Norman Macleod, Kt., C.J.
1. The plaintiffs sued for a declaration that the order of commutation of Kulkarniki service in regard to five villages in the Khauapur Taluka of the Belgaum District was ultra vires of the Collector and was not binding on them.
2. The defendant, the Secretary of State, claimed that the suit was barred under paras 2 and 3 of Section 4 (a) Bombay Revenue Jurisdiction Act. that the order of commutation of the Kulkiirniki service was not ultra vire of the Collector; that Laxmibai. at whose instance the order was passed was in 1915 the representative of the persons beneficially interested in the watan and was the duly registered representative watandar, and so was a 'holder' as defined in clause 4 of Section 15 of Bombay Act III of 1874, and that the settlement made with her was therefore legal and binding on her successors, the plaintiffs, under clause 3 of that section.
3. One Bhikaji Laxman was the sole representative Kulkarniki watandar of seventeen villages, including the five mentioned in the plaint, and his widow Laxmibai had been registered as the sole representative Watandar after Bhikaji's death. On September 9, 1878, Laxmibai adopted plaintiff's father Laxman, and two days later passed the adoption deed, Exhibit 19. Lax-man's natural father Kriahnaji on the same date, September 11, passed an agreement that Laxmibai should enjoy the right of Kulkarniki service in the live plaint villages for the term of her natural life for maintenance.
4. Thereafter disputes arose between Laxmibai and Laxman which resulted in a suit being tiled, No. 10 of 1896, in which Laxman got a decree that his adoption was valid but Laxmibai's rights under the agreement were preserved. Laxman's name was then entered in the register as watandar for twelve out of the seventeen villages, but Laxmibai'u name was retained for the five plaint villages. In 1913 Laxman died leaving a widow Sitabai, and two minor sons, the present plaintiffs. On January 24, 1915, Laxmibai applied to the Collector to commute the right of Kulkarniki service with respect to the plaint villages. On that application the commutation order was passed by the Collector, Laxmibai died on November 25, 1917, and thereafter Sitabai as plaintiffs' guardian asked the Assistant Collector to cancel the commutation order. This was refused, and the refusal was confirmed by an order of the Commissioner, and also by Government. Sitabai then gave notice that she would file a suit. Eventually the present suit was filed on September 16, 1921.
5. The District Judge has dismissed the plaintiff's suit on the ground that it was barred by Section 4 (a) of the Bombay Revenue Jurisdiction Act. Assuming that it is a suit to obtain a declaration that the order of the Collector was ultra vires, and therefore null and void and not birding on the plaintiffs, the question is whether the plaintiffs are not entitled to prove certain facts which would justify the Court in granting them the declaration asked for in spite of the provisions of Section 4 (a) of the Bombay Revenue Jurisdiction Act.
6. In Maganchand v. Vithalrav I.L.R.(1912) 37 Bom. 37 14 Bom. L.R. 793. L.R. 59 the Court found that the Assistant Collector's order, purporting to be made under Section 11 of the Hereditary Offices Act, was unauthorized, and therefore held that that order was no bar to the maintenance of the plaintiff's suit. Relying on that decision, two points have been taken by the appellants' counsel before us:-(1) that Laxmibai was not the 'holder' of the watan within the meaning of that term in Section 15 of Bombay Act III of 1874; and (2) that the provisions of Section 73 of the Act had not been complied with, and that, therefore, the order passed by the Collector directing commutation of the watan was not a proper order, so that the provisions of Section 4 (a) of the Revenue Jurisdiction Act did not apply. It does not appear that when Act III of 1874 was passed, it was contemplated that the widow of a watandar could succeed to him as watandar. 'Watandar,' according to Section 4 of that Act, means a person having an hereditary interest in a watan, It includes a person holding watan property acquired by him before the introduction of the 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 conditions specified in Sections 33 to 35. 'Representative Watandar' means a watandar registered by the Collector under Section 25 as having a right to perform the duties of an hereditary office. Although Laxmibai was registered under Section 25 as representative watandar, it does not follow that she was a watandur within the meaning of that term in Section 4, which includes for the purposes of the section any sole owner or the whole number of joint owners or any person dealt with as representative of the person beneficially interested or entered as such in the Government record at the time of the settlement, and it does not follow that she was a 'holder' within the meaning of that word in Section 15 of the Act. By Section 2 of Bombay Act V of 1886 'Every female member of a watan family other than the widow, mother or paternal grandmother of the last male owner, and every person claiming through a female, shall be postponed in the order of succession to any watan, or part thereof or interest therein, devolving by inheritance after the date the Act comes into force, to every male member of the family qualified to inherit such watan, or part thereof or 1 interest therein. The interest of a widow, mother or paternal grandmother in any watan or part thereof shall be for the term of her life or until her marriage only.' Therefore the interest of the widow in a watan is to be compared to the interest of a Hindu widow in her husband's estate. I doubt whether it was ever intended that the Government should be able to treat the widow as a watandar for the purposes of sanctioning the commutation of the watan service. In my opinion a widow holding an interest in watan property for the term of her life or until her marriage is net a 'holder' within the meaning of that term in Section 15 of the Act III of 1874.
7. It would follow, therefore, that the Collector negotiating with a person who was not a holder of the watan was not authorised to pass a commutation order under Section 15 of the Act and the decision in Maganvchand v. Vithalrav I.L.R.(1912) 37 Bom. 3714 Bom. L.R. 793 is applicable to this suit.
8. A further objection arises from the fact that the Collector had not complied with the provisions of Section 16 of the Act. That section is imperative and enacts that 'No order under Part III directing commutation of a watan shall be passed, unless after an investigation recorded in writing and a proper opportunity afforded for the hearing of claims and the production of evidence. In each such investigation, the Collector or other officer shall record his decision with the reasons therefor in his own handwriting.' It is admitted that there is no record of any investigation having been made, or that any opportunity had been given to the other members of the watan family of being heard, or that any reasons were recorded by the Collector for his decision. The learned Judge considered that as the claimants did not take this point in the appeals to the revenue authorities, and as it was not set out specifically in the plaint, he was entitled to consider that the Collector had duly complied with the provisions of Section 73. Although it may be said that the plaintiffs did not specifically rely upon this fact in asking the Court to hold that the order was ultra vires, still in para 5 of the plaint it is stated that the Collector made a settlement of commutation some time in 1915 without giving notice to the minor plaintiffs or their guardian, so that the question whether the Collector had complied with the provisions of Section 73 was in issue.
9. I think, therefore, that as the provisions of Section 73 had not been complied with, any order of! commutation passed by the Collector would not be a valid order, so that on this ground also the suit to set it aside will not be barred under Section 4 (a) of the Revenue Jurisdiction Act. In my opinion, therefore, the plaintiffs are entitled to succeed, and the appeal should be allowed, and the declaration which the plaintiffs asked for decreed with costs in both Courts.
10. I agree.