Tikait Hargobind Prasad Singh vs Srimatya Phaldani Kumari on 29 November, 1951
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 87 of 1950
Decision Date: 29 November, 1951
Coram: Saiyid Fazal Ali, Mehr Chand Mahajan, Vivian Bose
In this appeal the petitioner, Tikait Hargobind Prasad Singh, sued the respondent, Srimatya Phaldani Kumari, and the case was decided on 29 November 1951 by the Supreme Court of India. The bench that heard the matter consisted of Justice Saiyid Fazal Ali, Justice Mehr Chand Mahajan, and Justice Vivian Bose.
The judgment was reported in the 1952 volume of the All India Reporter at page 38 and also appears in the 1952 Supreme Court Reporter at page 153. The dispute concerned the law applicable to ghatwali tenures in the district of Birbhum, specifically the succession of a widow in preference to the nearest male agnate when the deceased ghatwal left no direct lineal descendants and the family was held to be a joint family. The relevant statutory framework was Regulation XXIX of 1814 governing ghatwali tenures.
The full court held that among the Birbhum ghatwals, when a ghatwal died leaving a widow but no direct lineal descendants, the widow succeeded to the ghatwali estate ahead of the nearest male agnate, even though the broader family might be a joint family. The court observed that the Mitakshara rule, which treats property inherited from immediate paternal ancestors as ancestral and vests a right in the sons, grandsons and great-grandsons at the moment of their birth, did not apply to the Birbhum ghatwali tenures. The term “descendants” in Regulation XXIX of 1814 was interpreted loosely to mean “heirs” and was not limited to lineal descendants.
Justice Fazal Ali, speaking for himself, emphasized that custom and usage were important factors governing succession to ghatwali property. He noted that in some situations custom may develop in line with Hindu law of succession because of repeated tacit and unquestioned application, while in other situations succession to ghatwali property may be governed not entirely by Hindu law but by a law modified in certain respects by local usage and custom. He distinguished the present case from the earlier decision in Fulbati Kumari v. Maheswari Prasad (A.I.R. 1923 Pat. 453).
The appeal arose in Civil Appeal No. 87 of 1950. It was an appeal from a judgment and decree dated 8 February 1949 rendered by the High Court of Judicature at Patna, composed of Justices Manohar Lall and Mahabir Prasad, in Appeal No. 38 of 1946. That judgment itself arose from a decree dated 18 December 1945 of the Subordinate Judge of Deoghar in Title Suit No. 1 of 1939. Counsel for the appellant was assisted by a junior, while counsel for the respondent was also assisted by a junior.
The judgment was delivered on 29 November 1951. Justice Mehr Chand Mahajan delivered the main judgment, while Justice Fazal Ali delivered a separate judgment.
Justice Mahajan framed the question before the Court as the right of succession to six Birbhum ghatwalis that were governed by Regulation XXIX of 1814, annexed to the Gaddi Pathrol and situated within Tappasarath in the Santhal Parganas. The genealogy of the parties involved was presented in a pedigree table that traced the lineage from Digbijoy Singh through Gurohari Singh, Kanhai Singh, Bhairo Singh, Balram Singh (who held the ghatwali), Pratar Singh, Banwari Singh, Pitambar Katku Singh, Bharat Singh (who died without issue while holding the ghatwali), Kharagdhari Singh (who held the ghatwali), Ram Chandra Singh (who held the ghatwali), Brijbehari Singh, Sarju Prasad Singh (the original plaintiff), Krishna Singh, Tikait Kali Prasad Singh, and finally Phaldani Kumari, who was the defendant.
In this case the plaintiff was Prasad Singh Hargobind Prasad Singh, who had been substituted as the plaintiff, and the defendant was Phaldani Kumari. The last gaddidar of Pathrol, Tikait Kali Prasad Singh, died in 1935 and he was a member of the Baisi-Chaurasi clan. On 29 November 1935 the Commissioner of Bhagalpur Division formally recognized Smt. Phaldani Kumari as the succeeding ghatwal and authorized her to take possession of the ghatwali estate on 30 November 1936. Subsequently, Sarju Prasad Singh instituted a suit in forma pauperis before the Subordinate Judge of Deoghar seeking possession of the ghatwalis, and the present appeal arose from the decree in that suit. In paragraphs 7, 8 and 10 of the plaint it was asserted that the ghatwalis which were the subject of the suit formed joint family property and were therefore impartible by custom; that succession to such property was governed by the law of lineal primogeniture; and that females and persons claiming through females were completely excluded from inheritance. The plaint further claimed that the late Tikait Kali Prasad Singh and the plaintiff belonged to a joint Mitakshara family and that, as the eldest member of the eldest surviving line descending from the common ancestor, the plaintiff alone was entitled to succeed to the ghatwalis. In her written statement the defendant rejected this claim and argued that the Birbhum ghatwalis governed by Regulation XXIX of 1814 could not be characterized as joint family property; rather, the person who succeeded to and held the tenure as ghatwal was the sole proprietor and owner of the estates. She pleaded that, because the properties were the exclusive and separate possessions of the ghatwal then in possession, the defendant, as his widow, was entitled to succeed to them under the Mitakshara school of Hindu law, which governed the parties’ family. The pleadings gave rise to five specific issues: (1) whether succession to the ghatwalis was governed by the customs alleged in paragraph 7 of the plaint; (2) whether the ghatwalis formed joint family property of Kali Prasad Singh, his direct ancestors, Sarju Prasad Singh and the plaintiff; (3) whether Kali Prasad Singh died in a state of jointness with Sarju Prasad Singh; (4) whether the ghatwals were the sole proprietors of the ghatwalis at the relevant time as alleged by the defendant; and (5) whether the plaintiff or the defendant was entitled to succeed to the properties in dispute. The trial judge decided that issues 2, 3 and 4 were decided in favour of the plaintiff and against the defendant. He held that Kali Prasad Singh had died in a state of jointness with Sarju Prasad Singh, that the ghatwalis were indeed joint family property, and that the plaintiff, being the eldest surviving copartner in the eldest line of Digbijoy Singh’s descendants, was entitled to succeed to the estates ahead of the widow. It was undisputed that, had the properties been held as separate possessions of Kali Prasad Singh, the widow would have been entitled to succeed to them.
Both parties agreed that if the land in question were held to be the separate property of Kali Prasad Singh, then his widow would have the right to succeed to those lands. Based on that and other findings, the trial judge granted a decree in favour of the plaintiff and ordered the costs against the defendant. The widow subsequently appealed the decree to the High Court. The High Court set aside the lower-court decree, dismissed the plaintiff’s suit and awarded costs to the appellant. In arriving at that conclusion, the High Court held that the nature of the ghatwali tenures involved was such that they could not be treated as joint property belonging to both the plaintiff and the last ghatwal; consequently, the defendant, i.e., the widow, was entitled to succeed to the estates.
The counsel appearing for the appellant advanced the argument that the ghatwali estates under dispute possessed the same character as joint-family impartible estates governed by the Mitakshara law, and therefore the rule of survivorship applicable to such estates should also apply to them. He contended that the High Court erred in holding that the suit properties belonged exclusively to Kali Prasad Singh and in suggesting that there was any special feature in these tenures that set them apart from other ghatwalis in the Santhai Pargangs or from other impartible estates recognised by Hindu law, a special feature that would keep them out of the definition of coparcenary property.
The issue that females, by custom, were excluded from inheriting ghatwali tenures in Birbhum was not pressed before either the trial judge or the High Court and therefore was not raised before the present Court. Likewise, the custom described in paragraph 7 of the plaint and identified as issue 1 was not seriously pleaded. The learned Attorney-General, while conceding that succession to the tenures was governed by the Mitakshara law, maintained that they could not in any sense be regarded as joint-family property and that the distinctive characteristics of the tenures barred any right of birth that members of a joint Hindu family might otherwise acquire. As an alternative, he submitted that the widow would be entitled to succeed to the lands, assuming they were joint-family property under the relevant custom.
The judgments of the lower courts were elaborate and referred to a large number of decided cases. In the view of this Court, the essential question that requires determination is whether the ghatwali lands that are the subject of the suit should be classified as joint-family property or as the separate property of the deceased ghatwal. To resolve that question it is necessary first to consider the nature and principal incidents of a ghatwali tenure. The origin of such tenures is now well established. During Mughal times the sovereign or, in some instances, the zamindar acting under customary authority, granted parcels of land to selected individuals who were appointed as guardians of mountain passes. These guardians, known by the title “ghatwal”, were tasked with protecting the countryside against hill invaders and maintaining security and order within the estate. The grants were made either directly by the ruling authority or by the zamindar, and they were given in consideration of the performance of those protective duties.
In this part of the judgment the Court explained that the original grants, which were made to secure the performance of certain duties, had, by the mere passage of time, assumed the character of a genuine estate in land that was both heritable and perpetual, yet remained conditioned upon the performance of specified services or upon services that might be demanded in the future. The Court observed that a review of several decided cases relating to the ghatwali tenures in Birbhum would sufficiently illustrate the nature and character of these estates. In the case of Harlal Singh v. Joravan Singh, the Court held that a ghatwali estate in Birbhum was not divisible among the heirs of a deceased ghatwal; rather, the entire estate was required to devolve upon the eldest son or the next appointed ghatwal, as reported in 6 Select. Rep.204. The Court further explained that ghatwali lands were grants for particular purposes, especially police functions, and that dividing such lands among several heirs would defeat the very purpose for which the grants had been made. In Satrukchunder Dey v. Bhagat Bharutchunder Singh, a decision dated 1853, the Court stated that the ghatwali tenures in Birbhum were not the private property of the ghatwals; instead, they were lands assigned by the State as remuneration for specific police services and were therefore neither alienable nor attachable for personal debts. In the case of Mst. Kustooree Koomaree v. Monohur Deo, Justice Loch J. observed that succession to ghatwalis was not governed by any rule of kulachar or family custom, nor by Mitakshara law, but solely by the nature of the ghatwali tenure itself, which descended undivided to the person who succeeded to and held the tenure as ghatwal, and that a female was not incapable of holding a ghatwali tenure. The Court quoted the judgment, stating that “the party who succeeds to and holds the tenure as ghatwal must be, and has always been, looked upon as sole proprietor thereof, and, therefore, the other members of the family cannot claim to be coparceners and entitled to share in the profits of the property, though they may, by the permission and goodwill of the incumbent, derive their support, either from some portion of the property which he may have assigned to them, or directly from himself.” In Binode Ram Sein v. Deputy Commissioner of Santhai Pargangs, reported in 6 W.R. 129, the Court held on review that the rents of a ghatwali tenure were not liable for the debts of the former deceased holder of the tenure, because the tenure was held for the purpose of public services and those who performed the services were entitled to the whole of the remuneration. Finally, in Tekait Durga Pershad Singh v. Teketnee Durga Kuari, reported in 9 S.D.R. 900, it was urged that a female’s right to inherit was inconsistent with a ghatwali estate; this contention was rejected, and the Court referred to the fact that many ghatwali estates were already held by females, observing that it was difficult to hold that a ghatwali estate must necessarily be held only by male heirs, and noting that where it was proved that the family was joint, succession to the estate would be governed accordingly.
In this case the Court observed that the ghatwali estates situated in Birbhum could be governed by the same Hindu-law rule that applies to the descent of impartible estates. The Court referred to the decision in Ram Narain Singh v. Ramoon Paurey, where it was held that the ghatwal who was in possession at that time was entitled only to the interest on the compensation money obtained for the compulsory acquisition of a portion of the ghatwali interest, and that he could not expend the principal amount, which had to pass intact to the next heir. The Court noted that, with respect to Birbhum ghatwalis, the only authorities that attracted its attention were the cases just mentioned. It further found it necessary to refer to Regulation XXIX of 1814, particularly Sections I and II, which are material to the enquiry. Section I of the Regulation declared that the lands held by persons designated as Ghautwauls in the district of Birbhum formed a peculiar tenure to which the existing Regulations were not expressly applicable; nevertheless, historical usage and the constitutional framework of the country indicated that this class of persons were entitled to hold their lands from generation to generation in perpetuity, subject to the payment of a fixed and established rent to the zamindar of Birbhum and to the performance of certain duties for the maintenance of public peace and support of the police. The Regulation further observed that the rents payable by those tenants had recently been adjusted after a full and minute inquiry made by the proper officers of the revenue department, and that it was essential to give stability to the arrangements now established among the Ghautwauls; consequently, the following rules were adopted to be in force from the period of their promulgation in the district of Birbhum. Section II declared that, having recently been settled on the part of the Government with the Ghautwauls in the district of Birbhum, they and their descendants in perpetuity would be maintained in possession of the lands so long as they respectively paid the revenue presently assessed upon them. From the effect of the decided cases and the provisions of the Regulation, the Court concluded that the grantee of the tenure and his descendants must be maintained in possession of the land from generation to generation, conditioned upon the rendering of the services annexed to the office. The tenure, however, was liable to forfeiture for misconduct or misbehaviour of the ghatwal then in office. Succession was determined by the rule of lineal primogeniture. The estate was neither partible nor alienable, except in exceptional cases with the consent of the Government or the zamindar, as the circumstance might require. These two characteristics were inherent in the very nature of the tenure and had not been annexed to it by any rule of custom. Finally, the Court pointed out that the estate in the hands of the last holder was not liable to attachment or sale.
The Court held that the ghatwali estate could not be seized for execution of a decree against its holder, nor could it be used by the holder’s successor to satisfy the predecessor’s personal debts. When succession occurs, the lawful heir is required to execute a muchilika in favour of the grantor, which guarantees that the heir will perform the duties attached to the office. That instrument also stipulates that if the holder commits misconduct, behaves improperly, or fails to fulfil the obligations inherent to the office—obligations that constitute a form of remuneration—then the Government retains the right to resume the estate. In view of these special features of a ghatwali tenancy in Birbhum, which differ markedly from ordinary inheritances, the Court found it difficult to apply the Mitakshara law in its entirety. Under Mitakshara law, the essence of a coparcenary is the unity of ownership. As noted in Katama Natchir v. The Raja of Sivaganga(1), a coparcenary requires a community of interest and a unity of possession among all family members, so that upon the death of one member the survivors may continue to enjoy, by survivorship, the common interest and possession they held during the deceased’s lifetime. The circumstances surrounding a Birbhum ghatwali tenancy preclude any notion of a community of interest or a unity of possession among family members and the incumbent holder. The holder is entitled to exclusive possession of the ghatwali lands, and the estate devolves to him as the sole heir. This reasoning is supported by the observations of Lord Fitzgerald in Kali Pershad v. Anand Roy(2). Although his remarks concerned a zamindari ghatwali, they are equally applicable to a government ghatwali. Lord Fitzgerald stated: “Where, however, the Mitakshara governs, each son immediately on his birth takes a share equal to his father in the ancestral immoveable estate.” He continued that, considering the origin, nature, purpose, and incidents of ghatwali tenures as established by decided cases, such tenures are distinct and cannot be governed by the general principles of Hindu inheritance or by the Mitakshara rule. It is accepted that a ghatwali estate is impartable—that is, it cannot be partitioned—and that the eldest son succeeds to the whole, to the exclusion of his brothers. These propositions exclude the application of the Mitakshara rule that each son, on birth, acquires an equal share with the father and is entitled to partition. A similar view was expressed in Chhalraclhari Singh v. Saraswati Kumari(3) by a Bench of the Calcutta High Court.
The High Court recorded that a passage from a previous decision could be quoted with advantage. The Court noted that the learned counsel for the appellant had argued before the Court that, although the ghatwali tenure in question was impartible, the Privy Council decision in Chintaman Singh v. Nowlukho Koonwari established that such tenure was not necessarily separate property. The Privy Council had observed that “whether the general status of a Hindu family be joint or undivided, property which is joint will follow one and property which is separate will follow another course of succession.” The Court accepted that this authority supported the proposition that there could exist impartible joint-family property, for example a raj or an estate similar to a raj. However, the Court explained that the classification of such property as joint or separate generally depended on the character of the property at its inception, including the nature of the original grant and the circumstances that created it. The Court therefore considered the earlier view it had expressed on the status of the family in the present case and the fact that the ghatwali tenure had been held as the exclusive property of Ananta Narain. On that basis, the Court found it unnecessary to decide what the original character of the tenure had been. Yet the Court added that, if it were required to answer that question, it would be inclined to refer to the special character of these tenures as described in Regulation XXIX of 1814 and state that they were intended to be the exclusive property of the ghatwal who held them at the time, and not to be treated as joint-family property in the proper sense.
The Court then turned to the observations made in Raja Durga Prashad Singh v. Tribeni Singh. In that case it was held that it was certainly advantageous to the whole family when one member occupied the office and held the tenure, because that member could place other family members in minor offices and grant them subordinate interests commonly called jotes, and could generally provide for the family in the manner expected of its head. However, the Court emphasized that this advantage did not make the holder a trustee for the family, nor did it convert the ghatwali estate into property possessed by the family or reduce the ghatwal to the position of a karta or managing head of the family. The Privy Council found that the incidents of ghatwali tenure did not give the family any rights over the property while it remained in the hands of the ghatwal, and it fully agreed with the Indian courts on this point. Finally, the Court referred to the decision in Narayan Singh v. Niranjan Chakravarti, where Lord Sumner gave an exhaustive review of the decided cases concerning ghatwali tenures. Lord Sumner observed that where the tenure was hereditary, a recognized right to be appointed ghatwal substituted for a formal appointment, and a recognized right existed in the superior to dismiss the ghatwal if …
The Court noted that where a ghatwal is no longer able and willing to perform the service that his tenure demands, and where he is also unable to appoint another person to the office and to the tenure of the lands, the existing incidents of the tenure continue to exist perpetually. In such a situation the Court held that the Mitakshara rule – which provides that when a person inherits property from any one of his three immediate paternal ancestors, his sons, grandsons and great-grandsons acquire a vested interest in that property at the moment of their birth – cannot be applied to these grants because they are essentially payments for the performance of specified services by the holder of the office. The Court explained that a ghatwali must be viewed as something inherently linked to an office, and, as Lord Sumner observed in the earlier case, the office cannot, except by a special custom, grant, or other arrangement, either run with the land or be derived from it. In other words, just as primogeniture and impartibility act as auxiliary principles, the ghatwal’s office and the ghatwali tenure are inseparable and cannot be divided into separate compartments. If the office cannot be treated as coparcenary property, then the tenure must follow the same principle.
The Court further observed that it is difficult to imagine an interest, as noted in (1) (1924) 51 I.A. 37, being acquired at the birth of a member of a joint family when the tenure is attached to an office, even if that tenure has descended through three immediate paternal ancestors. The Court pointed out that in some circumstances the choice of the next heir depends on the decision of the ruling authority, and that in cases of misconduct or misbehaviour by the current holder, the ruling power may not only dismiss the ghatwal but may also resume the tenure. This feature, the Court said, places such heritable property in a distinct class separate from other inheritances governed by Mitakshara law. The view that, in Birbhum, ghatwali tenures are the separate or exclusive property of the ghatwal is supported by the fact that, on many occasions when succession to these tenures has arisen, the succession has been determined according to the Mitakshara rule applicable to separate property, irrespective of whether the deceased died in joint or separate status with other family members. The Court cited thirteen instances of this practice among members of the Bais-Chaurasi clan, each showing that the widow succeeded in preference to a male heir. The learned trial judge had held that in some of those instances the female succeeded because the nearest agnate in line was separate from her husband; regarding the other instances, although he found the evidence of separation to be weak, he concluded that they did not establish a custom that superseded the rule of survivorship in joint-family property. The High Court took a different view and correctly remarked that
In the matter before the Court, numerous instances were established in which women succeeded to the estates held by members of the Baisi-Chaurasi gaddidars. However, the record showed that not a single case existed where a woman was excluded from being appointed as a ghatwal on the basis that an agnate was entitled to become a coparcener of the last holder by virtue of survivorship. On this factual foundation, the Court found that there was persuasive force in the argument that, even if the tenures under consideration were classified as ancestral joint-family property, the succession to those tenures was to be governed by the Mitakshara rule that applied to separate property. Consequently, for the reasons already set out, the Court held that the Mitakshara principle which makes property inherited from a person’s immediate paternal ancestors become ancestral in his hands—thereby granting his sons, grandsons and great-grandsons a right to the property at the moment of their birth—had no appropriate application to the Birbhum ghatwali tenures. The counsel for the appellant, in support of his contention, relied upon several decisions of the Privy Council relating to impartible estates governed by Mitakshara law. Those decisions affirmed that succession to an impartible estate that forms the ancestral property of a joint Hindu family is governed by the rule of survivorship, subject to the custom of impartibility, and that the eldest member of the senior branch of the family succeeds in preference to the more remote direct lineal senior descendants of the common ancestor. Specific reference was made to the observations of Justice Turner in the Sivaganga case, as well as to the pronouncements in Baijnath Prasad Singh v. Tej Bali Singh and in Shiba Prasad Singh v. Rani Prayag Kumari Debi. In those authorities it was stated that members of an ordinary joint family property possess (i) the right of partition, (ii) the right to restrain alienations by the head, (iii) the right of maintenance, and (iv) the right of survivorship. The Court noted that the first of these rights cannot exist in an impartible estate, even though it may be ancestral, because of the very nature of such an estate. The second and third rights are also incompatible with the custom of impartibility. Accordingly, the general Mitakshara law had been superseded by custom, and the impartible estate, though ancestral, was to be regarded as possessing the incidents of self-acquired or separate property. Nevertheless, the right of survivorship was not inconsistent with the custom of impartibility; that right therefore continued to exist. As a result, the estate retained, to that extent, its character as joint-family property, and its devolution was governed by the general Mitakshara law applicable to such property. While the other rights that a coparcener acquires by birth in joint-family property no longer applied, the birthright of the senior member to succeed by survivorship remained. In the Court’s view, these observations...
The Court observed that the principles previously discussed did not apply to the tenures that were the subject of the suit. It reiterated that, as earlier indicated, it could not be accepted that a member of a joint family governed by Mitakshara law acquired any right by birth in such tenures. The general rule of Mitakshara creating a birthright appeared, in the present case, to have been displaced not only by the special characteristics inherent in the nature of these tenures but also by the incursion of custom upon that rule. Moreover, the Court noted that the observations relied upon by the learned party were made in cases where the impartible estates were unmistakably joint-family property or where the grants were fashioned to benefit the family as a whole. The ratio of those decisions was that, although certain incidents attached to joint-family property could be eliminated by custom, other incidents that were not affected by custom could continue to exist. The Court held that such reasoning could not be applied to property that at no time could be said to have been clothed with, or to have ever possessed, any of the incidents characteristic of coparcenary property. The appellant’s counsel placed considerable reliance on the observations of Sir Dawson Miller C.J. in Fulbati Kumari v. Maheshwari Prasad (1). In that case the learned Chief Justice dissented from the view that all ghatwali property was the exclusive separate property of the holder for the time being and that it devolved according to the rules governing separate property, subject again to the circumstance of impartibility. He observed that the fact that a raj is impartible does not, in a case governed by Mitakshara law, render it separate or self-acquired property; it may be self-acquired (1) A.I.R. 1923 Pat. 453 property or it may be the property of a joint undivided family, and in the latter situation succession would be regulated by the rule of survivorship. The Court expressed the view that those observations had no application to the matter of the Birbhum ghatwalis because, in explicit terms, they had been excluded from consideration in that matter. The judgment had stated: “In our opinion, the estate in the present case is in no way comparable to the Birbhum ghatwali tenures and Regulation XXIX of 1814 does not apply to it.” The decision therefore proceeded on the assumption that Birbhum ghatwalis were distinct from other ghatwalis that stood on the same footing as impartible estates governed by Mitakshara law. The Attorney-General challenged the correctness of those decisions and argued that the Privy Council decisions on the subject were not uniform. He drew the Court’s attention to the observations made in Sartaj Kuari’s case (1), in the Second Pittapur case (2), and in the Tipperah case (3). While noting a possible apparent conflict between the view expressed in those decisions and the view expressed in Baijnath Prasad Singh v. Tej Bali Singh (4) and in Shiba Prasad Singh v. Rani Prayag Kurnari Debi (5), the Court considered that the latter cases had settled the law applicable to joint-family impartible estates governed by Mitakshara law, rendering any revival of the controversy unnecessary.
The Court observed that the law applicable to joint-family impartible estates governed by Mitakshara principles had already been settled by a series of Privy Council decisions, and that it was untimely to revive a controversy that had been conclusively resolved. The argument that, upon the death of the last holder, a ghatwali tenure in Birbhum reverted to the grantor and was consequently resumed by the Government and re-granted to the next heir was found unsatisfactory. The Court noted that Regulation XXIX of 1814 expressly provides that such tenures are heritable from generation to generation, and that a theory of resumption and re-grant is inconsistent with their hereditary nature. Inheritance, the Court held, cannot remain in abeyance; at the death of the last holder the estate vests immediately in the succeeding heir. Although the Government may, in certain circumstances, have the power to dismiss a ghatwal or to forfeit the tenure, this does not imply that the estate terminates and is re-granted at each death. The Court also rejected the appellant’s counsel’s contention that a widow, not being a descendant of the original grantee under Regulation XXIX of 1814, was barred from inheriting Birbhum ghatwali tenures. The regulation, the Court explained, does not set out a rule of succession for these tenures; the devolution is governed by personal law or custom. The word “descendants” used in the regulation was understood to mean “heirs” and cannot be interpreted to exclude females such as a widow or mother who are legal heirs under Mitakshara law or custom. Historical practice, the Court noted, has consistently allowed females to succeed to these tenures. The appellant’s counsel conceded that if the property were the separate property of Kali Prasad Singh, the defendant would be entitled to inherit it. The Court agreed that “descendants” had been loosely employed in the regulation for “heirs,” aligning with observations of the Calcutta High Court in Chhatradhari Singh v. Saraswyati Kumari(1). Moreover, even if the appellant’s argument were accepted, the trial court could not have decreed in favor of the plaintiff for items 4, 5 and 6 of the schedule because those items had been acquired by Krishna Prasad Singh, father of Kali Prasad Singh, by a decree against his collateral Katku Singh, who also claimed the properties as an heir of the last male owner Banwari Singh (see Exhibit 4). Those properties, having descended to Krishna Prasad Singh by obstructed heritage, were his separate property and did not fall within the definition of ancestral property under Mitakshara law.
In this case the Court explained that under the Mitakshara school the definition of ancestral property did not give Sarju Prasad Singh, who was the uncle of Krishna Prasad Singh, any right or interest in the properties by virtue of birth, and therefore he could not claim them by survivorship. The Court observed that Kali Prasad Singh, who obtained the same properties on the death of his father, held them as separate property because he had no son who could acquire an interest in them by birth. Regarding these properties, the Court held that the widow of the deceased was unquestionably an heir after her husband’s death, and consequently the plaintiff could claim nothing to the items listed in the schedule. The Court noted that this point had been overlooked by both lower courts, and as a result the appeal was dismissed with costs. Judge Fazl Ali J, while generally agreeing with Judge Mahajan J, set out the principal reason for dismissing the appeal. He referred to several authoritative decisions dealing with the special nature of ghatwali property, one principle being that if the ghatwal is a member of a joint family, the family has no right over the property while it remains in his possession (see Durga Prashad Singh v. Tribeni Singh (1)). The Court explained that this characteristic suggests that ghatwali property is more akin to the exclusive property of the ghatwal than to joint family property. Nevertheless, the Court observed that in some decisions succession to such property had been determined according to Hindu law rules on joint property when the ghatwal was found to be a member of the joint family. The Judge stated that he was not prepared to say those decisions were wrong, but emphasized that custom and usage are also important factors governing succession to ghatwali property. He added that it is conceivable that in certain cases custom may evolve along the lines of Hindu law due to repeated tacit application of that law, while in other cases succession may be governed not entirely by Hindu law but by law modified in part by usage and custom. The specific question before the Court was whether the widow of a deceased ghatwal, who was a member of a joint family and left no issue or direct male descendants, could succeed to the ghatwali property in preference to the nearest male agnate. Referring to the plaint, the Court noted that the plaintiff contended that the clan to which the parties belonged was governed by the Mitakshara school of Hindu law “subject to their clan custom”, one such custom being that females – namely widows, daughters or mothers – and persons claiming through females could not and did not succeed on the death of the ghatwal.
The plaintiff maintained that, according to the customs of his clan, females—including widows, daughters, or mothers—were permanently excluded from succeeding to the ghatwali estate. In the written statement the defendant contradicted this claim, asserting that the family was governed solely by the Mitakshara system of Hindu law and that no clan custom affected the estate in dispute. Based on these pleadings the trial court framed the issue as whether succession to the ghatwali was governed by any custom, as alleged in paragraph 7 of the plaint. During the trial the plaintiff attempted to demonstrate that females were always excluded, but he was unable to establish this point. The lower courts, however, narrowed the question that directly impacted the present case to a more limited one: could a female succeed when the family was a joint family? Both courts agreed that, if the property in question was the separate property of the ghatwal, females could not be excluded from succession. The remaining question concerned the legal position when the property was regarded as joint family property.
Evidence presented at trial indicated that, in thirteen instances concerning the Baisi-Chaurasi clan to which the Birbhum ghatwals admittedly belonged, the widow of the last ghatwal succeeded in preference to the nearest male agnate. The trial judge observed that in four of those instances the nearest agnate who claimed the property was separate from the ghatwal or his widow, whereas in the remaining instances there was either no proof of separation or the evidence was described as weak, implying that it could not be relied upon with confidence. These facts, the judge noted, lent some support to the view that Hindu law had been modified by custom for the Birbhum ghatwalis, so that where the last ghatwal died leaving a widow but no issue, the widow would succeed ahead of the nearest male agnate even though the family might be joint.
The Birbhum ghatwals formed a distinct class and were subject to Regulation XXIX of 1814. That regulation provided, among other provisions, that this class of ghatwals was entitled to hold the ghatwali property from generation to generation and that they and their descendants in perpetuity were to be maintained in possession of such property. Strictly speaking, neither a widow nor a distant agnate qualified as a descendant of the last ghatwal and therefore fell outside the literal terms of the regulation. Consequently, custom and usage could not be excluded in determining succession in such cases. The appellant relied most heavily on the decision in Fulbati Kumari v Maheshwari Prasad (A.I.R. 1923 Pat 453), where the court held that on the death of a ghatwal who was a member of a joint family, the ghatwali property would devolve according to the rules of Hindu law applicable to joint property, namely the rule of survivorship.
The judgment observed that the earlier decision had applied the rule of survivorship, but Chief Justice Dawson Miller carefully noted that the ghatwali estate involved in the present litigation was not comparable to the Birbhum ghatwali tenures. Consequently, the rule established in that earlier case might not be applicable to the Birbhum ghatwals. In this matter, the Commissioner, who acted on behalf of the Government and possessed special knowledge of the customs governing the Birbhum ghatwals, appointed the respondent as the ghatwal. The Commissioner explained that this appointment was made “following a well-established precedent in the case of these ghatwals by recognizing the widow in the absence of a direct heir,” and cited the authority (1) A.I.R. 1923 Pat. 453. The Court expressed the view that all the evidence presented supported the Commissioner’s interpretation, and it found no substantial evidence capable of contradicting that view. In light of these considerations, the Court concluded that the appeal should be dismissed and ordered that the costs of the proceedings be awarded against the appellant. Accordingly, the appeal was dismissed. The agents representing the parties were recorded as follows: the appellant was represented by an agent identified as P.K. Chatterjee, and the respondent was represented by an agent identified as S.P. Varma. The decision was rendered in the case of Adamji Umar Dalal v. State of Bombay on 26 November 1951.