Balai Shidli Jogati vs Subba Santu Mahar on 21 August, 1926

Bombay High Court

Balai Shidli Jogati vs Subba Santu Mahar on 21 August, 1926
Equivalent citations: (1927) 29 BOMLR 246, 101 Ind Cas 135
Author: Patkar
Bench: A Marten, Kt., Patkar
JUDGMENT Patkar, J.

1. In this case the plaintiff sues to recover possession of the watan lands pertaining to a Mharki
watan. Shantu was the original Watandar and was succeeded by the daughter Shidli some time
before 1886. Shidli died on October 21, 1918, leaving a daughter Balai, the present plaintiff, and a
son Bala. The defendants claim under the son Bala. The question arising in the case is whether the
plaintiff, the daughter of Shidli, is entitled to succeed to the watan property or whether she is
postponed in the order of succession to the son Bala by virtue of Section 2 of Act V of 1886. Shidli,
the mother of the plaintiff, inherited the watan property before Act V of 1886 came into force. It is
common ground that Shidli got the property by inheritance and according to ordinary Hindu law the
plaintiff would succeed as heir to Shidli to her mother's stridhan. It is contended on behalf of the
defendants that the plaintiff being a female is postponed in order of succession to Bala, the son of
Shidli, by virtue of Section 9 of Act V of 1886. The learned Subordinate Judge held that the last
owner Shidli was a female and not a male and therefore Section 2 of Act V" of 1886 did not apply
and decided in favour of the plaintiff. The learned District Judge on appeal held that though Shidli
became the owner of the watan, the property did not cease to be watan property and Section 2 of Act
V of 1886 would apply to it. It is contended by Mr. Nilkant, the learned pleader on behalf of the
plaintiff, that Section 2 of Act V of 1886 would not apply as plaintiff is not a female member of a.
watan family. It is urged that the word "family" is defined by Section 4 of Bombay Act III of 1874
and that "watan family" in Section 2 of Act V of 1886 refers to the family of the original watandar
and neither Shidli nor the plaintiff belonged to the family of the original watandar. It is conceded,
and I think rightly, that the property in suit did not cease to be watan property after Shidli became
the owner of the watan. It is also conceded that Shidli was a watandar. "Watandar" is defined as
including a person holding watan property by inheritance from a person having an hereditary
interest in a watan. It follows, therefore, that Shidli's family is a watan family and that the plaintiff
being a female member of a watan family shall be postponed in the order of succession to the son
Bala who is qualified to inherit such watan. The definition of "family" in Section 4 is an inclusive
definition and not exclusive, that is to say, it does not exclude the application of the ordinary
meaning of the word 'family.' In Bai Laxmi v. Maganlal (1917) I.L.R. 41 Bom. 677, s.c. 19 Bom. L.R.
730 Scott C.J. accepted the dictionary meaning of the word 'family' as appropriate, viz., "those
descended (really or putatively) from a common progenitor." We think that Shidli's family was a
watan family and plaintiff being a female member of such a family is postponed to Bala, the male
member of the family qualified to inherit. In the case of Bai Laxmi v. Maganlal, the females were not
postponed to the males on the ground that the males belonged to the family of Mansukhram and
were not members of the family of the original watandar Gopinath or of the family of the new
watandar Dinanath, Beaman J. accepting the interpretation put by the learned Chief Justice on the
word 'family', said (p. 686) :

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 Balai Shidli Jogati vs Subba Santu Mahar on 21 August, 1926

...it necessarily follows that there is no one in the plaintiffs' branch at all who can claim to be
descended either from the original watandar, that is, Gopinath, or those who followed him by grant
or acquisition of their own, that is to say, Dinanath Girdharlal and his descendants or Venilal
Manecklal and his descendants.

2. In this case the male Bala belongs to the watan family of Shidli to which the female plaintiff"
belongs. It follows, therefore, that plaintiff must be postponed in the order of succession to Bala.
This view coincides with the opinion expressed by Farran C.J. in the case of Rahimkhan v. Fatu, Bibi
(1895) I.L.R. 21 Bom. 118 though it was not necessary for the decision of that case. We think,
therefore, that the view of the lower Court is correct and that the appeal must be dismissed with
costs.

Amberson Marten, Kt., C.J.

3. I concur. The appellant's argument was based on the contention that Shidli had left the watan
family, although it was conceded she was still a Watandar and the property still watan property. If
Shidli had married and thus gone into her husband's family, I could have better appreciated the
argument. But in fact she never married and her two children Balai and Bala were illegitimate.
Clearly she did not leave the family at birth, and though the appellant's pleader contended that she
must be taken to have left it at some later date having regard to her irregular connection, he was
unable to say when that was or on what occasion. Nor was he able to cite any authority in support of
his proposition.

4. Further, it had to be conceded that under Hindu law the illegitimate children could succeed as
heirs to their mother. Consequently, the chain of succession would not be broken as in England. The
illegitimate children would thus be legal descendants of Shantu and legal members of the watan
family. Consequently, in my opinion, Bala as a male ought to be preferred to Balai as a female
having regard to Section 2 of the amending Act.

5. I, accordingly, agree that the appeal should be dismissed with costs.

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