L.H. Jenkins, C.J.
1. The plaintiff has brought this suit for a declaration of his right as adopted son of Kondo Narayan Deshpande arid his widow Savitribai and to recover possession of the plaint lands. In the lower Court he has bean successful, and the defendant has appealed.
2. The points urged before us are: first, that the adoption is not proved; secondly, that, if proved, it is invalid; and thirdly, that in any case, it is ineffective to create a title in the plaintiff to so much of the plaint lands as are vatan property. It as the third of these points alone that calls for serious discussion, for Mr. Branson has in effect) conceded (after stating the facts) that the theory of Savitribai's being under sutak (which was relied on as a circumstance both invalidating and making improbable the alleged adoption) could not be supported on the evidence, inasmuch as the relationship that would impose sutak had not been proved. On a consideration of the facts I have no hesitation in affirming the decision of the Subordinate Judge as to the fact and validity of the adoption. Therefore, I at once proceed to the third and more important point.
3. The argument in favour of this line of defence is principally rested on the terms of the sanad settling the vatan property, which ran as follows:
Whereas in the zilla of Satara certain lands and cash allowances are entered in the Government accounts of the year 1886-87 as held on service tenure (here follow the description of lands and cash allowances), and whereas the holders thereof have agreed to pay to Government a fixed annual payment in lieu of service.
It is hereby declared, that the said lands and cash allowances shall be continued hereditarily by the British Government on the following conditions: that is to say, that the said holders and heirs shall continue faithful subjects of the British Government, and shall render to the same the following fixed yearly dues.... In consideration of the fulfilment of which conditions:
1st--The said lands and xash allowances shall be continued without demand of service, and without increase of land-tax over the above fixed amount, and without objection or question on the part of Government as to the rights pf any holders thereof, so long as any male heir to the vatan, lineal, collateral or adopted, within the limits of the Vatandar family, shall be in existence.
2nd--No nazrana or other demand on the part of Government will be imposed on account of the succession of heirs, lineal, collateral, or adopted within the limits of the Vatandar family, and the permission to make such adoptions need not hereafter be obtained from Government.
3rd--When all the sharers of the vatan agree to request it, then the general privilege of adopting at any time any person (without restriction as to family) who can be legally adopted, will be granted by Government to the vatan on the payment from that time forward in perpetuity of an annual nazrana of one anna in each rupee of the above total emoluments of the vatan.
4. The third clause, it is urged, is a bar to an adoption by a single Vatandar without both the request of the other Vatandare and the consent of Government.
5. But to appreciate the force of the words used-in this sanad, one must see what in this respect was the position prior to the Gordon Settlement (for this sanad was issued under the scheme familar under that name) of Vatandars. The earliest British legislation on the subject of vatans is to be found in Regulation XVI of 1827, Section 20. Prior to that a Vatandar 's power of alienation appears to have been unfettered, at least so far as his co-Vatandars were concerned. According to Mr. Steele, however, the consent of the Sirkar and of the pergunnah Vatandars was necessary to adoptions by Vatandars. Nazar, too, was paid to the Native Government on occasions of granting permission (Steele's Law and Custom, 183). This view apparently is based on the information received from the Poona castes (see page 386).
6. How far, however, the consent of the Government and the. kinsmen ever was requisite for a legal adoption is at least doubtful. Thus, in the Dattaka Mimansa it is laid down that kinsmen and relations should be 'earnestly invited,' and notice to the king is enjoined (Section V, pl. 8 and 42), but it is clear that the failure to observe, these behests would not now invalidate the adoption: for 'the invitation of kinsmen and the others is for the sake of their witnessing: in the same manner as the invitation of the king' (ibid, pl. 9). It would seem that the participation of the tking and the kinsmen was evidentiary and not essential. The cited passages from the Dattaka Mimansa make it probable that the usual practice was to act in accordance with what is there enjoined, and it may he that the information received from the castes merely recorded that which was customary in practice. Be that however as it may, it was determined as far back as 1870 See Ramchandra v. Nanaji (1870) 7 B.H.C.R. 26 by a Division Bench of this Court 'that a formal adoption should not be set aside because it has not received the sanction of the ruling power, and that there are no good grounds for the argument that a distinction should be made when the property to be inherited is of the nature of a vatan.' This was followed in Narhar Govind Kulkarni v. Narayan Vithal (1877) 1 Bom. 607, where the objection urged against the adoption was that it was invalid, inasmuch as it had been strictly prohibited by the Government. Sir Michael Westropp, in delivering the judgment of the Court said (p. 609):
We have here simply to deal with the office of a Kulkarni and its appendant rights or vatan. No authority either in a text-book of Hindu Law nor in the reports has been cited to show that the sanction of Government to an adoption by a Kulkami or his widow or by a coparcener in a Kulkarniship or his widow is necessary to give it validity or that Government has, any right to prohibit or otherwise intervene in such an adoption. It has been argued for the appellant (the defendant) that Government ought to have a voice in such a matter in order to insure to itself a succession of suitable hereditary officers. No such right of intervention in adoption was claimed for Government by Act XI of 1848 when, if such a right existed, we might fairly expect to find that it would have been recognised; and Sections 83 and 34 of Bombay Act HI of 1874 are inconsistent with the existence of any such right. The provisions of these sections seem to be in accord with the passage in Steele s Hindu Law, page 61, para. XL, 1st edition; page 45, para. XL, 2nd edition, where it is said: 'It is enjoined that notice of an adoption should be given to the relations within the sagotra sapinda and to the Raja, though no provision appears, in case of their disapprobation, even in adoption by widows.' Those Acts made sufficient provision for securing to Government the 'services of competent officiators; so that no such objection, in that respect, as suggested by the appellant's pleader, can arise. In the case of Ramchandra v. Navaji 7 Bom. H.C. 26 A.C.J. the defence was that the adoption had been disallowed by Government; but that defence failed in the High Court. That, like the present case, related to vatan appendant to the office of Kulkarni.
7. The decisions, it is true, only deal expressly with the Question whether the Government's assent is required, but I find from the paper book in appeal No. 313 of 1876 that the defendant pleaded that the adoptive mother was not justified in adopting without the consent of her bhaubands. In my opinion the consent of the bhaubands was as little necessary to the validity of an adoption among Vatandars as under the General Hindu Law.
8. Such, then, being the law apart from the scheme of the Gordon Settlement, has the sanad in this case framed in accordance with that settlement rendered the consent of the Government and the kinsmen necessary? This is a question of construction of the sanad which I have read in an earlier part of my judgment.
9. In construing this document it must be borne in mind that it relates to the whole vatan and not merely to a takshim in the vatan. Looking then to the terms of the sanad, nowhere is any express prohibition imposed on adoption, whether the person proposed for adoption was or was not a member of the Vatandar family; but while in the second clause there is express provision that no nazrana shall be chargeable in respect of the adoption of a member of that family, the third clause provides for the recognition by Government of a general power to adopt without restriction as to family on the entire body of Vatandars accepting liability to a perpetual nazrana in consideration thereof, and applying collectively for the purpose. There has been some discussion before us as to how the words 'lineal, collateral or adopted, within the limits of the Vatandar's family,' should be read; for the punctuation of those words in the first clause agrees neither with the phraseology of the vernacular, nor with the punctuation in the second paragraph, while at the same time it is only by adherence to the punctuation in the first, clause that tautology is escaped. I do not, however, think it necessary in reference to this to do more than express surprise that, in a document of this class, such want of care should have been shown; and I so think because, whichever way the words be read, I fail to see that the document can or does create in favour of kinsmen a right to object that would not otherwise exist. In my opinion, therefore, the adoption in this case is valid and affected the succession to the vatan lands to the extent that the plaintiff has become entitled to succeed thereto as against the other Vatandars.
10. But in so holding I do not mean to say that the tenure of the lands would be prolonged or the rights of Government would be curtailed in case the body of Vatandars were to die out and the plaintiff or his successors were alone left to claim the vatan lands. As to this I would repeat what was said in Ramchandar's case (1870) 7 Bom. H.C. 26. 'We consider that the result of the suit will not affect the interests of Government, and that we should, therefore, confine ourselves to the point at issue between the parties who are before the Court.'
11. The decree will be confirmed with costs.
12. It may perhaps be worthy of notice that lands held for service were, both by Clause 2 of Section 1 of Bombay Act II of 1863 and by Clause 2 of Section 2 of Bombay Act VII of 1863, expressly excepted from the category of holdings in respect of which under those enactments, an indefeasible, heritable and transferable title was claimable on acceptance, by the holders for the time being, of the terms prescribed.
13. By Clause 3 of Section 2 of the latter Act, lands held for service were declared resumable or continuable under such rules as Government might think proper from time to time to lay down. And under Section 16 of Bombay Act II of 1863, as under Section 32 of Bombay Act VII of 1863, the phrase, 'lands held for service' was declared applicable to all lands granted, held or continued nominally for the performance of service whether performed or not, or partly in consideration of past and partly for the performance of prospective service; but the phrase was not to include lands granted solely in consideration of past services, i.e., the heritable and transferable estate was not claimable as of right in respect of lands pro servitiis impendendis or pro servitiis impensis et impendendis. But the question whether any particular lands fell within this class or not, was left by both the sections to the decision of Government.
14. The result appears to be that so far as lands held pro servitiis impendendis or pro servitiis impensis et impendendis were concerned, Government could determine the conditions on which they should be continuable or determinable. But while reserving this power to Government, the Legislature seems to have left the devolution of interests among the members to whom they were continuable, to be determined, by the ordinary law governing the community to which those members belonged. If that ordinary law recognized an unrestricted right of adoption, the power given to Government of deciding as to the conditions of continuance, had no operation on that right so long as those conditions 6 of continuance remained satisfied. And reading the sanad in the light of the provisions of law above referred to, it would appear that the clause relating to the unrestricted right of adoption oould have bad reference only to the rules determining the continuance, and not to the principles of devolution that were to regulate the interests in question.
15. While the rights of individuals were left untouched by the sanads, Government offered to relax the rules as to the continuance of the collective rights, on the whole body, undertaking, thenceforward in perpetuity, a liability for an additional payment under the name of nazrana, as consideration (not for any modification of their rights inter se, which were settled by the law whereto they were subject, and not by Government, but) for an enlargement of the conditions to which under pre-existing rules or practice Government had theretofore subjected the continuance of lands held for service.
16. The sanads, therefore, appear only to determine what Government had power to determine--the conditions of continuance or resumption and the terms on which such conditions would on application and payment be enlarged; but, so long as those conditions were fulfilled, they no more affected the right which adoption might confer than the right which survivorship or inheritance might confer under the law applicable to the holders.