LexYELLAPPAGOUDA SHANKARGOUDA PATIL versus BASANGOUDA SHIDDANGOUDA PATIL
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3 S.C.R. SUPREME COURT REPORTS
YELLAPPAGOUDA SHANKARGOUDA PATIL
v.
BASANGOUDA SHIDDANGOUDA PATIL
(P. B. GAJENDRAGADKAR and K. N. W ANCHOO, JJ.)
Hereditary Office-Decree for partition of Watan land upheld
by Privy Council in appeal-Abolition of Privy Council's jurisdic-
tion-Issue of certificate by Collector-Application for cancella-
tion of decree, if can be entertained by the Supreme Court-Bombay
Hereditary Offices Act, r874 (Bom. III of r874), s. IO-Abolition of
Privy Council jurisdiction Act, r949 (V of I949), ss. 5, 8-Consti-
tion of India, Arts. 374(2), r35.
T.he respondent brought a suit for partition against the peti-
tioner in respect of certain Watan lands. The trial court decreed
- the suit but the High Court of Bombay reversed that decree in
appeal. The Privy Council restored the decree of the trial court
and an Order-in-Council was drawn ('hp accordingly. Execution
of the said decree was resisted by the petitioner on the ground
that the lands in suit being admittedly remuneration attached to
the office of the Patil and as such governed by the Bombay Here-
ditary Offices Act, r874 (Born. III of r874) were not liable to
partition. A certificate under s. IO of the Act was issued by the
Collector at the instance of the petitioner and the executing
Court cancelled the execution case. The respondent appealed to
the High Court and that court following its own Full Bench deci-
sion in Rachapa v. Amingouda, (I88r) V Born. 283, held the certi-
ficate to .be invalid since it was not addressed to the Privy Coun-
cil which had passed the. decree and set aside the order of the
executing court. Thereafter a fresh certificate under s. IO of the
Act was issued by the Collector and addressed to this Court and
the petitioner applied to this Court under that section for the
cancellation of the said decree granted by the Order-in-Council,
the Privy Council having ceased to have any jurisdiction in the
meantime. The question for decision was whether as a result of •
the constitutional changes this court could be said to have passed
the decree and could entertain the petition.
Held, that the petition must be allowed.
· The combined effect of ss. 5 and 8 of the Abolition of the
Privy Council Jurisdiction Act, r949, and Arts. 374(2) and I35
of the Constitution was that this petition which lay to the Privy
Council before it ceased to exercise its jurisdiction, could be pre-
sented to the Federal Court before the commencement of the
Constitution and thereafter to this Court.
The certificate issued by the Collector and addressed to this
t:ourt was, therefore, valid and must be given effect to.
CIVIL
APPELLATE
JURISDICTION : Civil Misc.
Petition No. 530 of 1959.
•
Match 9.
222
SUPREME COURT REPORTS
[1960]
r960
Petition for cancellation of the decree dated
Yella;;,~ouda N ove~ber 25, 1_9~9, gr:'1nted to t~e Respondent by the
Shankargouda PalilOrder-m-Counml m Privy Counml Appeal No. XI of
v.
1948 .
. Basangouda .
G. K. Daphtary, Solicitor-General for India and
Shiddangoudu Patil B. R. L. Iyengar, for the petitioner.
K. R. Bengeri and A. G. Ratnaparkhi, for the
respondent.
1960. March 9.
delivered by
The Judgment of the Court was
Gajendragadkar ].
GAJENDRAGADKAR, J.-This petition has been made
under s. 10 of the Bombay Hereditary Offices Act,
1874 (hereinafter called the Act), for cancellation of
the decree granted to the respondent by the Order-in-
Council dated November 25, 1949, in so far as the
said decree purports tp operate on or include any
right to the office of the Patilki and 11 Watan lands
attached thereto. These lands are situated at Kirtgeri
in the Taluk of Gadag. They form part of a Watan
and, according to the revenue records, they have been
assigned as remuneration to the. officiator for the time
being under s. 23 of the Act. The petitioner has
obtained a certificate prescribed under s. 10, and he
contends that as a result of the said certificate this
Court should cancel the decree as claimed by him in
the petition.
It appears that the respondent had filed a suit
against the petitioner in the Court of the First Class
Sub Judge at Dharwar (Civq Suit No. 18 of 1934) and
in the said suit he had claimed partition and posses-
sion of the properties as an adopted son of Shiddan-
gouda. These properties were and are in the possess-
ion of the petitioner. The trial court passed a decree
in favour of the respondent. The petitioner then
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