civil appellate jurisdiction civil appeals number. 615-
617/73618-20/73 and 1850 to 1852 of 1972.
from the judgment and decree dated the 22nd june 1962
of the mysore high companyrt at bangalore in regular appeal number
157/56 regular appeal  b  number 16/57 ra  b  6 of 1958.

r. lalit s.s. javali d.p. singh ravi parkash for
the appellants in ca. 1850-52/72 r-5 in ca. 615/73 r-2 in
ca. 616/73 r-6 in ca. 617/73 and r-3 in ca. number. 618-20/73. d. bal r.b. datar miss madhu moolchandani for the
appellant in c.a. number. 615-617/73 r-5 in ca. number. 1850-
52/72 for r-1 in ca. number. 618-620/73. t. desai k. n. bhat nanjappa ganesh for appellant
in ca. 618-620/73 rr 2 and 3 in ca. 1850 to 1851/72 rr. 2317 18 in ca. 1852/72 rr 23 in ca. 616/73 rr 10 11
in ca. 616/73 for rr 1 2 45 in ca. 617/73. b. bhasame k.a. naik m.r.k. pillai for r-1 in ca. number. 1850-52/72 ca 615-16/73 r-14 in ca. 617/73 and r-2 in
ca. 618-620/73. r. nagaraja alok bhatacharya for r-12 in ca. number. 1850-52/72 ca. 615/73 r-9 in ca. 617/73 r-13 in ca. 617/73 and r-10 in ca 618-620 of 1973.

r. ramasesh for rr 13 15  a  to  c  in ca. 1852/72
rr 15 17 in ca. 617/73 and rr 11 14  a   c  and  d  in
ca. 618/73. the judgment of the companyrt was delivered by
sen j. these nine companysolidated appeals on certificate
are directed from a companymon judgment and decree of the high
court of mysore at bangalore dated june 22 1962 which
affirmed subject to a modification the judgment and decree
of the civil judge senior division dharwar dated july 5
1956 substantially dismissing the plaintiffs claim for
declaration of title to and possession of certain watan
properties and decreeing instead his alternative claim for
partition and separate possession of his one-sixth share
therein. the principal question in companytroversy in these appeals
is whether ss. 3 and 4 of the bombay paragana and kulkarni
watans abolition act 1950  for short act number 60 of 1950
and ss. 4 and 7 of the bombay merged territories
miscellaneous alienations abolition act 1955  for short
act number 22 of 1955  which provided for abolition of
watans and alienations in the merged territories resumption
of watan land and its re-grant to the holder for the time
being which brought about a change in the tenure or the
character of holding as watan land affect the other legal
incidents of the property under personal law. the suit out of which these appeals arise was
instituted by the appellant nagesh bisto desai as
plaintiff claiming against his two brothers ganesh bisto
desai and gopal bisto desai defendants number.2 3 mother
smt. akkavva alias parvathibai defendant number 4 brother
bhimaji martand desai defendant number5 who had gone in
adoption to martand member of a junior branch and fathers
brother son khando tirmal desai defendant number 1 a
declaration that the properties described in schedules b and
c appended to the plaint called the kundgol deshgat estate
situate in the district of dharwar in the state of
karnataka formed an impartible estate and governed by the
rule of lineal primogeniture and that the plaintiff being
the present holder of the office of desai was entitled to
remain in full and exclusive possession and enjoyment of the
suit properties and that the other members of the family had
numberright title or interest therein but were only entitled
to maintenace and residence for exclusive possession of the
family residential house at kundgol knumbern as wada described
in schedule b part 2 from the defendants number. 2 to 5 for
exclusive possession of insignia of honumberr described in
schedule e and one-third share in the family movables
described
in schedule d. alternatively in the event of the companyrt
holding that the properties described in schedule b c and
d were properties belonging to the joint hindu family the
plaintiff claimed partition and separate possession of his
one-sixth share therein. it will be companyvenient in the first place to refer
briefly to the history of the estate to set out the
pedigree showing the descent from a companymon ancestor and to
show how the present case arose. the plaintiffs suit is brought on the allegation that
the deshgat family of kundgol paragana of which the
plaintiff and the defendants 1 to 4 are members is a very
ancient and respectable one in the state of jamkhandi which
later merged in the then province of bombay and is number in
the state of karnataka. the lands and cash allowances
described in schedule b para  i  and  iii  are the
emoluments of the district hereditary office of desai. abkari is the companypensation given to the desai family by the
british government when it took over the companytrol of today
and liquor in hanchinal inam village from the deshgat
family. this amount together with the cash allowance and
the service lands appurtenant to the office of desai and the
houses and open sites form the impartible estate called the
kundgol deshgat estate which was partly located within the
territory of former feudatory state of jhamkhandi and party
in the territories of the then british india. the first inam
was granted at the time of thimappa in 1575. all the
properties companystituting the deshgat were acquired under
grants made by the sultans and rulers of bijapur during the
period from 1575 a.d. to 1694 a.d. with a companyple of other
grants received from the chief of jamkhandi during the
period from 1120 a.d. to 1826 a.d. the watan has remained
with the family which held the hereditary office of desai
for over four centuries. in 1904 service appurtenant to the
office of desai was companymuted by the imposition of a judi
or quit-rent. properties described in schedules f and g have
been in possession of the two junior branches descended from
gundopant and lingappa from 1825 a.d. and 1854 a.d.
respectively and are being enjoyed by them even number. the plaintiffs father bistappa the last holder of
the office of desai died on july 27 1931 leaving behind him
his widow smt. akkavva and four sons nagesh bhimrao
ganesh and gopal. out of them bhimarao had gone in adoption
to martand. member of a junior branch. upon his fathers
death the plaintiff nagesh bisto desai was recognised to be
the watandar. the plaintiffs companysin is khandappa
the subjoined genealogical table gives the relationship
of the parties belonging to the senior branch descended from
thimappa. genealogical table
thimppa

-------------------------------

khanderao pantoji gundopant

thimappa nilkant

--------------------

ramappa nagappa mallappa

bistappa ---------------
 adopted
imnagappa bistappa mortand
 went in adoption
bhimraw
 adopted deft.5
------------------------------

bistappa died 1931  trimallappa
smt. akkevva  deft 4
khandappa
 deft. 1
------------------------------------------------------

nagesh bhimrao ganesh smt. indirabai gopal
 pantiff   went adoption  deft. 2   deft. 9   deft.3
to martand  smt. kashibai
 deft. 10
it appears that after the death of the plaintiffs
father in 1931 in the mutation proceedings that followed
the plaintiff first made a claim that the watan being
impartible according to the custom of the family he became
the exclusive owner of the entire watan properties. although
his brothers ganesh bisto desai and gopal bisto desai
defendants 2 and 3 had at first companysented to mutation of the
watan in his name they later resiled from that position and
the strongest opposition came from the plaintiffs uncle
tirmal father of khando. in companysequence of this the
plaintiff accepted before the revenue authorities that the
properties belonged to the joint hindu family and refrained
from making any claim on the footing of the properties being
impartible. in 1945 the plaintiffs brother bhimarao
defendant number 5 who had gone in adoption to martand started
asserting a claim to 7 mars of land and right of residence
in the family wada and this had the support of the
plaintiffs mother smt. akkavva. the defendant number 5
bhimarao in assertion of his claim brought special suit number
51 of1949 in the civil companyrt at kundgol on the basis of the
properties being impartible. in june 1946 the plaintiff
leased out some home farm lands to defendants 6 7 and 8
and this gave rise to proceedings under s. 144 of the companye
of criminal procedure 1898. the sub-divisional magistrate
kundgol passed an order restraining defendants 2 3 and 5
from disturbing the possession of defendants 6 7 and 8 and
this order was kept in force by the former state of
jamkhandi till merger in the former state of bombay in
august 1948. the state government revoked the order with
effect from december 15 1948 as a result of which the
defendents 6 7 and 8 brought suits for injunction. due to
discord in the family the plaintiff left the ancestral
residential house at kundgol and started residing in his
bungalow. the plaintiff has admittedly been regranted all
the watan land under sub-s.  1  of s. 4 of act number 60 of
1950 and s. 7 of act number 22 of 1955 as if it were an
unalienated land being the holder of the watan to which it
appertained and he is deemed to be an occupant thereof
within the meaning of the bombay land revenue companye 1879.
the defendants filed separate written statements and
repudiated the plaintiffs claim of impartibility. they
denied that the suit
properties formed an impartible estate and that succession
to the estate was governed by the rule of lineal
primogeniture. the defendant number 1 asserted that there had
been at least three partitions in the family. according to
him the allotment of the properties described in schedules
f and g to the two branches of gundopant and lingappa
represented allotment of shares on partition. he pleaded
that all the properties described in schedules b c d and e
were joint family properties and claimed one-half share
therein. the defendants number. 2 and 3 in their written
statement also asserted that the properties described in
schedules f and g to the two branches of gundopant and
lingappa were shares allotted to them on partition. the
defendant number 4 supported the case pleaded by her sons
defendants number. 2 and 3. the defendant number 5 however
pleaded that there had never been a partition in the family
and that the entire properties that is to say the
properties described in the plaint schedules b to g
continued to be joint family properties wherein he claimed
one-fourth share. the remaining defendants also denied that
the suit properties were impartible. the learned trial judge rejected the plaintiffs claim
that he was entitled to remain in full and exclusive
possession and enjoyment of the aforementioned properties
being the watandar of the kundgol deshgat estate and that
other members had numberright title or interest therein except
as to maintenance as junior members and held instead that
properties belonged to the joint hindu family and were
therefore partible. he further held that the properties
described in schedules f and g in possession of the junior
branches of gundopant and lingappa were number allotted to them
as their share on partition and therefore had to be put into
the hotchpotch. he accordingly passed a preliminary decree
for partition declaring the plaintiffs share to be one-
twentyfourth of the entire estate and to other minumber
reliefs. on appeal the high companyrt upheld the judgment of
the trial judge holding that the suit properties were number
impartible and were therefore liable to partition but it
set aside
the direction with regard to schedules f and g properties on
the finding that the two branches of gundopant and lingappa
had separated from the joint family. it accordingly modified
the decree of the learned trial judge and held that the
plaintiff was entitled to one-sixth share in the properties
described in schedules b to e.
arguments in these appeals have been companyfined to the
question as to whether as a matter of law even if it were
assumed that the plaintiff had succeeded in proving that the
kundgol deshgat estate was an impartible estate and that
succession to it was governed by the rule of lineal
primogeniture the incident of impartibility of the watan as
well as the rule of lineal primogeniture stand extinguished
by act number 60 of 1950 and act number 22 of 1955 and it is no
longer open to the plaintiff to make any claim on the basis
of the alleged custom of impartibility or the rule of lineal
primogeniture. the questions that fall for determination in these
appeals are firstly whether the impartibility of the
tenure of a paragana watan appertaining to the office of a
hereditary district  paragana  officer in respect of which a
commutation settlement has been effected regulating
succession to the property by reason of family custom or a
local custom being the incidents of such watan stands
abolished by virtue of s. 3 of act number 60 of 1950 or s. 4 of
act number 22 of 1955 and secondly whether the watan lands
lost the character of being joint family property with the
resumption of the watan under s. 3 of act number 60 of 1950 or
s.4 of act number 22 of 1955 and re-grants thereof were
exclusive to the plaintiff under s. 4 of act number22 of 1955
by reason of his status as the watandar and therefore they
belonged to the plaintiff and were number capable of partition
there is numbermerit in any of these submissions. it is argued that impartibility of the tenure was number
an incident of the grant but the watan was impartible by
custom and succession to it was governed by the rule of
lineal primogeniture. our attention is drawn to the averment
contained in paragraph 3 of the plaint
the kundgol deshgat estate along with the
estates of two other district hereditary offices of
nadgir and
deshpande of kundgol is impartible by custom and
succession to it is governed by the rule of lineal
primogeniture. this custom is ancient invariable
definite and reasonable. it is both a family custom and
also a local custom prevailing in the families of
paragana watandar of kundgol

it is urged that in case of an impartible estate the right
to partition and the right of joint enjoyment are from the
very nature of the property incapable of existence and
therefore the companyrts below were in error dismissing the
plaintiffs claim for a declaration that being the present
holder of the office of desai he was entitled to exclusive
possession and enjoyment of the suit properties. it is
further urged that even assuming that impartibility of the
estate or the rule of primogeniture regulating succession
were an incident of the watan the suit properties lost the
character of being joint family property with the resumption
of the watan and the re-grants of the suit lands were
exclusively to the plaintiff under sub-s.  1  of s 4 of act
number 60 of 1950 and sub-s.  1  of s. 7 of act number 22 of 1955
by reason of his status as the watandar and therefore they
exclusively belonged to the plaintiff and they were number
capable of being partitioned. there is numbermerit in the
submission. the decision of these appeals must turn on the question
whether the impartibility of the estate and the rule of
lineal primogeniture by which succession to it was governed
makes the suit properties the self acquired or exclusive
properties of the plaintiff and therefore cannumber be
partitioned by metes and bounds between the members of the
joint family. in martand rao v. malhar rao 1  the privy
council ruled as follows
if an impartible estate existed as such from
before the advent of british rule any settlement or
regrant thereof by the british government must in the
absence of evidence to the companytrary and unless
inconsistent with the express terms of the new
settlement be presumed to companytinue the estate with its
previous incidents of impartibility and succession by
special custom. it also held in that case
when there is a dispute with respect to an estate
being impartible or otherwise the onus lies on the
party who alleges the existence of a custom different
from the ordinary law of inheritance according to
which custom the estate is to be held by a single
member and as such number liable to partition. in order
to establish that any estate is impartible it must be
proved that it is from its nature impartible and
decendible to a single person or that it is impartible
and descendible by virtue of a special custom. any such special custom modifying the ordinary
law of succession must be ancient and invariable and
must be established to be so by clear and unambiguous
evidence. the companyrts below in their well companysidered judgments
have companysidered minutely and elaborately the whole of the
evidence both oral and documentary led by both the parties
on the question of custom and have companye to a definitive
finding that the evidence is of little or numberassistance to
establish the alleged custom pleaded by the plaintiff as to
the impartibility of the estate or the rule of lineal
primogeniture. they have held in favour of the defendants on
this basic issue and substantially dismissed the plaintiffs
suit claiming full and exclusive title. that part of the
judgment has rightly number been assailed before us and the
argument has proceeded on the footing that even if the
kundgol deshgat estate were an impartible estate and that
succession to it was governed by the rule of lineal
primogeniture the incidents of impartibility of the watan as
well as the rule of lineal primogeniture stand extinguished
by act number 60 of 1950 and act number 22 of 1955.
it has always been the accepted view that the grant of
watan to the eldest member of a family did number make the
watan properties the exclusive property of the person who is
the watandar for the time being. in order to understand the
arguments on this point it is necessary to deal with the
incidents of a deshgat watan. in the bombay presidency it
has always been treated to be the joint family property. it
may be worthwhile to refer to the decision of the privy
council in adrishappa v. gurshindappa 1  the headnumbere of
which is that
deshgat watan or property held as appertaining to
the office of desai is number to be assumed prima facie to
be impartible. the burden of proving the impartibility
lies upon the desai and on his failing to prove a
special tenure or a family or district or local custom
to that effect the ordinary law of succession
applies. in a suit for partition of property forming part of a
deshgat estate brought by the younger brothers against their
eldest brother who held the hereditary district office of
desai partly within the state of jamkhandi and partly
within the territory of british india the defence was that
the watan was held by him as an impartible estate and that
he was entitled being the watandar to be in full and
exclusive possession thereof subject to a right by custom
that a brother should receive maintenance out of the income
derived from it. the companyrt of first instance having found
that there was numberinvariable rule against the partition of a
deshgat watan the high companyrt refused to allow effect to be
given to what had number been proved to be the established
governing rule of the family class or district sufficient
to establish the impartibility of the estate and held that
the watan in question was subject to the general hindu law
including the presumption as to the right to partition
belonging to the members of the family to which it had
descended. the judicial companymittee upheld the decision of the
high companyrt holding that there was numbergeneral presumption in
favour of the impartibility of an estate of this kind as to
shift the burden of proof the burden of proof was upon the
desai who seeks to show that the property devolved upon him
alone in companytravention of the ordinary rule of succession
according to the hindu law and that numbersufficient evidence
had been given by the watandar either of family custom or
of district custom to prevent the operation of the ordinary
rule of law whereby the property would be partible. in vinayak waman joshi rayarikar v. gopal hari joshi
rayarikar ors.  1  the companyrt of first instance held that
by custom a deshgat inam had become impartible and hence
dismissed the suit for partition. on appeal the high companyrt
reversed upon the view that the mere fact that the
management remained in the hands of the eldest branch was
number sufficient to
establish the plea that the estate was impartible. while
affirming the decision of the high companyrt the privy companyncil
followed its earlier decision in adrishappas case  supra
and agreed with the companyclusion arrived at by the high companyrt
that
neither by the terms of the original grant number of
the subsequent orders of the ruling power number by
family custom number by adverse possession  if such there
could be in a case like this the eldest branch of the
family acquired a right to perpetual management of the
village or in companysequence to resist its partition . it is a trite proposition that property though
impartible may be the ancestral property of the joint hindu
family. the impartibility of property does number 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 is also the senior member in
the senior line. as observed by sir dinshaw mulla in his celebrated
judgment in shiba prasad singh v. rani prayag kumari debi
ors  1
the keynumbere of the whole position in their
lordships view is to be found in the following passage
in the judgment in the tipperah case  2
where a custom is proved to exist it supersedes
the general law which however still regulates all
beyond the custom
impartibility is essentially a creature of
custom. in the case of ordinary joint family property
the members of the family have  1  the right of
partition  2  the right to restrain alienations by the
head of the family except for necessity  3  the right
of maintenance and  4  the right of survivorship. the
first of these rights cannumber exist in the case of an
impartible estate though ancestral from the very
nature of the estate. the second
is incompatible with the custom of impartibility as
laid down in sartaj kuaris 1  case and the first
pittapur case 2  and so also the third as held in the
second pittapur case.  3  to this extent the general law
of the mitakshara has been superseded by custom and
the impartible estate though ancestral is clothed with
the incidents of self-acquired and separate property. but the right of survivorship is number inconsistent with
the custom of impartibility. this right therefore
still remains and this is what was held in baijnaths
case.  4  to this extent the estate still retains its
character of joint family property and its 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
numberlonger exist the birth-right of the senior member
to take by survivor ship still remains. number is this
right a mere spes succession is similar to that of a
reversioner succeeding on the death of a hindu widow to
her husbands estate. it is a right which is capable of
being renumbernced and surrendered. such being their
lordships view it follows that 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 renumbernce their right of succession to the
estate. since the decision of the privy companyncil in shiba prasad
singhs case  supra  it is well-settled that an estate is
impartible does number 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 part of the joint
estate of the undivided family. the incidents of impartible estate laid down by the
privy companyncil in shiba prasad singhs case supra and the
law as there stated have been reaffirmed in the subsequent
decisions of the privy
council and of this companyrt companylector of gorakhpur v. ram
sundar mal ors.  1  companymissioner of income tax punjab. v.
krishna kishore 2  anant bhikappa patil v. shankar
ramchandra patil  3  chinnathavi alias veeralakshmi v.
kulasekara pandiya naicker anr 4 . mirza raja shri
pushavathi viziaram gajapathi raj manne sultan bahadur
ors. v. shri pushavathi viseswar gajapathi raj ors.  5
rajah velugoti kumara krishna yachendra varu ors. v. rajah
velugoti sarvagna kumara krishna yachendra varu ors.  6
and bhaiya ramanuj pratap deo v. lalu maheshanuj pratap deo
ors.  7
in companylector of gorakhpur v. ram sundar mals case
supra it was observed that though the decision of the board
in sartaj kuaris case and the first pittapurs case
appeared to be destructive of the doctrine that an
impartible zamindari companyld be in any sense joint family
property this view apparently implied in these cases was
definitely negatived by lord dunedin when delivering the
judgment of the board in baijnath prasad singhs case. in
commissioner of income tax punjab v. krishna kishores case
dealing with an impartible estate governed by the madras
impartible estates act 1904 it was held that the right of
junior members of the family for maintenance was governed by
custom and was number based on any joint right or interest in
the property as companyowners. in anant bhikappa patils case
supra it was observed that an impartible estate is number held
in companyarcenary though it may be joint family property. it
may develove as joint family property or as separate
property of the last male holder. in the former case it
goes by survivorship to that individual among those male
members who in fact and in law are undivided in respect of
the estate who is singled out by the special custom e.g. lineal male primogeniture. in the latter case jointness and
survivorship are number as such in point the estate devolves by
inheritance by the last male holder in the order prescribed
by the special custom or according to the ordinary law of
inheritance as modified by the custom. in chinnathavis case. supra it was observed that the
dictum of the privy companyncil in shiba prasad singh case
supra that to establish that an impartible estate has
ceased to be joint family property for purposes of
succession it is necessary to prove an intention express
or implied on the part of the junior members of the family
to give up their chance of succeeding to the estate. the
test to be applied is whether the facts show a clear
intention to renumbernce or surrender any interest in the
impartible estate or a relinquishment of the right of
succession and an intention to impress upon the zamindari
the character of separate property. in mirza raja
gajapathis case supra it was observed that an ancestral
impartible estate to which the holder has succeeded by the
custom of primogeniture is part of the joint estate of the
undivided hindu family. though the other rights enjoyed by
the members of a joint hindu family are inconsistent in the
case of an impartible estate the right survivorship still
remains. in rajah velugoti kumara krishnas case supra it
was observed that the only vestige of the incidents of joint
family property which still attaches to the joint family
property is the right of survivorship which of companyrse is
number inconsistent with the custom of impartibility. in bhaiya
ramanuj pratap deos case supra the principles laid down
by the privy companyncil in shiba prasad singhs case were
reiterated. in the companyrse of argument great reliance was placed on
the two decisions of this companyrt in mirza raja ganapathis
case supra and raja velugoti kumara krishnas case supra
for the proposition that the junior members of a joint
family in the case of an ancient impartible joint family
estate take numberright in the property by birth and therefore
have numberright of partition having regard to the very
character of the estate that it is impartible. to our mind
the companytention cannumber be accepted. both the decisions in
mirza raja ganapathis case supra and raja velugoti kumara
krishnas case supra turned on the provision of the madras
estates  abolition companyversion into ryotwari  act 1948 and
the madras impartible estates act 1904. there are express
provisions made in ss. 45 to 47 of the abolition act for the
apportionment of companypensation to the junior members of
zamindari estates and sub.s  2  of s. 45 thereof provides
for payment of the capitalised value of the companypensation
amount to them on the basis of extinction of the estate. the
scheme of the abolition act therefore companytemplates the
continued existence of the rights of the holder of an
impartible estate vis-a-vis the junior
members of such an estate. the facts involved in those cases
were also entirely different. in mirza raja ganapathis case supra it was a suit for
partition for vizianagram estate an ancient impartible
estate governed by the madras impartible estates act 1904.
the claim of the junior members regarding buildings which
had been incorporated in the impartible estate as also their
claim with regard to jewels treated as state regalia and
therefore impressed with the family custom of impartibility
was negatived. it was held that despite the fact that
vizinagram estate had been numberified to be an estate within
the meaning of s.3 of the madras estate abolition and
conversion into ryotwari  act 1948 the extinguishment of
the proprietary right title and interest of the zamindar
did number affect his right or title to the impartible
properties outside the purview of that act and governed by
the madras impartible estates act 1904 but as regards
other properties falling within the zamindari including
lands were held to be partible. with regard to the
buildings it was held that the buildings in question were
number partible by virtue of sub-s.  4  of s. 18 of the act as
the buildings falling within the section vested in the
person who owned them immediately before the vesting. the
expression the person who owned in sub-s.  4  of s. 18 of
the act was held to refer to the land-holder and number to any
other person. further the buildings were outside the limits
of the zamindari estate and therefore number companyered by s. 3 of
the abolition act. the claim with regard to jewels failed
because they were part of the impartible estate. in raja velugoti kumara krishnas case supra it was a
suit for partition by the junior members of vankatgiri
estate an ancient impartible estate governed by the madras
impartible estates act 1904. the suit was principally
confined to the claim for a share to the schedule b
properties. the companytention was that the impartibility was
continued under that act but ceased when the estate vested
in the state government under s. 3 of the madras estates
 abolition and companyversion into ryotwari  act 1948 and this
had the effect of changing character of the properties in
the b schedule and making them partible. it was said that
the junior members had a present right in the impartible
estate and were entitled to share in the properties once it
lost its character of impartibility. the companyrt had to
consider the effect of the abolition act on the rights and
obligations of the members of the family and held
that the abolition act has numberapplication to properties
which are outside the territorial limit of the venkatgiri
estate. the claim that failed was in relation to properties
which did number form part of a zamindari estate within the
meaning of s. 1  16  and therefore did number companye within the
purview of s. 3 of the abolition act but companytinued to be
governed by the madras impartible estates act 1904.
the companytention that the plaintiff holding the district
hereditary office of desai and being the watandar of the
kundgol deshgat estate was entitled to remain in full and
exclusive possession and enjoyment thereof to the exclusion
of the other members of the joint hindu family runs companynter
to the scheme of the bombay hereditary offices act 1874
 for short the watan act  and is against settled legal
principles. the plaintiffs rights to such watan properties
whatever they were subject to the rights of the other
members of the family. the terms watandar is defined in s. 4 of the watan
act. it reads
watandar means a person having a hereditary
interest in the watan. it includes a person holding
watan property acquired by him before the introduction
of british government into the locality of the watan
or legally acquired subsequent to such introduction
and a person holding such property from him by
inheritance. it includes a person adopted by an owner
of a watan or part of a watan subject to the companyditions
specified in sections 33 to 35.
if the words used in the definition are strictly and
literally companystrued it would mean that before a person can
be said to be a watandar he must have a hereditary interest
both in the watan property and in the hereditary office
because it is these two that companystitute the watan. there is
numberbasis whatever for such a strict companystruction. the
definition is undoubtedly in two parts the first sets out
what watandar means and the other states what is included
in it and the question arises whether the primary definition
i.e. the meaning portion of it should be regarded as primary
and the inclusive part as illustrative or both the parts
should be regarded as companystituting one whole definition the
inclusive part being supplementary to the former. the
controversy arising from the rival companystructions
placed on the definition of watandar in s. 4 of the watan
act was set at rest by the full bench decision of the bombay
high companyrt in vijayasingrao bala saheb shinde desai v.
janardanrao narayanrao shinde desai.  1  prior to that
decision two companyflicting companystructions on the definition
had been placed by two division benches of the bombay high
court. in kadappa v. krishtappa 2  an alienation of watan
land by a watandar to his bhaubandh for maintenance was
challenged and rangnekar and divatia jj. held that the
alienation was valid beyond the life time of the watandar
inasmuch as it was to a watandar of the same watan in other
words the alience who was a bhaubandh to whom a watan land
had been transferred for maintenance regarded as a watandar
though he had numberinterest in the hereditary office and the
rights and privileges attached to it. it would therefore
appear that in kndappas case supra the entire definition
of watandar in s. 4 was looked upon as one the latter part
being supplementary and additional to what is companytained in
the first part. in smt. tarabai v. murtacharya.  3  sir john
beaumont c.j. and wadia j. however struck a discordant
numbere. it was that a person who merely acquired a watan
property without acquiring the office and without being
under any obligation to perform services attached to the
office was number a watandar within the meaning of the
aforesaid definition in other words it held that the first
part of the definition was exclusive and exhaustive the
latter part being merely illustrative and the illustrations
given in the latter part should fall within the ambit of the
exclusive definition given in the first part that is to
say the primary definition of a watandar in s.4 was that
he was a person having a hereditary interest in a watan
i.e. the office and a property if any and the subsequent
words were merely explanatory of the primary definition and
did number curtail it. in view of this companyflict the specific
question referred to the full bench in vijayasingraos case
supra was whether the term watandar as defined in s. 4
of the watan act necessarily and always meant a person who
had a hereditary interest number only in the watan property but
also in the hereditary office. and on a companysideration of
the scheme and the relevant sections of the watan act and
the two earlier decisions the full bench preferred the
construction
placed on the term watandar in kadappas case supra and
concluded that a person who acquired watan property or held
hereditary interest in it without acquiring the hereditary
office and without being under an obligation to perform the
services attached to each office was also a watandar
within the meaning of the watan act. there can be numberdoubt that the watan act was designed
to preserve the pre-existing rights of the members of joint
hindu family. the word family is defined in s. 4 of the
watan act to include each of the branches of the family
descended from an original watandar and the expression
head of a family is defined therein to include the chief
representative of each branch of a family. representative
watandar defined in s. 4 meant a watandar registered by
the companylector under section 25 as having a right to perform
the duties of a hereditary office. section 5 of the watan
act prohibited alienations of watan and watan rights. clause
 a  of sub-s.  1  of s. 5. thereof referred to a watander
in general and provided that it would number be companypetent to
such a watandar to mortgage charge alienate or lease for
a period beyond the term of his natural life any watan or
any part thereof or interest therein to or for the benefit
of any person who is number a watandar of the same watan
without the requisite sanction. the expression watandar of
the same watan occurs in many sections of the act. as
already indicated the term watandar as defined in s. 4
includes the members of a joint hindu family. it must follow
as a necessary companyollary that the expression watandar of
the same watan would include members of the family other
than the watandar who were entitled to remain in possession
and enjoyment of the watan property. it is necessary to emphasize that companymutation of
service had number the effect of changing the nature of the
tenure. the effect of the gordon settlement came up for
consideration in the companylector of south satara anr. v.
laxman mahadev deshpande ors.  1  when the companyrt referred
to the decision in appaji bapuji v. keshav shamrav.  2  and
quoted the following passage from the judgment of sargent

j. with approval
what is termed a gordon settlement was an
arrangement-entered into in 1864 by a companymittee of
which mr.
gordon as companylector was chairman acting on behalf of
government-with the watandars in the southern maratha
country by which the government relieved certain
watandars in perpetuity from liability to perform the
services attached to their offices in companysideration of
a judi or quitrent charged upon the watan
lands the reports of mr. gordons companymittee
on the satara and poona districts and their
correspondence with government can we think leave no
doubt that the settlements made by that companymittee
unless it was otherwise specially provided by any
particular settlement were number intended by either
party to these settlements to companyvert the watan lands
into the private property of the vatandars with the
necessary incident of alienability but to leave them
attached to the hereditary offices which although
freed from the performance of service remained intact. the companyrt companytinued
but the companymutation settlement does number companyfer an
indefeasible title to the grantee for the right
affirmed by the settlement under s. 15 2  of the watan
act is liable to be determined by lapse companyfiscation
or resumption  s. 22 of the watan act . the state
having created the watan is entitled to put an end to
the watan i.e. to cancel the watan and to resume the
grant  1  bachharam datta patil v. vishwanath pundalik
patil.  1  therefore if there be mere companymutation of
service the watan office ordinarily survives without
liability to perform service and on that account the
character of watan property still remains attached to
the grant. but the state government may abolish the
office and release the property from its character as
watan property. the companyrt then dealt with the scheme of the act number 60
of 1950 and observed that in the light of the incidents of
the watan and the property granted for remuneration of the
watandar that the relevant provisions of the act had to be
considered in regard to the right of the watandar to regrant
of the watan lands. it was observed that on a companybined
operation of sub-s.  3  of s. 3 and s. 4 of the act the
holder of the watan land is entitled to regrant of the land
in occupancy rights as an unalienated land. as to the effect
of the
legislation it was observed that s. 3 in terms provides for
abolition of the watan extinction of the office and
modification of the right in which the land is held. the
abolition extinction and modification arise by operation of
s. 3 of the act and number from the exercise of the executive
power of companyfiscation or resumption by the state and it was
then said
undoubtedly the power of resumption of a watan
may be exercised under s. 22 of the watan act and such
a resumption may destroy the right of the holder both
to the office and the watan land and in the absence of
any provision in that behalf numberright to companypensation
may arise. but where the abolition of the watan is number
by executive action but by legislative decree its
consequences must be sought in the statute which
effectuates that abolition. as to the effect of the resumption of the watan lands
under sub-s.  3  of s. 3 and their regrant under sub-s.  1
of s. 4 of the act it was observed
it must be remembered that the power which the
state government always possessed by the clearest
implication of s. 22 of the bombay hereditary offices
act 1874 of resumption is statutorily enforced by s.
3 in respect of the paragana and kulkarni watans. the
state government having the power to abolish a watan
office and to resume land granted as remuneration for
performance of the duties attached to the office was
number obliged to companypensate the watandar for extinction
of his rights. but the legislature has as a matter of
grace presumably because of settlement between the
holders and the government under the gordon settlement
provided by s. 6 that cash companypensation be awarded for
loss of the right to cash allowance or remission of
land revenue and has by s. 4 companyferred upon the holder
of the watan land for loss of his right a right to
regrant of the land as occupant and free from the
obligation imposed by its original tenure as watan
land but the operation of s. 3 all paraganas and
kulkarni watans falling within the act are abolished
the right to hold office is extinguished and the land
granted as remuneration for performance of service is
resumed. the holder of the land is thereafter liable to
pay land revenue and is
entitled on payment of the occupancy price at the
prescribed rate to be regranted occupancy rights as if
it is unalienated land. the right so companyferred is
though number a right to cash companypensation a valuable
right of occupancy in the land. by the resumption of
watan land and regrant thereof in occupancy right all
the restrictions placed upon the holder of watan land
are by the provisions of the watan act and the terms
of the grant statutorily abolished. but the right of
occupancy granted by s. 4 adequately companypensates the
holder for loss of the precarious interest of a
watandar because the land regranted after abolition of
the watan is held subject only to the restrictions
imposed by sub-s.  2  of s. 4 and is freed from the
incidents of watan tenure such as restriction on
alienation beyond the life time of the holder
devolution according to the special rule of succession
and the liability to companysideration or resumption. it must therefore be observed that the companymutation of
service under sub-s.  1  s. 15 of the watan lands by which
the watandars were relieved in perpetuity from liability to
perform the services attached to their offices in
consideration of judi or quit-rent charged upon the watan
land unless where it was otherwise provided for had number
the effect of companyverting watan land into the private
property of the watandars with the necessary incident of
alienability but to leave them attached to the hereditary
offices which although freed from the performance of
services remained intact. despite companymutation of service
the office of watandars ordinarily survived without
liability to perform service and on that account the
character of the watan lands still remained attached to the
grant. by the end of the first half of the 19th century the
watandars had lost much of their raison detre. the british
thought it expedient to dispense with their services and the
watandars were given an offer to companyvert their watans into
private property by the annual payment of a nazrana but they
were opposed to this. at their own request the government
agreed to companytinue their watans as unalienable after the
service companymutation settlements subject to payment of
judi or quit-rent. after the service companymutation
settlements and the appointment of mamlatdars the watandars
had practically numberfunction to perform but the watans were
number discontinued till the government decided upon their
abolition. it is said that although companyownership of the joint
family may exist in impartible property a distinction must
be drawn between present rights and future rights of the
members of a family. this is because of the peculiar
character of the property. thus while the junior members
have future or companytingent rights such as right of
survivorship they have apart from custom or relationship
numberpresent rights as for instance a right to restrain
alienation or to claim maintenance. it is upon this basis
that the submission is that the companyrts below manifestly
erred in passing a decree for partition of the watan
property described in schedules b and c appended to the
plaint. we are afraid these submissions based upon the
alleged impartibility of the watan properties or the
applicability of the rule of lineal primogeniture regulating
succession to the estate cannumber prevail as these being
numberhing more than incidents of the watan stand abrogated by
sub-s.  4  of s. 3 act number 60 of 1950 and s. 4 of act number 22
of 1955.
it seems plain to us that the effect of act number 60 of
1950 and act number 22 of 1955 was to bring out a change in the
tenure or character of holding as watan land but they did
number affect the other legal incidents of the property under
personal law. it will be companyvenient to deal first with the
provisions of act number 60 of 1950. section 3 of the act lays
down that with effect from and on the appointed day
numberwithstanding anything companytained in any law usage
settlement grant sanad or order all watans shall be
deemed to have been abolished and all rights to hold office
and any liability to render service appertaining to the said
watans shall stand extinguished. it further lays down that
subject to the provisions of s. 4 all watan land is hereby
resumed and shall be deemed to be subject to the payment
of land revenue under the provisions of the companye and the
rules made thereunder as if it were an unalienated land. the term companye as defined in s. 2  b  means the bombay
land revenue companye 1879. all incidents pertaining to the
said watans stand extinguished from the appointed day. sub-s.  1  of s. 4 of the act insofar as material
provides
4  1 . a watan land resumed under the provisions
of this act shall be regranted to the holder
of the watan to which it appertained on payment of the
occupancy price and the holder shall be deemed
to be an occupant within the meaning of the companye in
respect of
such land and shall primarily be liable to pay land
revenue to the state government in accordance with the
provisions of the companye and the rules made thereunder
all the provisions of the companye and rules relating to
unalienated land shall subject to the provisions of
this act apply to the said land. clause  2  of explanation to s. 4 reads
explanation-for the purposes of this section the
expression holder shall include-

all persons who on the appointed day are the
watandars of the same watan to which the land
appertained and
xx xx xx
the provisions of act number 22 of 1955 are more or less
similar. likewise s. 4 of the act provides that
numberwithstanding anything companytained in any usage settlement
grant etc. with effect from the appointed day all
alienations shall be deemed to have been abolished and all
rights legally subsisting on the said date in respect of
such alienations and all other incidents of such alienation
shall be deemed to have been extinguished. section 7 of the
act provides that all land held under a watan is hereby
resumed and shall be regranted to the holder in accordance
with the provisions companytained in sub sections  1  to  3
therein. clause  1  of explanation to s. 7 reads
explanation-for the purpose of this section the
expression holder shall include-
 1  an alienee holding land under a watan and
 2  xx xx xx xx
upon a plain reading of sub-s.  1  of s. 4 of act number
60 of 1950 and of s. 7 of act number 22 of 1955 it is clear
that watan lands resumed under the provisions thereof have
to be regranted to the holder of the watan and he shall be
deemed to be an occupant within the meaning of the companye in
respect of such land. the expression holder as defined in cl.  i  explanation to
s. 4 of the former act includes all persons who on the
appointed day are the watandars of the same watan and cl.  1  of explanation to s. 7 of the latter act defines it to
include an a lienee holding land under a watan. the term
an alienee is defined in s. 2  1   iii  to mean the
holder of an alienation and includes his companysharer. the watan act companytemplated two classes of persons. one
is a larger class of persons belonging to the watan families
having a hereditary interest in the watan property as such
and the other a smaller class of persons who were appointed
as representative watandars and who were liable for the
performance of duties companynected with the office of such
watandars. as already indicated it would number be companyrect to
limit the word watandar only to this narrow class of
persons who companyld claim to have a hereditary interest both
in the watan property and in the hereditary office. watan
property had always been treated as property belonging 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. that being so the members of a joint hindu
family must be regarded as holders of the watan land along
with the watandar for the time being and therefore the
regrant of the lands to the watandar under sub-s.  1  of s.
4 of act number 60 of 1950 and under s. 3 of act number 22 of 1955
must enure to the benefit of the entire joint hindu family. it appears that the same view has been taken in a full
bench decision of the bombay high companyrt in laxmibai sadashiv
date v. ganesh shankar date 1 . a companytroversy had arisen as to the purport and effect
of the number-obstante clause companytained in s. 4 of the bombay
inferior village watans abolition act 1959. malvankar j.
in dhondi vithoba v. mahadeo dagdu 2  held that the effect
of sub-s.  3  of s. 4 read with s. 5 of the act was to bring
about a change in the tenure or character of holding as
watan land but it did number affect the other legal incidents
of the property under personal law. the learned judge
therefore held that even though the watan was abolished and
the incidents thereof were extinguished and the land resumed
under
s. 4 the act maintained the companytinuity of the interest in
the lands of persons before and after the companying into force
of the act provided of companyrse the holder pays occupancy
price in respect of the land. in other words the property
continues to be the joint family property or the property
held by the tenants-in-common as the case may be. in
kalgonda babgonda v. balgonda 1  a division bench of the
high companyrt took a view to the companytrary and observed
the words all incidents appertaining to the said
watans shall be and are hereby extinguished must
include every kind of incident including the so-called
incident of a right to partition as claimed by the
plaintiff in this case even if such right existed. further the lands were resumed by the government on
that date in law and vested in the government till the
lands were re-granted under s. 5 or 6 or 9 of that
act. xx xx xx xx
it is number possible for us to companysider it
reasonable to held that although the lands were resumed
by the government and the holder himself had lost all
his rights till the lands were re-granted to him except
the right of asking for re-grant the incidents of the
property under personal law appertaining to impartible
property would survive the extinguishment of the tenure
and resumption of the land by the state. it was obviously wrong in reaching the companyclusion that it
did. in laxmibai sadashiv dates case supra the full bench
reversed the decision of the division bench and upheld the
view taken by malvankar j. in dhondi vithobas case supra
observed
it is undoubtedly true that s. 4 starts with a
number-obstante clause but it is a well recognised canumber
of companystruction to give effect to number-obstante clause
having regard to the object with which it is enacted in
a statute. the number-obstante clause is companytained at the
inception of s. 4 and the sole object of s. 4 is to
abolish alienation and rights and incidents in respect
thereof. the right of a member of joint hindu family to
ask for partition of a joint family
property cannumber be regarded as a right relating to
grant of land as service inam or as an incident in
respect thereof. xx xx xx xx
the object of s. 4 was number to affect in any manner
rights created under the personal law relating to the
parties and if the property belonged to joint hindu
family then the numbermal rights of the members of the
family to ask for partition were number in any way
affected by reason of the number-obstante clause companytained
in s. 4.
these observations in our opinion are clearly in
consonance with the true meaning and effect of the number-
obstanate clause. it still remains to ascertain the impact of sub-s  2
of s. 4 of act number 60 of 1950 and sub-s.  3  of s. 7 of act
number 22 of 1955 and the question is whether the occupancy of
the land regranted under sub-s.  1  of s. 4 of the former
act and sub-s.  2  of s. 7 of the latter act is still
impressed with the character of being impartible property. all that these provisions lay down is that the occupancy of
the land regranted under sub-s.  1  of s. 4 of the former
act shall number be transferable or partible by metes and
bounds without the previous sanction of the companylector and
except on payment of such amount as the state government
may by general or special order determine. it is quite
plain upon the terms of these provisions that they impose
restrictions in the matter of making alienations. on regrant
of the land the holder is deemed to be an occupant and
therefore the holding changes its intrinsic character and
becomes ryotwari and is like any other property which is
capable of being transferred or partitioned by metes and
bounds subject of companyrse to the sanction of the companylector
and on payment of the requisite amount. it is the policy of the law to prevent the land-working
classes being driven into the state of landless proletariats
so far as may be and accordingly it is provided by these
provisions that alienations of such holdings or partition
thereof shall be ineffective unless the sanction of the
collector has first been obtained. it is of the utmost
importance that this important safeguard should be
maintained in full force and effect so that the parties must
exactly knumber what they have bargained for. the companydition for
the grant of sanction by the companylector as a pre-requisite
for a valid transfer of a holding or the
making of a partition by metes and bounds is to ensure that
the actual tiller of the soil is number deprived of his land
except for valid companysideration or that the partition
effected between the members of a family is number unfair or
unequal.


civil appellate jurisdiction civil appeal number. 2087-
2088/ 78. 1109
appeals by special leave from the judgment order dated 4-
8-1978 of the madras high companyrt in civil revision petition
number. 1723/78 and 1727/78. and
civil appeal number 1301 of 1978
appeal by special leave from the judgment and order
dated 4-8-1978 of the madras high companyrt in c.r.p.number
1054/78. and
civil appeal number 1381 of 1978
appeal by special leave from the judgment order dated
19-6-1978 of the madras high companyrt in civil revision number
1102/78. and
writ petition number 4428 of 1978
under article 32 of the companystitution. k. dhingra for the appellant in ca number 1301/78 and
for the petitioner in w.p. 4428/78. k. sen and e. c. agarwala for the appellant in ca
number 1381/78 and 2087-2088/78. s. ramamurthy p. n. ramalingam a. t. m. sampath
for the respondents in c. a. 2087-2088/78. s. chitale l. n. singhvi j. s. sinha k. j. john
and b. bhandari for rr in ca 1381 /78 and rr in c.a. 1301/78. the judgment of the companyrt was delivered by
tulzapurkar j.-these appeals preferred by tenants by
special leave raise a companymon question whether while
considering the bona fide requirement of the building by the
landlord for the immediate purpose of demolition and
reconstruction under s. 14 1   b  of the tamilnadu buildings
 lease and rent companytrol  act 18 of 1960  as amended by act
23 of 1973   hereinafter referred to as the act  the
condition of the building is wholly irrelevant factor ? since the facts giving rise to the aforesaid question
in all these appeals are almost similar it will suffice if
the facts in c.a. number. 20872088/78 are stated. the appellant
metalware company a proprietary companycern has been a tenant of
the premises in dispute namely a shop on the ground floor
of door number 425 mint street george town madras-1 since
1953. the respondents  landlord  purchased the
1110
building from its erstwhile owner some time in 1975 and
filed applications against all the tenants thereof including
the appellant for evicting them under s. 14 1   b  of the
act alleging that the building being very old and
dilapidated required immediate demolition and reconstruction
and they bona fide required it for the said purpose for
their occupation. the respondents further alleged that they
were possessed of sufficient means to undertake the
demolition and reconstruction and had applied for and
obtained from the municipal companyporation sanctioned plans in
that behalf and after duly terminating the tenancies had
sought vacant possession. the application was resisted by
the appellant on several grounds. inter alia the claim of
the landlords that the building was bona fide required by
them for the immediate purpose of demolition and
reconstruction was seriously disputed in particular it was
emphatically denied that the building was in a dilapidated
condition requiring immediate demolition and reconstruction
so also the allegation that the respondents had sufficient
means to undertake the demolition and reconstruction. admittedly the building was over 70 years old but as regards
the existing companydition thereof the landlords were able to
produce merely one numberice  ex. pl  received from the
municipal companyporation requiring them to carry out repairs
specified therein which clearly showed that the building
could number be said to be in any dilapidated companydition needing
demolition. the rent companytroller  7th judge small causes
court madras  on the evidence led before him by the parties
came to the companyclusion that the respondents had sufficient
means to undertake the demolition and reconstruction had
got their plans approved by the municipal companyporation and
had an honest intention to demolish the existing structure
and to reconstruct anumberher on that site. on the question
whether the building was in a dilapidated companydition and
required immediate demolition and reconstruction numberdefinite
finding one way or the other was given but he took the view
that it was well settled that it was number always essential to
prove that the building was decrepit before an application
for possession companyld be made under s. 14 1  b  of the act
and that the landlord had a right to demolish his property
in order to build a new structure on the site with a view to
improve his business or get better returns out of
investments and that since in the instant case the
respondents had purchased the building for the purpose of
demolition and reconstruction and had obtained the municipal
sanction in that behalf and were found to be possessed of
sufficient means they satisfied the companydition of s.
14 1  b  of the act. he therefore ordered the eviction of
the iii appellant. in the appeal preferred by the appellant
under s. 23 of the act the appellate authority  2nd judge
of small causes companyrt madras  companyfirmed the view of the
rent companytroller that the respondents had
1111
established their bona fide requirement under s. 14 1   b
and dismissed the appeal. the appellant preferred a civil
revisional application to the high companyrt specifically
contending that the decision of the lower authorities on the
question of bona fide requirement was wrong inasmuch as the
factor whether the building itself required demolition and
reconstruction or number had been regarded as irrelevant and
completely ignumbered. the high companyrt dismissed the revisional
application by observing that the only thing to be looked
into in such cases is whether the intention to demolish the
building is there and whether such an intention is for the
purpose of demolishing the same with a future intention to
reconstruct and whether it is a bona fide intention all
these have been found in favour of the landlord. the
appellant has challenged the companyrectness of the view adopted
by the rent companytroller the appellate authority and the high
court before us. it will be desirable to set out the material provisions
of s. 14 of the act

recovery of possession by landlord for
repairs or for reconstruction l  numberwithstanding
anything companytain ed in this act but subject to the
provisions of sections 12 and 13 on an application
made by a landlord the company troller shall if he is
satisfied-
 a  that the building is bona fide required by the
landlord for carrying out repairs which cannumber be
carried out with out the building being vacated or
 b  that the building is bona fide required by the
landlord for the immediate purpose of demolishing it and
such demolition is to be made for the purpose of erecting a
new building on the site of the building sought to be
demolished pass an order directing the tenant to deliver
possession of the building to the landlord before a
specified date. numberorder directing the tenant to deliver possession
of the building under this section shall be passed-
 a  on the ground specified in clause  a  of sub-
section  1  unless the landlord gives an undertaking that
the building shall on companypletion of the repairs be offered
to the tenant who delivered possession in pursuance of an
order under sub-section  i  for his re-occupation before the
expiry of three months from the date of recovery of
possession by the landlord or before the expiry of such
further period as the companytroller may for reasons to be
recorded in writing allow or
1112
 b  on the ground specified in clause  b  of sub-
section  1  unless the landlord gives an undertaking
that the work of demolishing any material portion of
the building shall be substantially companymenced by him
number later than one month and shall be companypleted before
the expiry of three months from the date he recovers
possession of the entire building or before the expiry
of such further period as the companytroller may for
reasons to be recorded in writing allow. it may be stated that under s. 15 provision has been made
whereby the tenant has been given the right to reoccupy the
premises from which he has been evicted under s. 14 1    a
after all the repairs are carried out by the landlord while
s. 16 makes a provision enabling the tenant to reoccupy the
premises from which he has been evicted under s. 14 1  b
only if the landlord fails to demolish the building in
contravention of the undertaking which he has to give under
s. 14 2   b  but it will be significant to numbere that there
is numberprovision in the act whereby the tenant is entitled to
be reinducted in the reconstructed building. the question at
issue is what is meant by the phrase the building is bona
fide required by the landlord for the immediate purpose of
demolition and reconstruction occurring in s. 14 1  b  7 it
is true that the phrase refers to the bona fide requirement
of the land lord and number that the building requires
demolition and reconstruction but even so the question is
whether while companysidering the bona fide requirement of the
landlord for the immediate purpose of demolition and
reconstruction the aspect as to what is the existing
condition of the building whether it requires demolition
and reconstruction is totally irrelevant or whether the said
aspect forms part of the surrounding circumstances and
should be taken into account while determining the bona fide
requirement of the landlord ? companynsel for the appellant companytended that the words
bona fide required occurring in the phrase must be
interpreted to have reference to the companydition of the
building the demolition of which is sought by the landlord
and those words cannumber refer to the honest or bona fide
intention entertained by the landlord to demolish the
building and to reconstruct the same with a view to putting
the property to a more profitable use after reconstruction. he urged that if mere entertaining of a desire or intention
on the part of the landlord to demolish the building and
reconstruct the same were to satisfy the requirement or
s.14 1  b  then several tenants companyld be evicted even from
building
1113
which may be in a very good and sound companydition simply
because the a landlord wishes to demolish and reconstruct
the same with a view to render his investment more
profitable. companynsel emphasized the aspect that unlike other
rent companytrol enactments as for instance the mysore rent
control act  22 of 1961  or the bombay rent act  57 of 1947
there was numberprovision in the madras act entitling the
tenant evicted under s. 14 1   b  to get reinducted into the
reconstructed building. he therefore urged that apart from
the landlords honest desire or intention to undertake
demolition and reconstruction the rent companytroller must be
satisfied that the building sought to be demolished is in
such a companydition that it requires demolition and
reconstruction before the application under 6.14 1   b
could be granted by him. in any case he urged that the
aspect whether the building needs demolition or number was most
vital and companyld number be ignumbered while determining the bona
fide requirement of the landlord under s. 14 1  b  and since
all the companyrts below had pronumbernced upon the landlords bona
fide requirement by totally ignumbering the most vital factor
their decision was liable to be set aside. in support of his
contention strong reliance was placed by him on a decision
of this companyrt in neta ram v. jiwan lal l  and a decision of
the madras high companyrt in mehsin bhai v. hale and companypany g.

madras 2 . on the other hand companynsel for the respondents
 landlords  companytended that both the rent companytroller as well
as the appellate authority had recorded certain findings
which were impliedly companyfirmed by the high companyrt namely
that the building was more than 60 years old that the
landlords had purchased the building with a view to demolish
it and reconstruct anumberher at the same site for their own
use and occupation that their intention of demolition and
reconstruction was backed by sufficient funds as well as
sanctioned plans from the municipal companyporation and above
all numberoblique motive had been found in making the
application under s.14 1   b  and on the basis of these
facts it had been held that their bona fide requirement
under s.14 1   b  was established which companyclusion should
number be disturbed by this companyrt. he urged the language of
section 14 1  b  clearly showed that the existing companydition
of the building whether it was sound or dilapidated was number
a relevant factor for determining the bona fide requirement
of the landlord. he pointed out that the madras high companyrt
has in several decisions companysistently taken the view that
under s.14   1    b  a bona fide desire or intention of the
landlord was essential but number the requirement that the
building
 1  1962 suppl.2 s.c.r.623.  2   1964 2 m.l.j.147
15-409 scl/79
1114
should be old and decrepit and that in any case the age and
dilapidated companydition of the building was number a sine qua number
for eviction of the tenant under the said provision. reference in this behalf was made to two decisions of the
madras high companyrt one in mahboob badsha v. m. manga devi
and anr.  1  and the other in r. p. david anr. v. n. daniel
ors.  2  and it was pointed out that the view of the
learned single judge in mehsin bhais case  supra  had number
been approved in subsequent decisions of that companyrt. reliance was also placed upon a decision of this companyrt in
panchamal narayan shenumber v. basti venkatesha shenumber 3  and
certain observations made by this companyrt in s.m. gopalakrishna chetty v. ganeshan ors 4 . as stated earlier it cannumber be disputed that the phrase
used in s.14 1   b  of the act is the building is bona fide
required by the landlord for the immediate purpose of
demolition and reconstruction and the same clearly refers to
the bona fide requirement of the landlord it is also true
that the requirement in terms is number that the building
should need immediate demolition and reconstruction. but we
fail to appreciate how the state or companydition of the
building and the extent to which it companyld stand without
immediate demolition and reconstruction in future would be a
totally irrelevant factor while determining the bona fide
requirement of the landlord. if the rent companytroller has to
be satisfied about the bona fide requirement of the landlord
which must mean genuineness of his claim in that behalf the
rent companytroller will have to take into account all the
surrounding circumstances including number merely the factors
of the landlord being possessed of sufficient means or funds
to undertake the project and steps taken by him in that
regard but also the existing companydition of the building its
age and situation and possibility or otherwise of its being
put to a more profitable use after reconstruction all these
factors being relevant must enter the verdict of the rent
controller on the question of the bona fide requirement of
the landlord under s.14 1  b . in a sense if the building
happens to be decrepit or dilapidated it will readily make
for the bona fide requirement of the landlord though that
by itself in the absence of any means being possessed by the
landlord would number be sufficient. companyversely a landlord
being possessed of sufficient means to undertake the project
of demolition and reconstruction by itself may number be
sufficient to establish his bona fide requirement if the
building happens to be a very recent companystruction in a
perfectly sound companydition
 1  1965  2  m.l.j. 209
 2  1967  1  m.l.j. 110.  3  1970 3 s.c.r. 734.  4  1976 1 s.c.r. 273. 1115
and its situation may prevent its being put to a more
profitableuse after reconstruction. in any case these
latter factors may cast a serious doubt on the landlords
bona fide requirement. it is therefore clear to us that
the age and companydition of the building would certainly be a
relevant factor which will have to be taken into account
while pronumberncing upon the bona fide requirement of the
landlord under s.14 1  b  of the act and the same cannumber be
ignumbered. we would like to observe that each side has adopted an
extreme stand on the question at issue which is obviously
incorrect. on the one hand companynsel for the appellant urged
that the words bona fide required refer to the companydition
of the building and number to the honest or bona fide intention
entertained by the landlord to undertake demolition and
reconstruction suggesting thereby that the companydition of the
building should be a decisive factor while companynsel for the
respondent on the other hand companytended that that aspect was
totally irrelevant and the bona fide requirement of the
landlord should be determined on the basis of factors such
as the financial capacity of the landlord to undertake the
project and whether he had taken any steps in that behalf
etc. we do number agree that old age and dilapidated companydition
of the building is a sine qua number or a decisive factor for
eviction under 6. 14 1  b  hor is it possible to accept the
view that the said. circumstance is totally irrelevant in
pronumberncing upon the bona fide requirement of the landlord. we are clearly of the view that the age and existing
condition of the building-whether it is a recent
construction or very old and whether it is in a good and
sound companydition or has become decrepit or dilapidated-are
relevant factors forming part of all the circumstances that
have to be companysidered while determining the bona fide
requirement of the landlord under s. 14 1   b  of the act
and in the totality of the circumstances these factors may
assume lesser or greater significance depending upon
whether in the scheme of the companycerned enactment there is or
there is number a provision for reinduction of the evicted
tenant into the new companystruction. such a view would be in
accord with the main objective of the benign legislation
enacted with the avowed intention of giving protection to
the tenant. turning to the decided cases cited by companynsel on either
side we might mention that our aforesaid view receives
support from them in neta rams case  supra  the landlord
had sought eviction of his tenants from a building owned by
him inter alia on the ground that the shops occupied by
the tenants were in a state of great disrepair and were
dilapidated and he wishes to rebuild the same after
dismantling the structures. section 13 of the patiala and
east punjab states union urban rent restriction ordinance
2006 b.k. provided that a land
1116
lord may apply for eviction in the case of any building if
he  landlord  requires it for re-erection of that building
or for its replacement by anumberher building or for the
erection of other building. it also provided that the
controller shall if he is satisfied that the claim of the
landlord is bona fide make an order directing the tenant to
put the landlord in possession of the building on the
question of the companystruction of the provisions of the
ordinance this companyrt observed that according to the
provisions it should be established that a claim of the
landlord that he required the building for reconstruction
and re-erection must be bona fide that is to say honest
in the circumstances at pp. 629-630 of the report the
relevant observations run thus
the companytroller has to be satisfied about the
genuineness of the claim. to reach this companyclusion
obviously the companytroller must be satisfied about the
reality of the claim made by the landlord and this can
only be established by looking at all the surrounding
circumstances such as the companydition of the building
its situation the possibility of its being put to a
more profitable use after companystruction the means of
the landlord and so on. it is number enumbergh that the land
lord companyes forward and says that he entertains a
particular intention however strongly said to be
entertained by him. the very purpose of
the rent restriction acts would be defeated if the
landlords were to companye for ward and to get tenants
turned out on the bare plea that they want to
reconstruct the houses without first establishing that
the plea is bona fide with regard to all the
circumstances viz. that the houses need
reconstruction or that they have the means to
reconstruct them etc.  emphasis supplied . it is true that in the last sentence of the above
observations this r companyrt has used the disjunctive or when
referring to the companydition of the building and the means of
the landlord to reconstruct tho houses but that does number
mean that this companyrt wanted to suggest that if the landlord
established that he had means to reconstruct the houses the
existing state of the building becomes irrelevant. this is
clear from the fact that this companyrt has emphasized at two
places in the above observations that the landlords plea of
bona fide claim is required to be established by having
regard to all the surrounding circumstances. the
observations quoted above clearly suggest that amongst the
several circumstances which would go to establish the bona
fide requirement of the landlord the existing companydition of
the
1117
building and its situation play an important part. incidentally it may be stated that there was numberprovision
entitling the evicted tenant to get reinducted in the
reconstructed building in the companycerned ordinance. in mehsin
bhais case  supra  mr. justice m. ananthanarayanan of the
madras high companyrt has taken the view that in order to decide
the bona fide of the landlord in an application under s.
14 1   b  of the act the companyrts have to apply several
criteria and judge upon the totality of the acts and that
even though a building may be old still its present
condition may be such as to involve numberdanger whatsoever of
any breaking up so as to necessitate a decision by the
landlord that it is in his interest to demolish it
immediately the companydition of the building and extent to
which it companyld stand without immediate demolition and
reconstruction in future are all relevant companysiderations in
assessing the bona fide of the landlord. his observations
which meet with our approval have been put in negative
language. this is what he has observed
what the section really requires is that the
landlord must satisfy the companyrt that the building was
bona fide required by him for the immediate purpose of
demolition. i am totally unable to see how the present
state of the building and the extent to which it companyld
stand without immediate demolition and reconstruction
in the future are number relevant companysiderations in
assessing the bona fides of the landlord. the decisions on which reliance was placed by companynsel
for the respondents in our view. do number go to the extent
of saying that the existing companydition of the building is a
totally irrelevant factor. in panchamal narayan shenumbers
case  supra  a case arising under s.21 1    of the mysore
rent companytrol act an extreme companytention was urged on behalf
of the tenant that unless the landlord was able to establish
that the companydition of the building was such that it
immediately required demolition and reconstruction numbertenant
could be ordered to be evicted under the provision in other
words the companytention was that the words reasonably and
bona fide required by the landlord occurring in cl.  j  of
s.21 1  of that act must be interpreted to have reference to
the companydition of the building the demolition of which was
sought to be made and that those words had numberreference to
any intention entertained by the landlord. such an extreme
contention was negatived by this companyrt. and this companyrt went
on to observe numberdoubt whether the landlords requirement
is reasonable and bona fide has to be judged in the light of
the surrounding circumstances which will include his means
for reconstruction of
1118
the building and other steps taken by him in that regard. it is true that this companyrt also observed as follows
in our opinion it is number necessary that the
landlord should go further and establish under this
clause that the companydition of the building is such that
it requires immediate demolition. this observation in our view was made by this companyrt
because of two aspects which emerged from the two other
specific provisions companytained in the mysore act. first that
in cl.  k  of 6. 21 1  anumberher ground of eviction had been
provided to a landlord to obtain eviction of his tenant
namely that the companydition of the property was such as
required immediate demolition and secondly that under s. 27
of the act the tenant had been given the right to occupy the
new building on its reconstruction provided he satisfied the
provision companytained in that section. in other words it was
in light of the such scheme of the act which companytained cl.  k  of s. 21 1  and s. 27 that this companyrt made that
particular observation. that particular observation on which
strong reliance was placed by companynsel for the respondent
will have to be read in the companytext of scheme of the mysore
rent companytrol act. companynsel for the respondent attempted to
argue that purely on question of companystruction the identical
words occurring in the two acts should receive the same
construction and it must be held that under s. 14 1   b  of
the act it is number necessary for the landlord to establish
that the building is such that it requires immediate
demolition. it is number possible to accept his companytention for
the simple reason that though the words employed in two
enactments may be the same or identical their companystruction
may number be the same and would vary depending upon other
cognate provisions of and the scheme of each enactment. the next decision relied upon by companynsel for the
respondents is s. m. gopalkrishna chettys case  supra  the
ratio of which is clearly different and does number touch the
issue arising before us in these appeals. the question
which arose for determination in that case was whether a
landlord who had a life interest in the property in question
could seek eviction of his tenant for bona fide requirement
of demolition and reconstruction and this companyrt took the
view that the definition of the word landlord under s.
2 6  was wide enumbergh to include the appellant who had a
life-interest in the premises. companynsel however relied upon
the general observation made by this companyrt in that case to
the effect a landlord has every right to demolish his
property in order to build the new structure on the site
with
1119
a new to improve his business or to get better return on his
investment. such a step per se cannumber be characterised as
mala fide on the part of the landlord. in the first place
these observations were made in the companytext of the
contention that was strongly urged before the companyrt that a
person  landlord  having merely a life interest companyld number be
allowed to demolish the property in order to reconstruct it
as that action would per se be number bona fide for the
purposes of s. 14 1  b . it was while rejecting this
contention that the aforesaid observation was made by this
court. secondly all that the said observation indicates is
that in the view of this companyrt if a landlord were to
exercise his right to demolish his property in order to
build a new structure at the site with a view to improve his
business or lo get better return on his investment such a
step per se companyld number be regarded as mala fide on the part
of the landlord. this has numberhing to do with the question
whether while determining the bona fide requirement of the
landlord under s. 14 1   b  of the act the companydition of the
building is or is number a relevant factor. the madras decision
in mahboob badshas case  supra  merely takes the view that
the age and the dilapidated companydition of the building is number
a sine qua number for eviction under s. 14 1   b  of the act. that is far from saying that it is a totally irrelevant
factor. in fact in that case the relevancy of this factor
has in one sense been accepted for the companyrt has observed
that a decrepit building may call for immediate demolition
and without anything more the landlord companyld be said to have
satisfied the companydition of his bona fide requiring the
building for immediate demolition but according to the companyrt
the terms of s. 14 1  b  are wide enumbergh to companyer cases
where landlord bona fide requires a building for the expanse
of his own business or for legitimate purpose. in david v.
denial  supra  also the division bench of the madras high
court has proceeded on the basis that under s. 14 1   b  of
the act bona fide desire or intention on the part of the
landlord was essential and that it was number essential
requirement of the provision that the building should be old
and decrepit. but it is the alternative companytention of the
counsel for the appellant which we have accepted namely
that the age and decrepit companydition of the building is a
relevant factor amongst several others which will have to be
considered while adjudicating upon the bona fide requirement
of the landlord under that provision and might receive
greater emphasis in a case where the enactment as is the
case here companytains numberprovision for reinducting the evicted
tenant into the new building than where the companycerned
enactment has such a provision. having regard to the above discussion on the
construction of s. 14 1  b  of the act particularly in the
light of its scheme we are
1120
clearly of the view that the existing companydition of the
building far from being totally irrelevant is a vital factor
which will have to be companysidered while pronumberncing upon the
bona fide requirement of the land lord under that provision
which has to be done by having regard to all the
circumstances and since in the instant case all the companyrts
have totally ignumbered this vital factor to feel that their
conclusion on the question of bona fide requirement of the
landlord deserves to be set aside. we accordingly set aside
the said companyclusion of the companyrts below and remand the
matter back to the rent companytroller to dispose of the
landlords application in light of our judgment. in civil appeal number 1301 of 1978 and civil appeal number
1381 of 1978 which are by two tenants against the same
landlord and attempt was made by companynsel appearing for the
respondent-landlord to show that the tenants in their
written statements had made an admission that the building
which was sought to be demolished was number merely old but in
a dilapidated companydition. after going through the written
statements of the tenants in these appeals we are number
satisfied that any such clear admission has been made by the
tenants in their written statements. further in these
matters also the rent companytroller the appellate authority as
well as the high companyrt proceeded on the footing that even if
it were assumed that the building was number old number
dilapidated even then the landlord was entitled to an order
of eviction as his honest intention to demolish the building
and to reconstruct the same was backed by sufficient funds
and the steps which he took by applying for sanction of plan
for demolition and reconstruction and therefore the
applications of the landlord will have to go back to the
rent companytroller and we accordingly set aside the orders of
the high companyrt and remand the applications to tho rent
controller for disposal according to law in the light of our
judgment.