Stanley Batchelor, Kt., Acting C.J.
1. Omitting any reference to certain allegations, which are not now material, the substance of the plaint was a prayer to recover from the defendants possession of the two Survey Nos. 196 and 208 on the ground that the original owner of them was the plaintiff's brother Fakir Garbad, and that the plaintiff was both his heiress under Hindu law and his legatee under a will; that the defendants being distant cousins of Fakir Garbad took from the plaintiff a certain deed of gift, Exh. 16, in respect of these fields, but that that deed was void, and of no effect, under the terms of Section 3 of the Bhagdari and Narvadari Act (Bom. Act V of 1862). The lower Courts have decided this latter point in favour of the plaintiff, and the defendants bring the present appeal.
2. Mr. Thakor on their behalf contends that Section 3 of the Bhagdari Act does not apply to such a case as we have here, where a dispute between the plaintiff and the defendants regarding their claims to inherit to Fakir Garbad was settled by reference to arbitrators who awarded the two Nos. 1!)6 and 208 to the defendants. Admittedly the result of this award, if it were allowed to stand, would be to effect further division in a certain recognised sub-division of a Bhag. But the learned pleader's contention here is that there is nothing in the . Bhagdari Act to prohibit the taking by inheritance of an enrecognised portion of a Bhag, and if that is so, the Court should hold in this case that the properties were given to the defendants, not by alienation from any acknowledged owner, but in satisfaction of the defendants' right to succeed to Fakir Garbad
3. The learned pleader began his argument by referring to Teriblei v. Rajhabhai I.L.R. (1876) Bom. 225 a decision of Mr. Justice Melvill and Mr, Justice Kemball. It was there held that there was nothing in the Bombay Bhagdari Act which debarred a civil Court from making a decree for the partition of Narvadari land among the Bhagdars, even though the effect of that partition would cause a further division of recognised sub-divisions of Bhags. I think, however, that that is a case of which the authority ought not to be extended, for if I read rightly Mr. Justice Melvill's judgment, the Court's decision turned less upon a rigorous interpretation of Section 3 of the Bhagdari Act, than upon an assurance that the particular partition there sought by the plaintiffs would not be objected to by the revenue authorities. The Court, therefore, apparently thought that there would be no harm in giving the plaintiffs the partition for which they prayed, leaving them to run their risks with the revenue authorities. On the other hand the decision in Jethabhai v. Nathabhai I.L.R. (1904) Bom. 399 : 6 Bom. L.R. 428 appears to me directly in point here. That was a ease where one Kashibhai held a recognised sub-division in a Narva. After his death and the death of his widow, the plaintiffs alleged that they had inherited the property as heirs of Kashibhai. This led to disputes between the plaintiffs and the defendants, and ultimately a suit was brought. The suit failed. But before the period for appeal expired, the parties effected an amicable settlement which was embodied in Exh. 44 in the suit. Mr. Justice Chandavarkar, in delivering the Court's decision, says :
The first question is-whether Exh. 44 had the effect of alienating a portion of a bhag or share in the narva other than a recognised sub-division of such bhag or share and was on that Account void within the meaning of Section 5 of Bombay Act V of 1862
It is argued for the plaintiffs that Exh. 44 is not affected by that section, because it is urged, it was a compromise entered into for the settlement of a bona fide dispute between the parties, The answer to that, however, is that the result of the compromise was to dismember Survey No. 275, which comprised 4 acres and 8 gunthas, and to give to the plaintiffs 2 acres and 4 gunthas out of it. In other words, by Exh. 41 was carved out of the narwa a sub-division which did not exist at the date of the transaction as 'a recognised sub-division'. Whether we call it a compromise or a partition or by any other name, the effect of the transaction was the same. The substance and effect of the transaction is what must be looked to for the purpose of determining whether it is within the mischief which the Legislature had in view in passing the Act in question. If the transaction clearly amounts to an alienation of an unrecognised sub-division of a share in a narwa, its real nature cannot be disguised by calling it a compromise.
4. The facts there were indistinguishable in substance from the facts now before us, and the decision of the Bench in that case is binding upon us. Speaking for myself, I agree with that at decision, and it must, I think, be applied to the facts in this appeal. For those reasons, I would affirm the lower appellate Court's decree and dismiss this appeal with Costs.
5. I Agree.