1. One Sakhidas, claiming to be a permanent tenant of lands in a Bhag, sold his permanent tenancy right to the plaintiffs. The Collector, after the death of Sakhidas, intervened under Section 3 of Bombay Act V of 1862, removed the plaintiffs, and placed the Bhagdar, now defendant, in possession. The plaintiffs then brought this suit and the Courts below decided against them.
2. On Second Appeal a Bench of this Court consisting of Scott C.J. and Chandavarkar J. remanded three issues to the lower appellate Court. The first two are interesting because they indicate clearly enough that at that time the learned Judges were disposed to think that if permanent tenants existed in these Bhagdari and Narwadari tenures their rights of alienation could only be restricted by custom. It might be difficult to reconcile that opinion with another decision given by Scott C.J. and Batchelor J. Jijibhai v. Nagji (1909) 11 Bom. L.R. 693, but for the purposes of this judgment it will be sufficient, I think, to confine that case to its own facts, bearing in mind particularly the course of this litigation.
3. These three issues having been found upon by the lower appellate Court, the first two virtually in favour of the present plaintiffs-appellants, the case came on a second time before Scott C.J. and Batchelor J. Those learned Judges again remanded two issues to the lower appellate Court because in the then state of the record it did not appear that it had either been found on the evidence or admitted that the plaintiffs' vendor was a permanent tenant. The lower appellate Court has found on the two issues so remanded that the plaintiffs' vendor was a permanent tenant, and that the permanent tenancy dated back to a time prior to the passing of the Bhagdari Act of 1862. This is clearly a finding of fact,, and the decision of the case must be based upon the vendor of the plaintiffs having been a permanent tenant of the land within a Bhag before the enactment of 1862. Having regard to the policy of that Act expressed in the preamble, and to the general reason of its provisions in respect of alienations, we think that it is not necessary to give an absolutely literal and verbal interpretation to the very sweeping language of Section 3. But even were that necessary, we should still with some confidence hold that on the facts found a permanent tenancy precedent to the passing of the Act of 1862 was a right in the permanent tenant not described in Section 3 by the words ' any portion of a bhag or share etc.' As we understand that section, its intention was to preserve a certain tenure, called the Bhagdari or Narwadari tenure, and the status of persons enjoying that tenure, and the means devised by the Legislature were clearly intended to prevent the dismemberment of lands belonging to such privileged classes under that tenure. But we think that it cannot be said that the mere geographical position of the lands held in permanent tenancy before the passing of that Act necessarily prevents alienations of such tenancies within either the verbal definition or the spirit of Section 3. If the learned Judges who first remanded this case were right in contemplating at least the possibility of an existing permanent tenancy, should such be found, being alienable, unless restricted by custom notwithstanding the provisions of Section 3, then there would be no difficulty whatever in holding after the findings of fact on the second remand that the plaintiffs' vendor was such a permanent tenant before 1862, and that no custom has been proved restricting his right of alienation. The principle to which we seek to give effect, although it may be difficult to reconcile with the single decision I have referred to in Jijibhai v. Nagji (1909) 11 Bom. L.R. 693, is at least intelligible, simple and capable of uniform application, and that is, that where rights are found to have existed before the Bhagdari Act, in parsons not themselves Bhagdars or Narva-dars, but the locus of whose rights fell within what are called the Bhags or shares in the Bhagdari and Narvadari village, those rights never were ' any portion of such Bhags or shares of Bhagdari or Narwadari village etc. ' within the meaning of Section 3, and, therefore, it will follow naturally that the prohibitions against alienations contained ins. 3 would have no applicability to the class of cases we are describing. It appears to us that this is clearly such a case, and, therefore, that the alienation by the permanent tenant to the present plaintiffs was not prohibited under Section 3, was not null and void, and therefore, the Collector was wrong in removing the plaintiffs.
4. For these reasons we think that the plaintiffs' claim, including mesne profits, to be determined in execution, must be decreed with all costs.
5. I entirely concur. It appears to me that the permanent tenancy was a good alienation inasmuch as it took effect before the passing of the Bhagdari Act (Bom. Act V of 1862). The permanent tenancy so created thereupon ceased to be any portion of the Bhag. It became independent property carved out of what was previously the Bhag. The only rights left were the rights to receive rent from the permanent tenant. That was the only interest left in the Bhag. No custom has been shown limiting in any way the right of alien ation of a permanent tenant and there would ordinarily be nothing to prevent a permanent tenant giving full rights to his alienee, notwithstanding the fact that on failure of his own heirs there might, in default of alienation, have been a reversion to the Bhagdar. The only property rendered inalienable was the right already referred to of receiving rent from the permanent tenant which remained vested in the Bhagdar. That and that alone could properly be held to come within the definition of ' portion of a Bhag ' and to have been rendered inalienable by the subsequent passing of the Bhagdari Act of 1862.