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Trimbak Ramchandra Pandit Vs. Shekh Gulam Zilani Waiker - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 537 of 1907
Judge
Reported in(1910)12BOMLR208
AppellantTrimbak Ramchandra Pandit
RespondentShekh Gulam Zilani Waiker
DispositionAppeal allowed
Excerpt:
.....142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - the nature of the estate appears clearly from the judgment of the privy council in shekh sultan sani v. ' on the 28th november 1873, the agent reported that shekh ajmodin was not the legitimate successor to the headship of the family under mahomedan law as khan mahomed had left a daughter and she had sons who were nearer the head of the family than shekh ajmodin, but he recommended that any property the succession to which government had power to regulate should go to ajmodin......of the estate appears clearly from the judgment of the privy council in shekh sultan sani v. shekh ajmodin ilr (1891) 17 bom. 431. it is there stated that in consequence of the advice of mr. elphinstone the court of directors, in a despatch of the 26th october 1842, directed that the jaghir of shekh mira (being the estate in question) ' already restored to the son of the last holder but for life only must be considered hereditary'. ' it remained for government,' say their lordships, ' when necessity should arise to determine to whom it should regrant or in whom it should recognise a right of succession to the jaghirs then possessed by khan mahomed'. khan mahomed died on the 31st of december 1872. it then became necessary to determine to whom his saranjam should be granted. amongst.....
Judgment:

Basil Scott, Kt., C.J.

1. This is a suit in ejectment brought by an Inamdar against persons claiming to hold as Mirasi or permanent tenants.

2. It was conceded in the lower Court that the ' Inam ' rights in the lands in suit appertain to a Saranjam held on political tenure and that the present incumbent of the Saranjam is the plaintiff. The defendants, however, contend that the Inam rights are merely the right to receive the royal share of the revenue and that the proprietary rights in the soil were prior to the date of the Inam grant vested in the grantee of the Inam, have descended to his heirs independently of the Inam, and have furnished the permanent lease-hold or Mirasi interest by virtue of which the defendants resist the plaintiffs claim to eject them. The lower appellate Court held it proved that the Saranjam was created prior to 1785 and that the lands in suit, at any rate since that year, came to be considered as appertaining to the Saranjam. As the lease under which the defendants claim dates only from 1848, the finding of fact of the lower Court disposes of the point.

3. If the question were, as urged by counsel for the defendants, a mixed question of fact and law it must, nevertheless, be decided against the defendants. The contention involves the denial of the title to the reversionary rights in the lands in the defendants' occupation of the successive Saranjamdars approved by Government. The defendants have, however, been continuously paying rent for their holding to the successive Saranjamdars, including the plaintiff. They are thus estopped by attornment from disputing the plaintiff's title. See In re Vasitdev v. Babaji (1871) A.C.J. 175 and Doe dem. Marlow v. Wiggins (1843) 4 Q.B. 367. In so far as the defendants' case depends upon the construction of the Sanad of 1785, the decision of the lower Court rests upon the authority of the judgment of the Privy Council in favour of Sheikh Ajrnodin, the Saranjamdar who succeeded the lessor, against Shekh Sultan Sani, their lessor's devisee, with reference to the lands in suit. A reference to the report of the proceedings in that litigation will show that the lands in suit were held not to be the private heritable and devisable property of the defendants' lessor but to be held on political tenure as part of the Saranjain. See Shekh Sultan Sani v. Shekh Ajtnodin ILR(1891) 17 Bom. 431.

4. The defendants' second line of defence was that the plaintiff's right is barred by the adverse possession of the defendants for upwards of twelve years under a claim to hold as permanent tenants. It is urged that time will run against the successive Saranjamdars for the same reasons as it was held to run against successive Watandars in Radhabai v. Anantrav ILR (1885) 9 Bom. 198. This defence involves an examination of the nature of the particular estate with which we are concerned. The nature of the estate appears clearly from the judgment of the Privy Council in Shekh Sultan Sani v. Shekh Ajmodin ILR (1891) 17 Bom. 431. It is there stated that in consequence of the advice of Mr. Elphinstone the Court of Directors, in a despatch of the 26th October 1842, directed that the Jaghir of Shekh Mira (being the estate in question) ' already restored to the son of the last holder but for life only must be considered hereditary'. ' It remained for Government,' say their Lordships, ' when necessity should arise to determine to whom it should regrant or in whom it should recognise a right of succession to the Jaghirs then possessed by Khan Mahomed'. Khan Mahomed died on the 31st of December 1872. It then became necessary to determine to whom his Saranjam should be granted. Amongst the candidates was Shekh Ajmodin, the respondent, a descendant of Shekh Abdul Khan, the half brother of Khan Mahomed. This led to a Resolution by the Government, dated the 23rd of October 1873, ' that the Agent for Sardars should be requested to investigate judicially and after due notice to all parties concerned whether Shekh Ajmodin is under Mahomedan law the legitimate successor to the headship of the family either by adoption or descent.' On the 28th November 1873, the Agent reported that Shekh Ajmodin was not the legitimate successor to the headship of the family under Mahomedan law as Khan Mahomed had left a daughter and she had sons who were nearer the head of the family than Shekh Ajmodin, but he recommended that any property the succession to which Government had power to regulate should go to Ajmodin. On the 27th March 1874, the Government confirmed the Agent's report in the following terms :-

RESOLUTION-The proceedings of the Agent for Sardars are approved and for the reasons given by Biron Linpent Shekh Ajmodin should be recognised as the head of the family to whom the Saranj am should be continued. To avoid disputes, the allowances for maintenance of the widows of the deceased Shekh Khan Mahomed and Shekh Abdul Kadar and of any others who have a claim for maintenance on the estate should be settled by order of Government after receiving the recommendation of the Agent. The allowances now paid to Shekh Eakmodeen and Rahimanbee under Government letter of 28th March 1861 should be continued.

5. This arrangement having been approved by the Secretary of State, the whole of the Jaghir and Inam incomes were made over to Shekh Ajmodin, and the agent and the administrators of the estate which had been taken into- the hands of Government called on all persons to acknowledge him as owner.

6. Their Lordships conclude their judgment as follows :-

Their Lordships are of opinion that no distinction can be drawn between the Inam and the other property in question. As has been pointed out, the Sanad of 1785 included the Inam villages and lands with the Mokasa as parts of one Saranjam for the support of troops. The effect of the treaty of the 3rd July 1820 was to continue to Shekh Mira the whole of the property including the Inam as a personal and military jaghir. This was done by the Government on political considerations, and the tenure thereby created was political. This was the view taken by the Government in 1876 when it adopted the report of the Alienation Settlement Officer that the whole estate intact Saranjam and Inam as restored after the war under the treaty of 3rd July 1820 is continuable as a guaranteed estate to the adopted son (Ajmodin) as the head of the family.

Their Lordships, therefore, concur in the opinion expressed by the Governor in Council that a mixed estate of Saranjam and Inam was granted by the treaty of July 1820 to be held on the same political tenure and passed intact to the person whom the Government might recognise as the head of the family.

7. The estate then is a guaranteed hereditary estate. The right to succession is in the family, but it is subject to regulation by Government. When there is a delay in the choice of a successor to the last incumbent, Government collects the revenues for the next holder. The holder has no power of testamentary alienation and presumbly has no greater powers with regard to the estate than the holders of other Saranjam estates which are, as a general rule, inalienable and impartible. See Radhabai v. Anantra ILR (1885) 9 Bom. 214, Note (8)

8. It was conceded that a Saranjamdar would not, except possibly for necessity, have power to create a Mirasi lease to enure beyond his lifetime, and the defendants could not, after Khan Mahomed's death, successfully base their possession upon the lease of 1848. The defendants' contention was disposed of by the lower Court on the ground that a successor takes the Saranjam by virtue of the gift of the ruling power and not by right of inheritance or any other right, and that as the plaintiff succeeded in 1895 and the suit was riled in 1904, the claim is not time-barred. It is clear from what has been said above that the lower Court did not rightly apprehend the nature of this particular estate. In its incidents it resembles Ghatwali estates of the kind investigated by the Privy Council in Rajah Niltnoni Singh v. Bakranath Singh , estates which are not transferable nor divisible, which are hereditary though not governed by the ordinary rules of inheritance, and which are subject to the condition of the Government's approval of the heir. Against the successive holders of such estates rights may be acquired by adverse possession : see Tefaiit Ram Chander Singh v. Srimati Madho Kumari (1885) L.R. 12 IndAp 197. In that case it was held that time would begin to run not from the commencement of the tenancy of persons claiming to hold as permanent tenants, but from the date when the claims of the parties became openly and undoubtedly adverse. In the present case it is shown that at least from 1889, the defendants openly asserted their claim to hold as permanent Mirasi tenants. As this was more than 12 years before suit, the defendants have acquired a title to the limited interest claimed by them and cannot be ejected.

9. We, therefore, allow the appeal. We set aside the decree of the lower appellate Court and dismiss the suit with costs throughout.


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