1. These are two appeals by the defendants against a decree of the First Class Subordinate Judge of Ahmednagar with appellate powers in a suit relating to a share in the villages of Akolner and Khedle Parmanand in the Ahmednagar District. The facts are briefly these. Vishnu Moreshwar Dabholkar and his brother Janardhan, who were the owners of a two annas share in the village of Akolner and a six annas share in the village of Khedle Parmanand, mortgaged their share along with other property; to Sadashiv Shivram, who is respondent No. 1 in these appeals. This mortgage was in January, 1915. In 1920, a suit was brought on the mortgage against the two mortgagors and their sons, among whom was Dattatraya Vishnu Dabholkar, who is respondent No. 2 in appeal No. 293 and the appellant in appeal No. 187. A decree was passed by consent in 1921 for an amount of Rs. 32,000 and odd. Eventually the mortgaged property was put to sale and purchased by Sadashiv. The latter made applications to the revenue authorities to get his name entered in the place of Vishnu Moreshwar in the village records, and to get his share of the amount paid to him by the village officers. These applications were refused. The appeals made to the superior revenue authorities and to Government were unsuccessful, and accordingly this suit was filed in December, 1930.
2. For our purposes it will be sufficient to state the reliefs claimed in the suit. They were, firstly, a declaration that the shares in the two villages are of the ownership of the plaintiff Sadashiv by right of purchase; secondly, a declaration that the name of defendant No. 2, Dattatraya Vishnu, whose name was entered in the records on the death of his father in 1926, should be removed and the name of the plaintiff entered instead as the owner of the shares in the villages. Alternatively, it was prayed that Dattatraya's name might be retained nominally and the plaintiff's name entered as the purchaser of the shares. It was further prayed that the amount of plaintiff's share should be paid to him directly by the village officers and that defendant No. 1, i.e. the Secretary of State, should be requested to give proper and necessary orders to the village officers in respect of the plaintiff's management of the villages. It was further asked that a sum of Rs. 2,500, which had been collected and was held in the treasury, should be paid to the plaintiff.
3. The trial Court found that the grant of these villages was a saranjam grant, that it was a grant of the royal share of the revenue only, that a certificate under the Pensions Act was, therefore, necessary, and that the suit against the Secretary of State was barred under the Revenue Jurisdiction Act. Accordingly the suit was dismissed. On appeal, the learned First Class Subordinate Judge took a different view. He decided that the grant was not saranjam but personal inam, that it was not inalienable, that it was a grant of the soil and not merely of the revenue, and, therefore, no certificate under the Pensions Act was necessary, and that the suit was not barred by Section 4 of the Bombay Revenue Jurisdiction Act as found by the trial Court. He, therefore, reversed the trial Court's decree, gave a declaration that the plaintiff has a two annas share in the village of Akolner and a six annas share in the village of Khedle Parmanand, ordered that the plaintiff's name should be entered in the accounts of the two villages, and ordered further that defendant No. 2, i.e. Dattatraya, should refrain from obstructing the plaintiff in receiving the amount direct from the treasuries, and that defendant No. 1, the Secretary of State, should arrange to pay the amount of plaintiff's share to him direct, and should also pay the sum of Rs. 2,500 lying in the treasury to the plaintiff. Against this decree, appeals have been brought both by Dattatraya, appeal No. 187, and by the Secretary of State, appeal No. 293.
4. I propose to deal first with the appeal of Dattatraya, defendant No. 2. The learned Counsel who appears for him has contended (1) that the grants in question were saranjam, i.e. for life only and inalienable, and that therefore the mortgage was void, (2) that if the grants were not strictly saranjam nevertheless the estate conveyed was inalienable, (3) that there was a grant of the revenue only and not of the soil, and therefore a certificate was necessary under the Pensions Act, and (4) that the suit is barred by the Bombay Revenue Jurisdiction Act.
5. It will be convenient to mention here the position taken up by Government in this case. It supports the other appellant as to the suit being barred by the Revenue Jurisdiction Act. It contends, however, that the grants in question are personal inam and not saranjam. It has not contended that a certificate is necessary under the Pensions Act, and it has not disputed the plaintiff's right to get the revenue from defendant No. 2 after it has been paid to the latter in due course from the Government treasuries.
6. The grants with which we are concerned are very ancient. The earliest documents now on record are two sanads of the year 1751, exhibits 138 and 139, relating to the villages of Akolner and Khedle Parmanand respectively. They refer to former grants of the villages to the ancestor of defendant No. 2, and confirm the grants as regards Babs Fouzdari, Amanat and Sekhdari, and Kotwali, and Farmayash, and Chakari. The grant was made in favour of the grantee and his heirs lineal or collateral from generation to generation. In the year 1753 we have a sanad, exhibit 107, which relates to both the villages Akolner and Khedle Parmanand, and a third village Navagaon. It describes them as villages of Moglai Ammal in which the Moglai Ammal was enjoyed before, and probably, although the language is not very clear, it was merely a confirmation of the rights previously granted. Subsequently, by exhibit 109, there was a grant of the Swaraj Ammal in the villages of Akolner and Navagaon in addition to the Moglai Ammal. This sanad contained an important recital that the Ammals were granted including Kulbab Kulkanu and rights of trees, water, stones, earth and minerals, which rights were to be enjoyed in inam from generation to generation. Subsequently it appears that the villages were attached by Government, and, on the intercession of Daulatrao Scindia with the Peshwa, there was a re-grant in 1779, exhibits 113 and 140. According to the sanad, exhibit 140, the three villages of Akolner, Khedle Parmanand and Navagaon were granted in inam and it was provided that the grantee and his descendants should enjoy the inam from generation to generation.
7. Exhibits 101, 89, 92 and 88 are the proceedings and Faisalnamas of the Inam Commission relating to Akolner and Khedle Parmanand respectively. In each case the old sanads were referred to and treated as conferring a heritable estate. In each case also it was provided that the inam was to continue 'so long as there shall remain in existence any male heir in the family of the original grantee Ramaji Anant' and the orders were passed under Schedule B, Clause 2, of Act XI of 1852, that is to say the procedure followed was that appropriate for heritable grants not saranjam. There was a rather curious difference in the wording of the two Faisalnamas. In the case of Akolner the grant was of 'the whole of the village Akolner exclusive of Mokasa, Sardeshmukhi Kherij Watani and ancient Haks and Inams.' In the case of Khedle Parmanand what was granted was 'the Jahagir Ammal of the village equivalent to half the amount of the total revenue after deducting amounts due to Hukdars and the village expenses.' But the history of the two villages does not suggest that any difference was intended in the nature of the grant, and in the Alienation Register, exhibit 87, the villages are shown similarly as Class II Personal Inam (not saranjam, which would be Class I), and the grant was described as one of the entire villages in each case.
8. It is quite clear, we think, that the plaintiff has failed to establish that the villages were granted as saranjam. No doubt the grants were made in the first instance for political or military services. But such grants are not necessarily of the nature of saranjam, and there is nothing in the old sanads to indicate that a mere life-estate was intended. The indications are rather the other way. The grants were not treated as saranjam by the Inam Commission, nor have they ever been so treated since. The rules made by Government as to saranjams (see Dandekar's Law of Land Tenure, Volume I, page 174) provide that no saranjam shall be capable of subdivision, and also that the grant is liable to be resumed whenever the saranjam or its revenue passes into the hands of a person other than the saranjamdar. In paragraph 8 of the judgment of the Court of first appeal there is a reference to a case, which I shall have occasion to mention in detail in a moment, when an opportunity clearly arose for resumption under the saranjam rules, had they really applied to the case. Government, however, did not resume but recognised the alienation. Government, to whose interest it is to assert that the grants are saranjam, has never done so, and does not do so in this case. It appears that a list is maintained of all saranjam estates and these villages are not in that list.
9. Mr. Thakor's argument that, even if not saranjam, the grants were inalienable is, we think, clearly untenable. Faisalnamas of the Inam Commission in the same form as those in the present case were held to confer a heritable and alienable estate in Gajanan v. Jankibai : AIR1938Bom113 . Besides, this contention must be regarded as res judicata, for the plea that the estate is inalienable and the mortgage therefore invalid ought to have been taken in the mortgage suit.
10. The point under the Pensions Act is not quite so clear. If the case merely depended on the construction of the old sanads and the Faisalnamas, it might have been rather difficult perhaps to say that there has been a grant of the soil, at any rate in the case of Khedle Parmanand. But in this connection we have to consider, firstly, that Government, which would apparently be interested in maintaining that it was a grant of the revenue only, has not in fact taken that position, and, secondly, that defendant No. 2, on whose behalf the argument is now put forward, has himself claimed in the witness-box to be the owner of the soil of these villages. Moreover, the Pensions Act is to be construed strictly in favour of the right of suit. Section 4 of the Act, which is relied upon, speaks of suits relating to pensions and grants of money or land revenue. This is not strictly speaking a suit relating to a grant of land revenue. There is no dispute as to the fact of the grant, or as to its validity, or as to the persons entitled under it. It is a suit relating to property which has been the subject of a grant, but the plaintiff's claim is quite independent of the grant. If this could have been regarded as a suit relating to a grant of land revenue within the meaning of Section 4, the suit on the mortgage would also seem to have been such a suit, and the defence that a certificate was necessary could have been and ought to have been taken there. We think, therefore, that the objection based on the Pensions Act has properly been disallowed.
11. Both Mr. Thakor for defendant No. 2, and the Assistant Government Pleader for the Secretary of State, rely upon Section 4(d) of the Revenue Jurisdiction Act which bars inter alia claims against the Crown to be entered in the village papers as superior holder, inferior holder, occupant or tenant. The argument is that the plaintiff is asking in effect to be entered in the village papers as a superior holder, for a person who claims to have his name either entered in place of or associated with that of the superior holder as being entitled to all the revenue payable to the superior holder is really claiming to be the superior holder himself. 'Superior holder' means, according to the definition in the Land Revenue Code, a person entitled to the revenue. Clause (f) of Section 4 has also been relied on, on behalf of defendant No. 2. That clause bars claims against the Crown to receive payments payable out of the land revenue, and it is said that in the present suit the plaintiff is making such a claim. But land revenue is defined in the Revenue Jurisdiction Act as meaning all sums and payments in money or in kind received or claimable by or on behalf of the Crown. It seems clear, therefore, that Clause (f) of Section 4 can have no application to the case of an alienated village where Government has ceased to have any interest in the revenue at all.
12. But, though Clause (f) does not apply, there is, we think, no satisfactory answer to the objection based on Clause (d). Mr. Desai, who appears for the plaintiff, has had to concede that the first relief claimed, viz. that the plaintiff's name should be entered as owner, is obnoxious to the clause. He has argued that the alternative relief is not obnoxious to it because the plaintiff does not ask to be described as a superior holder but only as a purchaser. I have set out in detail the reliefs sought in the plaint, and it is quite clear that the plaintiff wants to be shown in the village papers as the person en-titled to the revenue of the village and such a person is the superior holder as defined in the Bombay Land Revenue Code. Although the Revenue Jurisdiction Act like the Pensions Act is to be construed strictly, that does not mean that it should be construed so technically as to make its provisions a dead letter. The judgment of the Court of first appeal seems to be based mainly on the orders passed by Government in another case of an alienation of a share in the village of Akolner (see exhibit 119). It appears that the eight annas share of one of the inamdars of Akolner had been purchased by one Gadre whose name had been entered in the village accounts in 1880. In 1899 his grandson and heir applied that his name should be substituted. The possession of the share in the village had been all along with the purchaser, and no objection to the entry of the name of the heir was made by the original owners. The only persons objecting were some people who claimed to have purchased the rights of the original owners. It appears that in 1883 Government passed a resolution that in the case of inam villages such as those with which we are concerned, which are held under special conditions and not summarily settled, it is necessary to be strict and, as a general rule, to refuse to enter sub-divisions. This change of practice is referred to in the written statement put in on behalf of the Secretary of State in this suit. But, apart from that, the orders passed by Government in Gadre's case can have no bearing whatever on the question of the jurisdiction of the Courts to control the revenue authorities in such matters. Government may pass any orders that are considered proper in the particular case. One may think that in the circumstances of the present case it would really be more equitable and convenient that the moneys to which the plaintiff is clearly entitled should be paid1 to him direct, and that if any changes are necessary in the village papers they should be made. But the matter is entirely within the discretion of Government, and Section 4, Clause (d), of the Revenue Jurisdiction Act, debars the civil Courts from ordering that the entries should be changed.
13. The learned Judge in the Court of first appeal also appears to have relied on the proviso to Section 4 and on Section 5 of the Act. But in our opinion these have no application whatever to the present case. The proviso to Section 4, as its terms show, relates to cases where there is a dispute as to the nature of a holding, that is to say, as to whether it is exempt from the payment of land revenue or not. It does not relate to disputes as to who is entitled to be the holder. The judgment and decree relied on by plaintiff to bring him within the proviso, that is to say, the judgment and decree in the mortgage suit, had nothing to do with the nature of the holding, and the judgment did not declare the property in dispute to be exempt from payment of land revenue. As regards Section 5, Clause (b), of which was apparently relied upon, it is sufficient to say that this is not a suit between private parties, because some at any rate of the main reliefs are1 sought against the Crown.
14. We must hold, therefore, that this suit as against Government is barred. It follows from that that no order can be made that plaintiff's name should be entered in the village papers, and defendant No. 2 must remain as the superior holder. From that again it seems to follow that Government cannot be ordered not to pay the revenue to defendant No. 2 but to pay it to the plaintiff direct. The definition of superior holder in the Land Revenue Code, to which I have already referred, shows that he is entitled to the revenue. Section 85 of the Code provides that he is to receive his dues through the village officers. Under Section 86 the superior holder only is entitled to assistance from Government. So that an injunction against Government to pay the plaintiff direct, and not to pay the superior holder, would be contrary to the spirit, if not to the express terms, of the Land Revenue Code. The relation between Government and the superior holder is not affected by the sale of the superior holder's rights.
15. In a somewhat similar case, already cited in a different connection, Gajanan v. Jankibai, an injunction was granted restraining an inamdar from receiving the revenue of his inam which he had alienated. Government was not a party to that case, and it is not clear that there was any objection on the part of Government to payment being made to the alienee direct. In any case that does not seem to be a very appropriate method of dealing with the present case. The plaintiff is quite obviously entitled to the share of the income of these villages which he has purchased, and, as long as Government is not prepared to pay it to him directly, we think the proper thing to do is to order defendant No. 2 to pay it to the plaintiff as soon as he receives it from the treasury. Such an order, we think, is required by the justice of the case. Mr. Thakor has argued that the plaintiff ought to have filed cross-objections, and, not having done so, is not entitled to any amendment of the decree. But as the decree stood there was nothing to object to, and, we think, the order we propose to make is covered by Rule 33 of Order XLI,
16. The result is, therefore, that appeal No. 293 of 1935 will be allowed, and the suit so far as it is against the Secretary of State will be dismissed with costs throughout. As regards appeal No. 187 of 1935, we substitute a new decree for that of the Court of first appeal. We give the plaintiff a declaration as already allowed by the Court of first appeal, and we also grant a mandatory injunction to defendant No. 2 that he do recover the amounts payable to plaintiff in respect of his shares in the two villages and do immediately pay to him the amounts so recovered. We understand that in consequence of the decree of the Court of first appeal certain payments have already been made to the plaintiff. There is no reason why these moneys should be returned and all payments hitherto paid will stand confirmed. But interest on those payments is not allowed. Defendant No. 2 must pay all plaintiff's costs in the lowers Courts, except those occasioned by making defendant No. 1 a party, and will also pay the costs of this appeal to this Court.
17. Civil application No. 473 of 1938, which was for additional evidence, is dismissed with costs.