1. This is a second appeal from a decision of the District Judge of Belgaum. The plaintiff is suing for possession of two survey numbers and his case is that the land was given somewhere towards the end of the 18th century by his ancestors to the ancestors of the defendant on terms that services were to be rendered by the defendant's family, that those services have not been rendered, and that the plaintiff is entitled accordingly to forfeit the land and resume possession. The plaintiff has throughout based his title on two documents, which are Exhibits 47 and 48, and the question which we have to determine in the first instance is whether on the true construction of those documents the land was in fact granted to the ancestors of the defendant on the terms that he should render services, and if so whether the possession of the land can be resumed by the plaintiff on those services not being rendered. In both the lower Courts that second question was not dealt with independently; the only issue raised was whether the grant was made by plaintiff's predecessors to the defendant's predecessors on condition that the grantee and his descendants should render service to the plaintiff's math at Chandagad. It seems to have been assumed that if in fact it was a service grant the failure to perform the services would automatically entitle the plaintiff to resume possession of the land. In construing the documents it is desirable to bear in mind the general proposition of law which has been established in a good many cases, namely, that where you are dealing with land, and services connected with that land, the cases fall into two classes, first, where land is granted burdened with service, and secondly, where there is a grant of an office to which lands are annexed by way of remuneration. It has been held that in the first class of cases the lands are not resumable in the absence of some express provision making them resumable, but that in the second class of cases the lands are resumable in the absence of some provision to the contrary. See particularly Chandrapa v. Bhima Bin Dassappa I.L.R. (1918) Bom. 37 20 Bom. L.R. 779 and Lakhamgouda, v. Baswantrao : (1931)33BOMLR974 , P.C.
2. Turning now to the documents, Exhibit 47, which is dated January 26, 1795, is a document addressed by the swami of the math to the assemblage of Brahmins in certain specified places, and after some rather lengthy preliminaries the document states :-
In your prantas (provinces) the Varshasanas (i. e. yearly allowances) continuing from year to year as wall as certain directions in connection with the institution (i, e. the math) are in vogue. As the Brahmin on behalf of the institution does not come, the said yearly allowances are not given effect to regularly. For this reason Vedmurti Rajeshri Narayanbhat Karande (who is the ancestor of the defendant) has been appointed as the Samsthanik Brahmin in your Prant. So all should obey his command.
Then various dues which are payable in the localities are referred to, and then the document goes on :-
All this has been entrusted to the aforesaid Vedmurti, you should accordingly give the same to him year after year.
and then the Brahmins are directed to pay to him also the income of certain Inam lands in their neighbourhood. Now taking that document by itself, it is merely an authority to the defendant's ancestor to collect various dues in certain districts, and there is nothing whatever in that document to suggest that the authority is of a hereditary nature and that the dues may be collected by the descendants of the agent after his death. Nor is there anything whatever in that document to suggest that the agent is being appointed to an office. Plainly an authority to an agent to collect dues does not constitute him the holder of an office, if there is nothing more to go upon than that. Then the second document, Exhibit 48, is dated two days later and that is addressed 'To my dearest disciple Vedmurti Karande' (i. e. the defendant's ancestor, the agent appointed by the other documents), Then it says:-
The fields situated in your kasha are settled and given to you for your maintenance. You should give offerings to the deity and perform 'Vaishwadev' ceremony and enjoy the fields from generation to generation. We shall allow the same as stated above in the regular succession of the Samsthan and a Patrak (i. e. letter of command) in respect of the allowances in the Prants has been given to you separately. You should be acting according to the same.
Now I will assume that the patrak or letter of command in respect of allowances is the document Exhibit 47, though that I think is not perfectly clear. But even on that assumption there is nothing in this document, Exhibit 48, which expressly makes the enjoyment of the land granted conditional on the performance of the services referred to in Exhibit 47. I may observe that the direction to give offerings to the deity and perform Vaishwadev ceremony is admittedly a mere recommendation to the grantee to perform the ordinary duties which a pious Brahmin would perform, and it is not suggested that those duties have been ignored. The argument on behalf of the plaintiff is that the two documents, Exhibits 47 and 48, must be read together, that as by Exhibit 48 the land is given for maintenance from generation to generation, we must hold that the services for which it is given, i. e., those referred to in Exhibit 47, are also to be performed from generation to generation ; that is to say, that we ought to hold that this is a grant of service land, and that the duration of the grant of the land is the measure for determining the period during which the services are to be rendered, and further that the persons for the time being in enjoyment of the land are those on whom the obligation of service rests. In my opinion it is quite impossible to extract such a meaning from the two documents, even if they are read together. Exhibit 48 taken by itself is certainly not a grant of service land; it is a mere grant of land for a heritable estate for the maintenance of the grantee, and even on the assumption that the patrak referred to therein is Exhibit 47 and that the two documents should, be read together, I am not prepared to hold that the performance of the services is inferentially made a condition of the continued enjoyment of the land. Still less am I prepared to hold that the services to be performed, even if on the true construction of the documents they are a burden on the land, extend beyond the lifetime of the grantee. . There is not a word in either of these documents to suggest that the services are to be performed after the death of the grantee, and I am not prepared to imply any such obligation. That being so, various interesting questions of law which have been discussed do not really arise. Mr. Thakore on behalf of the respondent has argued in the first place that these documents constitute the grant of an office. But that argument is, I think, based on the desire to bring the case within the authorities which say that land is resumable if it is granted as remuneration for the holding of an office, because there is really nothing in the documents to suggest that the ancestor of the defendant was appointed to any office. Then he has argued in the second place that this is a grant of land burdened with service, and that, although the general rule may be that land of that nature is not resumable in the absence of an express condition to that effect, there is an exception to that rule where there is a wilful refusal, to perform the services, and for that proposition he relies on the case of Yamunabai v. Lagmanna (1918) 21 Bom. L.R. 820 If I am right in thinking that at the most the services to be rendered were limited to the life of the grantee, it is not necessary to consider the effect of that case, whether it really amounts to an exception to the general rule that lands burdened with services are not resumable in the absence of an express condition or whether it was really a case, as one of the learned Judges who decided it clearly thought, of the grant of an office to which lands were annexed by way of remuneration. If in fact the only services to be rendered were services to be rendered by the original grantee, it is not suggested there was in fact any default. It is also unnecessary on that view of the case to consider, as the lower Courts did, the subsequent conduct of the parties. On the finding of the lower Courts that this was a service grant it became necessary to consider whether the services had been rendered or not, but the subsequent conduct of the parties is irrelevant upon the question of the construction of the documents. In my opinion these documents are clear. There is no ground for holding that the grant of the land was conditional on the performance of services by the grantee and his descendants from generation to generation, and if that is so, the question whether services were in fact rendered or not is to my mind irrelevant. I think, therefore, that the appeal must bo allowed and the suit dismissed with costs throughout.
3. The only question arising on the pleadings was whether a grant of two survey numbers in sub-inam made by the swami of the Kavale and Khanapur math in 1795 can be resumed on the refusal of the representative of the original grantee any longer to perform the service of local representative or an agent of the math. The law on the point is settled, for it depends on the nature of the grant. We have been referred to a series of cases including Rukminibai v. Laxmibai (1919) 22 Bom. L.R. 254 Lakhamgavda v. Keshav Annaji I.L.R. (1901) Bom. 305 6 Bom. L.R. 364 Chandrapa v. Bhima Bin Dassappa I.L.R. (1918) Bom. 37 20 Bom. L.R. 779 Lakhamgouda v. Baswantrao : (1931)33BOMLR974 , P.C., Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 438 and Yamunabai v. Lagmanna (1918) 21 Bom. L.R. 820 The general rule is that where land is burdened with service it is not ordinarily resumable by the grantor ; but where the grant is that of an office to which is annexed as remuneration of that office the enjoyment of land, then the grant may bo resumed on the failure of the holder of the land to perform the duties of the office or on his ceasing to represent the office. In the present case we are dealing with two documents executed so far back as 1795. It is obvious that we do not know the circumstances in which they were made, and it is very difficult for us to imagine any of the events of that time. The first grant purports to appoint the defendant's ancestor of those days as a sort of local agent or manager for the math, his duties being to collect certain dues, which apparently go to the math as of light, and certain income from land owned by the math, The second document, which was executed two days later, makes a grant in sub-inam of two survey numbers which were held by the math as inam to the defendant's ancestor and on the face of it this grant purports to be one for maintenance, the only condition being as to the daily performance of certain ritual observances which are ordinarily performed by all Brahmins. The grant, it is true, does contain a reference to what we are told is the other document made two days earlier, the purport of it being that a 'patrak' has been issued as to the allowances. But where we have no other means of identifying the 'patrak,' it is difficult to say whether the reference is to the earlier document, or not. It is clear that the first document is an appointment to some kind of duty, but the second is equally certainly a grant of maintenance. It seems to me that in these circumstances we cannot read them together, as has been done by the learned Judges in both the Courts below. I think that on an interpretation of these documents it is not reasonably possible to hold, as they have done, that the grant was resumable, and that it comes within the rule of resumable grants, and I think that the lower Courts' decisions were wrong.