NAGESH BISTO DESAI ETC. ETC. versus KHANDO TIRMAL DESAI ETC. ETC.

Citation: [1982] 3 S.C.R. 341 · Decided: 02-03-1982 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Dismissed
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Judgment (excerpt)

If 
341 
A 
NAGESH BISTO DESAI ETC. ETC. 
v. 
KHANDO TIRMAL . DESAI ETC. ETC. 
March 2, 1982 
[0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL !SLAM, JJ.) 
Bombay P0rgana and Kulkarni Watans Abolition Act 1950-Section 4(1} and 
Bombay Merged Territories Miscellaneous Alienations Abolition Act 1955-Sec-
tion 7-Scope Of-Wotan properties if impartible-Members of joint family-If 
entitled to a share in the wata11 projUfties. 
· 
The plaintiff's father was the last holder of the office of Desai. After bis 
Cleath the plaintiff, whb W!J.S his eldest son, was recognised as the watandar. In 
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1904 service appurtenant to the office of Desai was commuted.by the imposition 
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of 'judi' or quit-rent. Under s. 4 (l) of the Bom~ay Pargana and Kulkarni 
Watans (Abolition) Act, 1950 ands. 7 of the Bombay Merged Territories Miscel-
Janeous Alienations Abolition Act, 1955 all the watan lands were re-granted to 
the plaintiff and he was deemed to be the occupant thereof Within the meaning of 
the Bombay Land Revenue Code. 
The plaintiff (appellant) filed a suit against respondents wlio were members 
of a joint Hindu family holding properties described as Kundgol Deshg8t Estate 
claiming a declaration that the estate formed.an impartible estate governed by 
the rule of lineal primogeniture. The plaintiff claimed that as the present holder 
of the office of Desai he was entitled to remain in full and exclusive J)ossession 
and enjoyment of the suit properties and that other members of the family bad 
no right, title or interest therein but were only entitled to maintenance and resi-
dence and in the alternative for partition and separation of 1/6 share therein. 
Denying all the plaintiff's claims the respondents pleaded that the entire 
properties belonged to the joint Hindu family and were therefore liable to be 
partitioned. 
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Rejecting all the claims of the appellant the Trial Court held that the pro-
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perties belonged to the joint Hindu Family and were therefore partible. 
On appeal the High Court, subject to a modification, upheld the decree of 
the court of first instance. 
The question at issue in the appeal to this· Court was whether, (I) oven 
assuming that the estate was impartible and governed by the rule of lineal primo-
geniture by custom as pleaded, the ig~i~!lts of im~arti~i~itr M well M t~~ ~.I~ ~( 
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342 
SUPREME COURT REPORTS 
[1982) 3 s.c.R. · 
lineal primogeniture being nothing more than an incident of the watan, stood 
abrogated bys. 3(4) of the 19SO Act ands. 4 of the 19S5 Act and as such it was 
not open tO the plaintiff to make any claim on the basis of the alleged custom, 
(2) with the resumption of the watan and the re-grant of the watan lands to him, 
the suit properties lost their character as being joint family property and had 
become, under the provisions of the 1950 and 1955 Acts, the plaintiff's exclusive 
property by reason of his status as watandar and as such wefc not capable of 
being partitioned. 
Dismissing the appeal, 
HELD : It is well settled that property though impartible may bo the ances-
~
tral property of the Joint Hindu Family. The impartibility of the estate doe5 
not per se destfoy its nature as joint family _property or render it the separate 
property of the last holder, so as to destroy the right of survivorship; hence, the 
estate retains its character of joint fami1y property and its devolution is governed 
by the rule of survivorship. To establish that a family governed by the Mitak-
shara in which ther~ is an ancestral impartible estate has ceased to be joint, it is 
necessary to prove an intention, express or implie.d, on the part of the junior 
members of the family to renounce their succession to the estate. [3S4 C-D] 
Marland Rao v. Malhar Rao; [!928] SS IA 4S: AIR 1928 PC 10: 107 IC 7: 
Adrishappa v. Gurushidappa, (1880) 7 IA 162: !LR (1880) 4 Bom. 494: 7 Cal. LR 1 
(PC); Vinayak Waman Joshi Rayarlkar v. Gopal Hari Joshi Rayarikar, [1903] 30 
IA 77: !LR (1903) 27 Born. 3S3: 7 Cal. WN 409; Shiba Prasad Singh v. Rani 
Prayag Kumarl Debi, (1932) S9 IA 331: AIR 1932 PC 216: 138 IC 861; Collector 
of Gorakhpur v. Ram Sundar Mal, (1934) 61 IA 286: AIR 1934 PC 157: CIT v. 
Dewan Bahadur Dewan Krishna Kishore, (1941) 68 IA lSS: AIR 1941 PC 120; 
Anant Bhikappa Patil v. Shankar Ramchandra Patil, (1943) 70 IA 232: AIR 1943 
PC 196 and Chlnnathayl v. Kulasekara Pandiya Naicker, [19S2] SCR 241; AIR 
19S2 SC 29, relied on. 
Mirza Raja Shri Pushavathi Viziaram Ga
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