John Beaumont, Kt., C.J.
1. This is an appeal by the plaintiff against a decision of Secretary the First Class Subordinate Judge of Bijapur. The plaintiff in the suit claims of to be the watandar of certain immovable properties described in Schedules A, B and C, and of a cash allowance described in Schedule D to the plaint, and he asks for a declaration that an order of Government of August 16, 1928, resuming possession of those properties was illegal and ultra vires, and for consequential relief.
2. The question admittedly turns on the construction of a sanad granted by Government on February 8, 1872; but in order to construe that sanad it is necessary to know the circumstances which existed at the date when it was granted. The learned Judge in the Court below dealt with the history of the plaintiff's claim in much detail, and we have been referred to a large number of documents on the record. But in my opinion it is not necessary to discuss the earlier history of the plaintiff's claim in any detail. It is, I think, sufficient to say that in my opinion it is clearly established that the right of the plaintiff's family to act as desai in respect of these various lands was to some extent recognised by the Mahomedan Kings of Bijapur, afterwards by the Government of the Peshwas, and ultimately by the East India Company. The ancestors of the plaintiff claimed to have held these lands without payment of any assessment, but they were unable to produce any documentary evidence in support of their claim. Their ownership of the property had at times passed through various vicissitudes, and it was alleged that any sanad granted to them had been lost.
3. In 1845 one Venkatrao, who was the father of Bhimrao, the adoptive father of the plaintiff, and was the then head of the family, claimed to be entitled to these properties, and he made an application that his name should be entered in Government records; but he died in the year 1851, and after his death Government challenged the right of his son Bhimrao, who was a minor, and his widow Sheshawwa, who was managing the properties, to the privileges claimed, and in 1852 the lands in Schedule A, which consisted of three villages, were attached by Government, and an enquiry into the rights of Venkatrao's heirs in respect of these properties in Schedule A was instituted before the Inam Commissioner. In 1858 the Inam Commissioner made three separate orders in respect of these three villages which were all in the same form. The orders were that according to the evidence of the Hoozoor Records these villages could not be properly regarded as belonging to the desai watan or in any light other than of Government villages during the lifetime of Venkatrao, and as he had died since the investigation started, the Inam Commissioner recorded his decision that the three villages should be at once resumed and assessed as khalsat.
4. Now a question arises, which is of some relevance, as to what the order of the Inam Commissioner, that the villages should be resumed and assessed as khalsat, really amounted to. It is contended by the learned Government Pleader on behalf of respondent No. 1 that the order meant that the soil of the villages should be resumed by Government. On the other hand, it is contended by the appellant that by the order it was meant only that the privilege claimed by the appellant of holding these villages free from liability to assessment was resumed.
5. In connection with that question it is necessary to consider what were the powers of the Inam Commissioner. He was appointed under Act XI of 1852 which recites that in the districts therein mentioned in the Bombay Presidency, claims against Government on account of inams and other estates wholly or partially exempt from payment of land revenue are excepted from the cognizance of the ordinary civil Courts, and it is desirable that the said claims should be tried and determined without further delay. Then a Commissioner is appointed to determine these claims, and his duties are defined in Schedule A to the Act.
Section 4 provides :-
In the adjudication of claims to exempt lands or interests therein, the titles. of claimants shall be determined by the rules in Schedule B annexed to this Act.
6. Schedule B provides as to what is to be done in the case of holdings which have been continuous, and then in the sixth clause of Schedule B it is provided that :
Land held as wholly exempt from payment of revenue, or on partial assessment, the possession of which is not continuable under the preceding rules, is to be resumed on the demise of the incumbent.
7. I have no doubt that the Commissioner acted under that rule, and held that the claim of Venkatrao and his predecessors had not been continuous. The learned Government Pleader contends that the language of Clause (6) of Schedule B is perfectly clear, and entitles Government to resume possession of the soil of the land; but I do not think that is so. It is clear from the whole terms of the Act that what had to be considered were claims made to-hold lands free from, or partially free from, assessment, and in my judgment all that the Commissioner can do under the Act is to direct resumption by Government of the claim to exemption from assessment. That has been expressly held to be the meaning and effect of the Act in two cases which. are binding upon this Court, the case of Vishnu Trimbak v. Tatia Pant (1863) 1 B.H.C.R. 22 and the case of Gangabai v. Kalapa Dari Mukrya I.L.R. (1885) Bom. 419. It is clear from the report of the first mentioned case that the resumption of possession considered in that case was made under the Inam Act of 1852, and I have no doubt that the resumption in the second case was also made under that Act, although the fact is not expressly mentioned in the report.
8. In considering the meaning of Clause (6) of Schedule B, one has also to notice the provisions of Clause (11) which provides that-
Any of these rules may be relaxed in favour of claimants under instructions from the Governor of Bombay in Council, in whom shall be vested the power of interpreting the precise meaning of any of the rules respecting which a question, may arise.
There cannot, in my opinion, be the slightest doubt that Government have construed those rules as entitling them only to resumption of possession of the privilege claimed by the inamdar, and not of possession of the soil. That is clear from the Government Resolution of 1854 referred to in Vishnu Trimbak v. Tatia Pant and from a note annexed to a report from, Colonel Etheridge, Inam Commissioner, to the Chief Secretary to Government, dated April 21, 1873. The note is to paragraph 8 of that Report and says that 'the Governor in Council does not conceive it probable that any of the local officers can so misread either Act XI of 1852 or Regulation XVII of 1827 as to suppose that interference with actual possession is allowable.' It is, therefore, clear that Government have never considered that under the Inam Act they were entitled to interfere with actual possession. All that they could deal with was the claim of certain persons to hold lands free from the ordinary obligation to contribute to Government revenues.
9. After the Inam Commissioner's orders of 1858, an appeal against them was lodged with Government on behalf of Bhimrao, and ultimately that appeal, and many other appeals against decisions of the Inam Commissioner, were compromised. Government made certain offers to inamdars which for the most part were accepted. On August 4, 1863, according to exhibit 73, Bhimrao by his mother accepted an offer to pay four annas in the rupee on the total assessment. He was offered by Government the right to take in adoption a person outside the watan family, if he would pay another anna in the rupee; but it is admitted on this appeal that that option was not exercised.
10. It is contended by the appellant that that settlement of August 4, 1863, only applied to the lands in Schedules B and C which had not been attached, and that the settlement in respect of the lands in Schedule A was arrived at on March 16, 1864, and was a settlement on the terms of paying five annas in the rupee. The learned Government Pleader contends that the settlement of August 4, 1863, covered all the lands. I do not think it very material which view is right. At any rate, there is no question that a settlement was arrived at which covered all the lands in the three Schedules, and provided for the payment by the inamdar of certain fixed dues. I should have mentioned, though I do not think it very material, that before the settlement was arrived at the attachment of the villages in Schedule A had been released by Government, presumably on the basis that a settlement was about to be arrived at.
11. It was in those circumstances that the sanad of 1872 came to be granted, and it is not disputed that the sanad was intended to give effect to the settlement arrived at between Government and Bhimrao acting by his mother.
12. The sanad has not been completely translated, but the relevant paragraphs have been translated in exhibit No. 84 in First Appeal No. 177 of 1931. The sanad describes the lands and cash allowances to which it applies, and then it provides in the first paragraph as follows :-
Persons who enjoy the said lands and cash allowances have agreed to pay to Government a fixed sum every year in lieu of service. Therefore it is (hereby) declared as follows : The said lands and cash allowances shall be continued in lineal succession from generation to generation by the British Government under the following conditions. Those conditions are : The said persons in enjoyment and their heirs shall be obedient to the Britisih Government and act faithfully and honestly and shall go on paying to Government permanently, every year amounts as mentioned below.
Then the amount of the agreed assessment is stated.
13. Now if I am right in thinking that the only settlement arrived at between Government and the inamdar was as to the right to hold the lands free from full assessment, and that the settlement arrived at, and the action Government had taken before such settlement, had no reference to the right to occupy the soil, then it seems to me that we must in those circumstances construe the sanad as dealing only with the right to hold the lands free from full assessment. The language seems to be appropriate to such a construction. It does not purport to be a grant of the right of the lands. It only provides that the lands and cash allowances shall be continued. That is consistent with the view that what is continued is the right to hold free from full assessment and that right is continued upon the conditions specified which include the payment of a fixed duty. If that is the correct interpretation of the first paragraph of the sanad, then if either of the conditions of the grant, i.e., the condition of being faithful to Government, and the condition of paying a fixed duty, is broken, the grant would terminate, and Government would be entitled to claim full assessment on the lands, but any right of occupation which the inamdar possessed apart from the sanad would remain untouched. If, however, I am wrong in that view, and if the learned Government Pleader is right in his contention that the sanad covers the right to the soil, it would follow that the soil is granted to the inamdar so long as the two conditions, which I have referred to, are performed, and there is no suggestion that either of those conditions has been broken. I doubt if the words 'in lineal succession from generation to generation' are to be construed in their literal sense as meaning descent from father to son. I think they really are equivalent to' continued to the owner and his heirs 'because the conditions imposed are not upon lineal heirs but were imposed upon heirs generally. But, however that may be, the plaintiff, as I will mention in a moment, is the adopted son of Bhimrao, and he is, therefore, in my opinion, clearly a lineal descendant of Bhimrao. Under Hindu law an adopted son is in exactly the same position, with one or two minor exceptions not necessary to notice, as a natural born son, and I have no doubt that an adopted son of a Hindu can properly be described as succeeding in lineal succession. Possession cannot, therefore, be claimed by Government under the first paragraph of the sanad.
14. The ground on which Government claimed to resume possession of the land dealt with by the sanad arises under the second clause of the sanad which is numbered No. '1' and which I will refer to as 'Proviso I.' It is in these terms :
So long as there are male heirs, i.e., direct or indirect of the watan or so long as there is any person adopted in the watandar family, the said lands and cash allowances shall be continued by Government without taking service and without demanding anything more than the above-mentioned fixed amounts and without any objection or question as to the rights of the persons in enjoyment.
Now it is claimed by Government that there are no male heirs of the watan, and that there is no person adopted in the watandar family, and I will assume that to be so, and I will assume further, in considering the construction of proviso I, that the sanad deals with rights in the soil. Even on those two assumptions I am unable to accept the view of the lower Court that Government are entitled to resume possession of the lands under proviso I. That clause is not a clause of re-entry. What it provides is that so long as there are the requisite heirs, the lands and cash allowances shall be continued by Government without taking service and without demanding enhanced assessment. Stating the clause in its converse form it comes to no more than this : That whilst there is no requisite heir to the watandar, Government are entitled to insist on service or further assessment. That seems to me the highest at which the rights of Government can be put. I can see no ground under that clause to justify Government in: resuming possession of the property, the subject-matter of the grant.
15. Bhimrao adopted the plaintiff, who was his daughter's son, in the year 1909, and he died in the year 1918. Subsequently Government passed orders resuming possession of the lands and cash allowance in suit. Defendants Nos. 3 and 4 are collateral heirs of Bhimrao, and they are within the original watandar family. It is contended by Mr. Desai for the appellant that in any case Government cannot re-enter at the present time, because there are heirs of the watan. The answer made by Government is, that the sanad constitutes a fresh grant of the watan, and that defendants Nos. 3 and 4 are not heirs of Bhimrao the first watandar. I do not think it necessary to decide which of those two views is right. The claim of the plaintiff to be entitled to the watan as the adopted son of Bhimrao has been disputed by defendants Nos. 3 and 4, but so far as relates to their claim this Court is bound by the decision in Balaji v. Datto I.L.R. (1902) Bom. 75 : 4 Bom. L.R. 762, which establishes that the adoption by a watandar without the consent of the Government or of the other members of the family is good as between himself and the other members of the family. It is quite true, as pointed out by the learned Government Pleader, that the Government were not parties to that decision, and the decision does not go to the length of saying that the Government are bound to recognize the title of the adopted son to the watan. The learned Government Pleader has suggested that we should refer the correctness of that decision to a full bench, but in view of the length of time it has stood and the number of titles which are probably dependent upon it, we think that no full bench would be inclined to interfere with it. So that we are bound to hold that the plaintiff as a validly adopted son of Bhimrao is the watandar as between himself and the collateral heirs of Bhimrao. Government may or may not have a right under proviso I in the sanad to demand service or further assessment. That question has not been urged and is not, I think, open on this appeal, because the plaintiff originally asked Government to deal with him on that footing. He was willing to pay full assessment. But Government insisted on their right to resume possession of the whole of this property, which, I may say, is extensive and comprises something like 14000 acres of land. In my opinion Government have no right to resume possession of this land, and that is the only point with which we can deal on this appeal.
16. In my judgment the plaintiff is entitled to a declaration that the orders passed by the Government of Bombay in Resolution No. 7276/24, dated August 16, 1928, under which they resumed possession, are illegal and ultra vires, and cannot be enforced against the plaintiff, and I think we ought to grant the injunction asked for in paragraph 3 of the prayer in the plaint, and a declaration as to the plaintiff's right to the amounts collected by Government Officers asked for in paragraph 4, and make an order for restitution of possession of the lands to the plaintiff. I am not prepared to make the declaration asked for in paragraph 2 of the prayer, namely, that plaintiff, as the legally adopted son of Bhimrao Venkatrao Desai, is entitled to hold as owner the entire watan property described in Schedules A, B, C and D. I think that that declaration might be construed to mean that Government are bound; to recognize the plaintiff as holder of the watan, on the terms of the sanad, without liability to further assessment, and as at present advised, I am not satisfied as to the correctness of that proposition. The claim to the cash allowance in Schedule D will, by consent, stand over.
17. The appeal must be allowed with costs, and the plaintiff is entitled to the costs in the lower Court.
N.J. Wadia. J.
18. The appeal turns in the main on the interpretation of the sanad which was granted to Bhimrao in 1872. That sanad followed an enquiry by the Inam Commissioner into the right which Bhimrao, the plaintiff's adoptive father, claimed to hold the property in the suit free of assessment as desgat watan. In 1854 the three villages of Girisagar, Birkhabbi and Bhaganagar, included in Schedule A attached to the plaint, were attached under the orders of Government on the ground that they were not desgat watan, but were held as a jahagir, i.e., on a non-service tenure. An enquiry by the Inam Commissioner followed with regard to each of these three villages and in October, 1858, Major Gordon, the Inam Commissioner, decided with regard to all these three villages that they could not properly be regarded as belonging to the desai watan or in any light other than of Government villages continuable under the first proviso to Rule 6 of Schedule B of the Rent-free Estates Act (XI of 1852) during the lifetime of the claimant, and that as the claimant had died since the commencement of the investigation, the villages should be at once resumed and assessed as khalsat. Against these orders Bhimrao, the son of the deceased inamdar, appealed. These appeals were not decided by Government, but in 1864 an offer was made to Bhimrao that if he agreed, summary settlement in respect of the properties pertaining to his watan would be applicable to him on certain conditions which Government laid down. Bhimrao accepted those conditions, and in 1872 a sanad was granted. That sanad was in the form known as the Gordon Sanad as is clear both from the terms of the sanad and from the reports made by the Government Officers prior to the granting of that sanad. The Collector in the Report which he made, and which is referred to in the preamble to Government Resolution No. 7276/24, dated February 16, 1927, (exhibit 103 in this case), states that the Gordon Sanad settling this desgat watan was issued on February 8, 1872. The Commissioner in his Report of August 27, 1926, also mentions that the villages were settled in 1864, under the Gordon the sanad which has been put in, is unfortunately torn and the first paragraph of the Gordon Settlement Sanad does not, therefore, appear in the sanad before us. That the sanad was, however, in the form of the Gordon Settlement Sanad is not disputed by the learned Government Pleader. The sanad mentions that the lands and cash allowances entered in the Government Records hereditarily shall be continued in lineal succession from generation to generation on condition that the persons in enjoyment and their heirs shall be obedient to the British Government and act faithfully and honestly and shall go on paying to Government permanently the judi of Rs. 1,653-1-0 mentioned in the sanad.
19. The contention of Government is that they were entitled to resume the whole watan property, because on the death of Bhimrao there was no male heir to the watan, lineal, collateral or adopted, within the limits of the watandar family as required by the first condition of the sanad.
20. The plaintiff has been found to be validly adopted by the last holder of the watan, Bhimrao. It is admitted that he is not a member of the watandar family, being a son of Bhimrao's daughter.
21. Two questions arise : first, whether, assuming that the plaintiff is not such an heir to the watan as is mentioned in the first condition, Government are entitled to resume the watan; and, secondly, if they are entitled to resume, whether that resumption, could be of the lands themselves or only of the exemption from payment of full assessment and from liability to service. The contention of Government is that they are entitled to resume the actual lands. The terms of the Gordon Settlement Sanad were interpreted by this Court as early as 1902 in Balaji v. Datto I.L.R. (1902) Bom. 75 : 4 Bom. L.R. 762 and it was held that the terms of the sanad did not prohibit the adoption of a person from outside the watandar family, and that a person so adopted must be held to be validly adopted, and would be entitled to the watan as against the other members of the watandar family. It seems to me that so far as Government are concerned, the only circumstances in which they could resume the watan under the terms of the sanad would be on breach by the holders of the watan of either of the two conditions referred to in the second paragraph of the sanad, i.e. if they were disloyal- to Government, or if they failed to pay the fixed yearly dues mentioned in the said sanad. Admittedly neither of these contingencies has occurred. The first condition of the sanad which provides that the lands and cash allowances mentioned in the earlier part of the sanad shall be continued without demand of service and without increase of the amount of tax over the fixed amount and without objection or question on the part of the Government as to the rights of any holders thereof, so long as any male heir to the watan, lineal, collateral or adopted, within the limits of the watandar family, shall be in existence, can only give Government the right to levy full assessment on the land or to demand service if the watan has passed to an heir who does not answer to the description given in that condition. But it cannot give to Government the right to resume the watan. The condition 4eals not with the duties imposed on the holders of the watan, but with the terms on which Government were prepared to concede to the holder the right of exemption from full assessment and from the obligation to perform service and the passing of the lands to an heir other than that described in the condition could only result in relieving Government from the obligation not to increase the land tax and not to demand service. The condition cannot control the terms of the operative part of the sanad by which the lands were to be continued hereditarily to the grantees so long as they remained loyal and continued to pay the fixed dues mentioned in the sanad. It cannot be 'said that the plaintiff, who has been found to be a validly adopted son of the last holder of the watan, is not an heir within the meaning of the second paragraph, the operative paragraph of the sanad. On this view Government would not be entitled to resume the watan. Even, however, if a contrary view were taken, resumption cannot, in my opinion, entitle Government to evict the plaintiff from the lands. All that it could entitle them to do would be to-consider themselves absolved from the obligation mentioned in the first condition of the sanad, namely, the obligation not to increase the land tax beyond the amount mentioned in the sanad.
22. The sanad was granted, as 1 have said, under the summary settlement under the terms of Act XI of 1852. That Act gave power to Government to appoint Inam Commissioners to enquire into claims against Government on account of inams and other estates wholly or partially exempt from payment of land revenue. The object of the Act was confined to providing a summary mode of disposing of claims to exemption from payment of revenue. The Act gave no power to the Inam Commissioner to decide questions as to the right to possession of the lands. In the Report of Colonel Etheridge, the Alienation Officer, of April 21, 1873, printed in the Narrative of the Bombay Inam Commission, it is stated that under the enquiry held by the-Inam Commissioner, 'Eviction was illegal. In other words, possession could not be interfered with.' And in support of his view he has referred to a Circular issued by the Government of Bombay in 1854, being Circular Letter No. 2449, dated May 27, 1854, in which it was stated that 'All that the adjudicating authority (the Inam Commissioner or Collector) can try, is the title to exemption from assessment. In the event, therefore, of the claim of an inamdar, who is in occupation of the land, being disallowed, the inamdar must nevertheless be permitted to continue in possession of the land for so-long as he pays the full assessment imposable on the land as khalsat land according to the revenue survey settlement'...and that 'in cases in which the claimant, whose title as inamdar is disallowed, has only enjoyed the Government right, that is, the assessment on the land, the occupant will remain in possession, and pay direct to the village officers on account of Government, instead of the inamdar or his agent.
23. It cannot, therefore, be argued, as has been contended by the learned Government Pleader, that when the Inam Commissioner in his three reports of October, 1858, decided that all the three villages should be resumed and assessed as khalsat, he meant anything more than that the exemption from liability to pay assessment which the then inamdar had claimed was to be resumed, and that the inamdar was to be relegated to the position of an. ordinary occupant liable to pay full assessment on the land. Even, therefore, if under the first condition of the sanad, Government were entitled to resume the watan, they could not under the terms of the sanad evict the plaintiff from the actual possession of the lands. The plaintiff is entitled to the declaration which he has asked for that the orders issued by Government are illegal and ultra vires, and to the injunction. I agree, therefore, that the appeal should be allowed.
24. Per Beaumont C.J. The appeal as regards property D will stand over on Mr. Desai's undertaking to lodge a fresh application to the Collector within one month after obtaining a copy of the judgment.