John Beaumont, Kt., C.J.
1. This is an appeal from a decision of the Assistant Judge of Thana, and the point which arises is whether the respondent in the appeal acquired certain rights under Exhibits 71, 72 and 73 as held by the lower appellate Court.
2. The question arises in this way. The land with which we have to deal is khoti nisbat land in the village of Khadkawali in the District of Kolaba. In 1892 that land was mortgaged to one Gokhale by Jankibai who was the widow of the former owner. In 1906 Jankibai died and apparently the equity of redemption was then divisible in sevenths, and in 3 911 three-sevenths were sold away and we are not concerned with them; but four-sevenths were sold to the representative of Gokhale the mortgagee, by the three deeds to which I have referred and upon the construction of which this case turns, But before coming to these deeds it is necessary to mention a few more facts.
3. It appears that before the sale to Gokhale of the equity of redemption in four-sevenths of the land Gokhale had acquired certain parts of these khoti lands from the occupation tenants. Now that acquisition was made admittedly without the consent of the khot, and that being so, the khot would be entitled to forfeit the land which the tenants had sold without his consent. That, I think, is clear from the case of Hari v. Gangadhar (1916) 18 Bom. L.R. 446
4. Now the argument of Mr. Kelkar is this. He relies, first of all, on the definition of khoti nisbat and khoti khasgi lauds which is given by this Court in Ganpati Gopal v. Secretary of State I.L.R. (1924) Bom. 599 : 26 Bom. L.R. 754 That definition is as follows (p. 606):-
Khoti-nisbat lands may be held by permanent tenants who have hereditary but not transferable rights, or by noa-permanent tenants, all of whom pay to the Khot in addition to the assessment Fayda which is fixed according to the terms of the Kahulayat Khoti-khasgi lands are the private property of the Khot either by being entered in his name in the orginal survey, or by acquisition since the survey by purchase or other lawful transfer otherwise than in his capacity as Khot, or by being brought into cultivation at the Khot's own expense though entered in the original survey in the Khoti-Nisbat Khata
5. Mr. Kelkar says that when the mortgagee acquired these lands from the tenants he really made the acquisition in his capacity as khot and he thereby converted the land from khoti nisbat into khoti khasgi land, and then his contention is that khoti khasgi lands were not included in these sale-deeds. We have not got the mortgage or mortgages of 1892 before as, and we do not know what rights were conferred on the mortgagee. But I doubt very much whether his purchase of these lands from tenants had the effect of converting the lands into khoti khasgi lands. It would be unusual to find a power conferred upon a mortgagee to alter the tenure of the mortgaged property. I am inclined to think that the position which probably arose was that the mortgagee purchased these lands in his private capacity, and thereby no doubt the khot acquired a right to forfeit. It may be that during the mortgage the mortgagee as khot would have the right to forfeit the lands purchased by himself, but on redemption that right would belong to the mortgagor. That that is the right view seems rather to follow from the decision of this Court in Gopal v. Bhagirathi : AIR1918Bom152 . In that case the Court was concerned with the title to three-sevenths of the property with the remaining four-sevenths of which we are dealing in this case, which three-sevenths had been, as I have already said, sold in 1911. The Court there held that lands which had been purchased by the mortgagee from the tenants were an accretion to the mortgaged property. But it also held that the mortgagee was not entitled, as between himself and the mortgagor, to be paid anything in respect of the purchase of those lands. That, I think, must have been on the basis that the purchase of the lands operated merely as a forfeiture. If the lands by purchase had' been converted into khoti khasgi lands and the increased rights of the khot had become an accretion to the mortgaged property, it seems obvious that the moneys spent by the mortgagee in making that accretion would have been allowed to him in his accounts with the mortgagor. But if by the expenditure of money the mortgagee merely, as an incident of the expenditure, produced a forfeiture, it would be reasonable to say that he should not be allowed that expenditure. So that, I think, the Court must have been of opinion that the accretion arose merely by the operation of forfeiture, and that the lands had not been converted into khoti khasgi lands. But in my judgment it is not essential to determine that question, because, I think, that when one looks at the sale-deeds, it is quite clear that all the rights which the mortgagor had passed. Even on the assumption, which I think is wrong, that these lands had become khoti khasgi lands, I think they did pass by the deeds. All the deeds are in the same form and I will refer only to Exhibit 78 of which we have a transla-tion. It states that ' We sell to you the property as follows: The whole village of Khadkawali,' Then there is a description of the village and a reference to the mortgage and a statement that the equity of redemption had become vested in the vendors and that it had been sold for Rs. 5,400. Then the description of the property is 'The whole Watani Khoti village of Khadkawli.' Then the boundaries are given and then follow these words, 'Our Khoti village within the aforesaid boundaries including all our rights in the village such as privileges', and then other rights are specified. Then there is a statement at the end, 'In this way the Khoti village of Mouje Khadkawli and all rights including the forest' and so forth 'have been sold to you. Now there remains no right or interest of either of us, or of our Bhaubands or our estate-heirs any longeron the aforesaid property. You may enjoy this property from generation to generation in a manner you like and you may manage it as you like.' Then Mr. Kolkar relies on these words:--' The same property which already has been in your possession as a mortgagee, has been to-day sold to you and has been delivered into your possession.' In my opinion, if these lands which had been purchased from the tenants had become khoti khasgi lands, they were part of the mortgaged property in the possession of the mortgagee at the date of the sale, and as such they were included in the sale. If, on the other hand, the tenure of the land had not been changed, but what the mortgagor had was a right to forfeit the land which had been sold to the mortgagee, then, I think, that right passed under the words 'privileges' and 'rights'. It is quite clear, taking the document as a whole, that the intention of the vendors was to pass all their interests in this village and in the lands.
6. I think, therefore, that the decision of the lower appellate Court was correct and that the appeal must be dismissed with costs.
7. The Khot's rights in the village of Khadkawali were mortgaged in the year 1892. The mortgagee Gopal Vasudev Gokhale or his widow Bhagirathibai purchased the rights of certain tenants in some of the khoti nisbat lands. In the year 1911 some of the reversioners of the mortgagor representing three-sevenths of the estate sold their share in the equity of redemption to one Gopal Bhagwat and in 1912 he brought a suit for redemption. The case came up to the High Court and ultimately he was allowed that share, i.e., three-sevenths share in the whole village including those khoti nisbat lands which had been purchased by the mortgagee. The Court treated these as an accretion to the mortgage, and Bhagwat was allowed to redeem these lands without any payment. Before that suit was brought in the year 1911, the mortgagee had purchased the equity of redemption in respect of the other four-sevenths of the estate by sale deeds which are Exhibits 71, 72 and 73, After the decision of the High Court in the suit of 1912, which decision was given in the year 1918 (see Gopal v. Bhagirathi : AIR1918Bom152 the reversioners representing three-sevenths out of the said four-sevenths sold their rights in the khoti nisbat lands purchased by the mortgagee to the present plaintiff, and he brought a suit, from which the present appeal arises, to recover possession of those lands. It is a partition suit; and the reversioners claiming to be entitled in respect of the remaining ono-seventh are also parties.
8. The trial Court allowed the claim, declared the shares of the parties and ordered partition. This decision, however, was reversed by the Court of first appeal which held that the plaintiff's vendors had no interest loft to sell.
9. The only issue which we have to consider in this second appeal is the issue, whether under the sale-deeds Exhibits 71, 72 and 73 title to the plaint lands, i.e., khoti nisbat lands purchased by the mortgagee without the Knot's permission, has passed to defendant No. 1 i.e., the mortgagee, or whether the plaintiff is entitled to those lands.
10. The appellant here is the original plaintiff, and Mr. Kelkar who appears for him has admitted that he has no case unless he Can make out that the lands in question can be regarded as khoti khasgi lands. The passage in Ganpati Gopal v. Secretary of State I.L.R. (1924) Bom. 599 : 26 Bom. L.R. 754 where the distinction between khoti nisbat lands and khoti khasgi lands is explained has been read by the learned Chief Justice. According to the definition there given ' khoti khasgi lands are the private property of the khot either by being entered in his name in the original survey, (that would not apply to the lands here), or by acquisition since the survey by purchase or other lawful transfer otherwise than in his capacity as Khot, (Mr. Kelkar argues that this part of the definition covers the present case), or by being brought into cultivation at the Khot's own expense though entered in the original survey in the khoti nisbat khata.' This latter part of the definition could not apply. Mr. Ktilkar's argument is that if the rights of the occupancy tenant in khoti nisbat lands are purchased by the Khot, then the land by reason of that purchase becomes khoti khasgi. That, I think, is a doubtful proposition, but assuming it to be so for the sake of argument, these particular lands were not purchased by the khot unless we hold that the mortgagee under the terms of the mortgage stood in the shoes of the Khot so that the purchase by him was in effect a purchase by the Khot. But if the mortgagee is to he regarded as the Khot with the Khot's powers of converting khoti nisbat lands into khoti khasgi lands, his powers in that respect could only be derived from the mortgage; and it is clear from the terms of the sale deeds and is admitted that whatever rights were conveyed to the mortgagee by the mortgage were Bold to the mortgagee by the sale deeds Exhibits 71, 72 and 73.
11. We were referred in the course of the arguments to the decision in Raghunathrao v. Vasudev I.L.R. (1899) Bom. 769. In that case the Court was dealing with khoti tenures in the Ratnagiri District. They are not the same in all respects as khoti tenures in the Kolaba District, and the village of Khadkawli is in Kolaba. But the case is an authority, I think, on general principles. In the course of his judgment in that case Mr. Justice Candy said (p. 776):-
Now it must be self-evident that if a 'khoti khasgi' field may have been acquired quite apart from the khoti, then it cannot be a khoti khasgi field. If it was acquired before the acquisition of the khoti, them it would apparently be dhara. It was acquired by transfer from the occupancy tenant thereof after the acquisition of the khoti, then it would still remain khoti nisbat (as it must have been when held by the occupany tenant), and it would require the assent of the whole body of the khoti sharers to change it from khoti nisbat to khoti khasgi.
12. Elsewhere in the judgment he says (p. 775):-
It is difficult to sea how a khoti sharer's proprietary interest in such lands (he is referring to khoti khaagi lands) could over be independent of his share in the khoti vatan. Such an idea would involve a contradiction in terms, A khoti khasgi field must have some conuection with a khoti vatan.
13. I think, therefore, it may well be doubted whether the lands in question ought to be regarded as khoti khasgi lands and not rather as khoti nisbat. If they are to be regarded as khoti nisbat lands, then Mr. Kelkar admits that all rights in respect of them passed by the sale deeds in favour of the mortgagee in 1911. Even if they could be regarded as khoti khasgi, the result would be the same. As I have said, although we have not got the actual mortgage deed before us, the terms of the sale deed, which the learned Chief Justice has set out in his judgment, make it perfectly plain that whatever rights were mortgaged have been sold to the mortgagee. Therefore, whether the lands in suit are to be regarded as khoti nisbat or khoti khasgi, they must be treated as an accretion to the mortgaged property (as already held by this Court in respect of three-sevenths of the estate) and the defendant as purchaser of the equity of redemption is entitled to them. I agree that the appeal fails and should be dismissed with costs.