. Hence omitted. By operation of Section 3 read with Section 5 notwithstanding anything in any usage, custom, settlement, grant, agreement or sanad, or in any decree or order of a court, or in the existing watan law, with effect from 1-1-1963, not only Patel watans have been abolished but also all incidents appertaining to the said watans including the right to hold office and watan property and the liability of the watandar to render service shall be and thereby extinguished. Under sub-section (1) of Section 5, the lands resumed under Section 3 shall be re-granted to the watandar of the watan to which it appertained, on payment by or on behalf of the watan to the State Government of the occupancy price enumerated therein. Watandar thereupon shall be an occupant for the purpose of the Code and shall be primarily liable to pay land revenue to the State Government under the Code. Any alienation or partition of the occupancy of the land re-granted under Section 5(1) shall be only with the previous sanction of the Collector and subject to the terms contained in sub-section (3) of Section 5.
5. The question, therefore, is whether on re-grant made under sub-section (1) of Section 5, the attached watan lands assumed the character of the self-acquired property to Balwant, the watandar? It is contended by Shri Lalit, the learned Senior Counsel who led the arguments in the batch of appeals of the watandars that after the abolition of the Patel watan and re-grant made in 1965 in favour of Balwant, in consequence of the abolition of the watan and the burden of service attached to the office, the pre-existing rights and liabilities appertained to the land stood abolished; the re-grant and the terms contained therein determine the rights of the parties. Since it was a re-grant made personal to the watandar, the property became his self-acquired property. After the Hindu Succession Act, 1956 has come into force, it has become the self-acquired property in terms of the sanad and Balwant was responsible to the State Government for payment of the land revenue. Therefore, the property is the personal property of Balwant. Kolhapur District bears a distinctive feature of the watandari rights and, therefore, it is necessary to find the existence of the watan from the grant and not to subject it to operation of Section 3 of the Act. B.A Patil having died in 1956, the right to succession opened on his demise under the law of primogeniture. The junior member of the family, by custom, has no right to any share in the property. The property thereby vested in Balwant in the year 1956 and his heirs alone are entitled to succeed to the estate of Balwant. The appellants, therefore, have no right to claim any partition in the property. We find no force in the contention. The questions raised are no longer res integra. Primogeniture means first born and denotes the preferential rights of the seniormost in age to succeed to the estate, since seniormost in age is entitled to succeed to the estate in preference to his younger brother. In an impartible estate though the other rights which a coparcener acquires by birth in joint family property do not exist, right by birth of the senior member to take by survivorship still remains. In order to establish that a family governed by Mitakshara in which there is an impartible estate has ceased to be joint, it is necessary to prove an intention express or implied, on the part of the junior members of the family to renounce their right of succession to the estate. It is not sufficient to show a separation merely in food and residence. The custom or special law displaces the rule of succession by survivorship of the Hindu joint family.
6. In Dattatraya v. Krishna Rao 1993 Supp (1) SCC 32 a two-Judge Bench of this Court to which one of us (K. Ramaswamy, J.) was a member, was to consider the rule of primogeniture extensively and held at p. 39 that there are estates which by special law or custom descend to seniormost member of the family, generally the eldest, to the exclusion of the other members and which are impartible, though they are joint family property, in the eye of law, belonging equally to the other members; and their rights are hedged in by a number of restrictions or limitations. It was further held at p. 42 in para 18 that the impartible estate, though descends by rule of primogeniture and survivorship on the eldest male member of the family, it must also be proved that the junior members gave up expressly or by implication his right to a share therein. An impartible estate may be created by a grant or by custom. It is a creature of custom. In the case of ordinary joint family property, the members of the family have the right to partition and the right of survivorship. The right to partition cannot exist in the case of impartible estate. The pre-existing law attached the property, moveable or immovable, by grant etc. to the watan for rendering service by the watandar. As its concomitance recognised the rule of primogeniture and by its operation, the eldest male member in the family or the eldest in the first branch gets the right to watan and the property attached to the watan would be enjoyed as an incidence of or consequential to his rendering watan service. The statute also can abrogate the operation of the custom and succession to watan property by rule of primogeniture and the Act in fact did achieve that object, abolished the office of watan and liabilities appertaining to it including the burden of service and made the lands ryotwari lands. On re-grant the erstwhile watandar holds the lands for and on behalf of the Hindu joint family impressed with the character as joint family property.
7. This Court in Nagesh Bisto Desai v. Khando Tirmal Desai (1982) 2 SCC 79, (1982) 3 SCR 341 considered the effect of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955, the pre-existing rule of primogeniture, the consequences of the abolition under that Act and the resultant effect thereof. It was also contended therein that Kundgol Deshgat Estate was an impartible estate and its succession was governed by the rule of lineal primogeniture consequent to the abolition of the watan under Act 22 of 1955. The question for consideration therein was whether the impartibility of the tenure of a paragana watan appertaining to the office of a hereditary district (paragana) officer by reason of family custom or a local custom, whether watan lands lost the character of being joint family property with the resumption of the watan under Section 4 of that Act and re-grant thereof and whether the lands were exclusive to the watandar by reason of his status as watandar and whether they were not capable of partition.
8. A Bench of three Judges after exhaustive consideration had held 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. The 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 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 family property and devolves by the general law upon that person who being in fact and in law joint in respect of the estate. He is also the senior member in the senior line. Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the devolution is governed by the general Mitakshara law applicable to such property. 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 order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate. The estate though is impartible does not make it the separate and exclusive property of the holder. Where the property is ancestral and the holder has succeeded to it, it will be a part of the joint estate of the undivided family. The incidents of joint family property, which still attaches to the joint family property is the right of survivorship which, of course, is not inconsistent with the custom of impartibility. Junior members of the joint family, in the case of impartible joint family estate, take no right in the property by birth and, therefore, have no right of partition having regard to the very character of the estate that it is impartible. The expression watandar of the same watan includes the members of a joint Hindu family other than the watandar, who were entitled to remain in possession and enjoyment of the watan property. The holder of the watan land is entitled to re-grant of the land in occupancy rights as an unalienated land. The abolition of the watan extinguishes the office and modifies the right in which the land is held.
9. The abolition, extinction and modification arise by operation of Section 3 of 1955 Act and not from the exercise of the executive power of confiscation or resumption by the State Government. The commutation of service of watan lands by which the watandars were relieved in perpetuity from liability to perform the services attached to their offices in consideration of payment of the land revenue. The lineal primogeniture regulating succession to the estate cannot prevail under Section 4 of 1955 Act, as being nothing more than incidents of the watan which stand abrogated by Section 4 of that Act. It was, therefore held that watan families if had a hereditary interest in the watan property, such inheritance enures to the benefit of all the members of the family as the property belongs to the family and all persons belonging to the watan family who had a hereditary interest in such watan property were entitled to be called “watandars of the same watan” within the Watan Act. The members of the joint Hindu family must be regarded as holders of the watan land along with the watandar for the time being, and therefore the re-grant of the lands to the watandar under Section 4 of that Act must enure to the benefit of the entire joint Hindu family. This Court upheld the full Bench judgment of the Bombay High Court reported in Laxmibai Sadashiv Date v. Ganesh Shankar Date (1977) 79 Bom LR 234 and another judgment in Dhondi Vithoba Koli v. Mahadeo Dagdu Koli (1973) 75 Bom LR 290. The Division Bench judgment in Babgonda case (1976) 78 Bom LR 720 was overruled.
10. The same ratio proprio vigore would apply to the facts in this case as well. It is seen that by operation of Section 3 watans have been abolished and all the incidents attached to the watandari including the pre-existing custom, operation of law or any decree or order of the court were nullified by statutory operation. Thereby, the incidents attached to the watan i.e liability to render service as Patel became extinct and the lands became ryotwari lands, the office of watan stood extinguished, the lineal primogeniture stood abolished and the land on re-grant became the Hindu joint family property held by the watandar for and on behalf of the members of the joint Hindu family. All the members of the family became entitled to claim right to partition by survivorship. The Act had come into force on 1-1-1963 after the Hindu Succession Act, 1956, became operational. Therefore, after the death of the father in 1956, the right to succession as watandar opened to the senior lineal male descendant i.e Balwant as per the existing watan law. The re-grant was made in 1965 in which year the right to claim partition accrued to all the members of the family. Thereby, Annasaheb, plaintiff 1 became entitled to claim 1/2 share in 15 acres 20 gunthas along with his brother Balwant. In Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil 1989 Supp (1) SCC 246 a Bench of this Court reversed the judgment of the Division Bench of the High Court following the ratio in Nagesh B. Desai case (1982) 2 SCC 79, (1982) 3 SCR 341. This case relates to Patel watan property of Vat-Hukum by Kolhapur State. In Anant Kibe v. Purushottam Rao 1984 Supp SCC 175, AIR 1984 SC 1121 another Bench of three Judges considered the effect of the rule of primogeniture and impartibility of the estate as a special mode of devolution under the M.P Reserved (Inam Lands) and M.P Land Revenue Code and held that the inam lands together with the properties acquired from the income of the inam were ancestral joint family property, though impartible estate which devolved by survivorship by the rule of lineal primogeniture and after the inam lands were abolished, the property became the joint family property. Consequently it became partible. The plaintiffs were held to be entitled to partition and separate possession to the extent of their 1/2 share in those properties. We do not find any ground to refer the case to five Judges for decision. In Shivappa Tammannappa Karaban v. Parasappa Hanammappa Kuraban 1995 Supp (1) SCC 162, (1994) 4 Scale 750 a Bench of two Judges (K. Ramaswamy and N. Venkatachala, JJ.) following Nagesh B. Desai case (1982) 2 SCC 79, (1982) 3 SCR 341 and Kalgonda case 1989 Supp (1) SCC 246 upheld the right to partition by the junior members after the Karnataka Village Officers Abolition Act, 1961 came into force. In Shiddappa Satappa Murugude v. Ramappa S. Murugude by a judgment dated 25-11-1986, the two-Judge Bench held that it is not a joint family property but separate property of the watandar. Nagesh B. Desai case (1982) 2 SCC 79, (1982) 3 SCR 341 and Anant Kibe case 1984 Supp SCC 175, AIR 1984 SC 1121 decided by two Benches of three Judges were not brought to the notice of the Bench. Therefore, with due respect, the ratio therein cannot be regarded as good law. The ratio in Kallappa Sultana Patil v. Balagonda S. Patil (1969) 2 SCC 813, (1971) 1 SCJ 429 is equally inapplicable to the facts of this case. In that case the question was under the pre-existing law prior to the abolition and that therefore, a Bench of two Judges of this Court held that Vat-Hukum enures to the family of the watan lands as Natmastha.
11. Undoubtedly, by operation of Vat-Hukum, an enquiry into heirship was conducted and the eldest son of the deceased watandar was declared as his successor (Navawala), and he succeeded to the watan property attached to the office as successor by inheritance. That the operation of the pre-existing law, customary or codified would be subject to operation of the Hindu Succession Act, 1956 and the inconsistent law prevalent in (the then) Kolhapur State stood repealed. As held earlier, by rule of lineal primogeniture, the Hindu Succession Act stood excluded until the watan together with the burden of service was abolished. After re-grant was made, the property becomes coparcenary and is liable to partition among coparceners. The contention, therefore, that the provisions of Kolhapur Hindu Succession Act, 1920, becomes operational and the interpretation thereon made prior to the Act and the Hindu Succession Act came into force, bears no relevance.
12. The trial court, therefore, had rightly granted the preliminary decree and the Division Bench of the High Court had committed manifest error of law in following the judgment which was subsequently overruled by this Court. The appeal is accordingly allowed and the decree of the trial court stands restored and that of the appellate court stands reversed.
Civil Appeal No. 2267 of 1980
13. The ratio of our judgment in the above appeals would equally apply to the facts in this case. However, one more contention raised in this appeal is that the defendants have acquired title by prescription. It was pleaded that mutation was effected on 16-8-1955 and from that date the defendants, it was averred, were in exclusive possession and enjoyment and that after the abolition of the watan under Merged Territories Miscellaneous Alienations Abolition Act, 1955 after re-grant, it was their exclusive property and that, therefore, they prescribed title by adverse possession. That contention is negatived by the appellate court and the High Court.
14. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.
16. In the case of a Hindu joint family, there is a community of interest and unity of possession among all the members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenary property. The mere fact that one of the coparceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a member of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all. The burden lies heavily on the member setting up adverse possession to prove adverse character of his possession by establishing affirmatively that to the knowledge of other member he asserted his exclusive title and the other members were completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other. The right of the plaintiff to file suit for partition had arisen after the Act has come into force and re-grant was made by the Collector under sub-section (1) of Section 5. The defendant, therefore, must plead and prove that after the re-grant, he asserted his own exclusive right, title and interest to the plaint schedule property to the knowledge of the plaintiff and the latter acquiesced to such a hostile exercise of the right and allowed the defendant to remain in continuous possession and enjoyment of the property in assertion of that hostile title during the entire statutory period of 12 years without any let and hindrance and the plaintiff stood thereby.
17. It would be seen that until the character of the land is changed, by operation of the rule of lineal primogeniture, the lands became impartible. Therefore, the plaintiff therein could not claim any right for partition. After the Act has come into force and on making re-grant, cause of action had arisen to file suit for partition. There is no pleading and proof that the defendants asserted their hostile title to the property to the knowledge of the plaintiff and they acquiesced in the same. In its absence the right to claim partition would arise only when the right to partition is denied. The character of the land from impartibility to partibility had been changed under the Act. Thereby, both the courts have rightly held that they did not acquire title by adverse possession. This appeal also accordingly stands dismissed.
Civil Appeal No. 2485 of 1985
18. In this case apart from the main question which was already held against the appellants, two more contentions were raised in the High Court. They filed an application in the High Court under Order 6 Rule 17 for amendment of the written statement to include some other land for re-partition. On ground of laches, the application for amendment was disallowed. The same was reiterated in this appeal. In view of the findings recorded by the High Court, we do not think that it is a fit case warranting interference by this Court at this distance of time. It was also pleaded that the suit was barred by limitation. It is their case that the partition had taken place prior to the Act 22 of 1955 had come into force, they remained in possession as owners and that, therefore, the suit is barred by limitation. The appellate court disbelieved prior partition. That was also negatived by the High Court holding that the suit was filed after the character of the land from impartibility to partibility had been changed and that, therefore, it was not barred by limitation. We find that the conclusion reached by the High Court is well-justified. The High Court and the appellate court have appreciated the evidence and reached the conclusion, therefore this Court does not embark upon the appreciation of evidence. The appeal also since tagged with CA No. 32 of 1980, the controversy and the question of law stand concluded by the decision rendered hereinbefore. The appellate court remitted the matter for reconsideration whether the alienation made by the first appellant in favour of Appellants 2 to 8 and Respondent 3 were for legal necessity. That was upheld by the High Court. Therefore, subject to the above, the judgments of the High Court and the appellate court are upheld. The appeal accordingly stands dismissed.
Civil Appeals Nos. 3200-01 of 1991
19. The only question raised was with regard to the character of the land and the right to partition. Since the appeals were tagged with CA No. 32 of 1980, the controversy gets concluded with the question of law decided in CA No. 32 of 1980, therefore, the appeals also stand dismissed.
Civil Appeal No. 2557 of 1993
20. The High Court in Second Appeal No. 1277 of 1973, construing the terms of the sanad, held that it is a personal property for the benefit of the watandar in Act 22 of 1955. The property assumed the character of self-acquired property and that, therefore, the properties are not liable to partition and on its basis reversed the decree of the trial court and the appellate court. On the question of law, the appeal was tagged with CA No. 32 of 1980. In view of the decision therein for the same reasons, this appeal also stands allowed. The further contention that documents are required to be looked into to find the chequered history involved in the interpretation thereof is untenable since the question of de-tagging the appeal does not arise. The terms of Sanad Exts. 70 and 71 and the interpretation placed on them by the High Court in reversing the decree of the courts below primarily hinge upon the interpretation of the provisions of Act 22 of 1955 which was already settled by this Court. The High Court did not have the benefit of its Full Bench decision and of the decision of this Court which led to the wrong view taken by the High Court. The appeal is accordingly allowed. For the reasons stated in CA No. 32 of 1980 (supra), the appeal is allowed and the judgment and decree of the High Court dated 7-11-1981 made in Second Appeal No. 1177 of 1973 are set aside and that of the trial court and of the appellate court stand restored.
21. In view of the facts and circumstances, parties are directed to bear their respective costs throughout in all these appeals.