N.J. Wadia, J.
1. Respondent No. 1, Rajaram Parashram Deshpande, is the inamdar of the village of Padamale in the Tasgaon taluka of the Satara District. The village was originally granted to his ancestors in Deshpande inam by the Mahratta Government in the year 1739, the inam being a grant of the soil of the village and conferring full proprietary rights exclusive of hakdars and inamdars. The inam was continued by the British Government. In 1902 a sanad was granted to the inamdar under Section 15 of the Bombay Hereditary Offices Act (Bom. III of 1874) by which the holders agreed to pay to Government a fixed annual judi in lieu of service. There were certain lands granted as inam in the village for shet-sanadi service. In 1920 Government ordered a discontinuance of the service of shetsanadis and imposed full assessments on the lands. The respondent contended that the sanadi inam lands had been given by his ancestors to the sanadis for the performance of police duties, that they were Jadid inams, and that he, and not the Government, was entitled to receive the full assessment which had been imposed on the lands after the discontinuance of service. Government contended that the sanadi lands were Kadim Inams and not Jadid and that the inamdar was not entitled to the full assessment levied on the lands. The respondent inamdar, thereupon, gave a notice to Government in accordance with the provisions of Section 80 of the Code of Civil Procedure and filed a suit for a declaration that he was entitled to the assessment on the lands, for an injunction restraining the Secretary of State for India from recovering the assessment, and for recovering from him Rs. 300 in respect of the assessment wrongfully recovered by him for five years.
2. The Assistant Judge of Satara, by whom the suit was tried, dismissed it on the ground that the shet-sanadi lands were Kadim inam lands and not Jadid, and that the plaintiff inamdar was estopped by his conduct from contending that the inams were Jadid. On appeal the District Judge of Satara held that the shet-sanadi lands were Jadid inams and not Kadim, and that the plaintiff was not estopped from contending that they were not Kadim inams. He, therefore, decreed the plaintiff's suit with costs. Against this decree Government have filed the present appeal.
3. The issues for determination are, whether the grant of lands to the shet-sanadis was a Kadim or a Jadid inam, and whether respondent No. 1 was estopped from contending that the grant was not a Kadim inam. On the first issue the lower appellate Court had found that the grant was a Jadid inam. Mr. Coyajee for respondent No. 1 contends that the finding is one of fact and that this Court is, therefore, precluded in second appeal from going behind the finding. Questions of law and of fact are not always easy to disentangle. In the present case the contention raised on behalf of the Secretary of State that the shet-sanadi inam was a Kadim inam was based on certain documents, viz., the sanad (exhibit 21) granted to the inamdar by the British Government in 1902, the tharavbands of the village for the years 1856-57, 1861-62 and 1863-64 (exhibits 56, 57 and 58) and the entries relating to this village in the Register of Alienated Villages (exhibit 71). The sanad (exhibit 21) mentions the assessment on which the judi for the village was fixed. The preamble refers to the entries relating to the village in the Government accounts of the year 1886-87 and says that as the holders of the village have agreed to pay to Government a fixed annual sum in lieu of service, it is declared that the said lands and cash allowances shall be continued hereditarily by the British Government on condition that the holders and their heirs shall continue faithful subjects of the British Government and shall pay certain fixed yearly dues mentioned in the sanad. In consideration of the fulfilment of these conditions, the lands and cash allowances were to be continued to them by Government without demand of service and without increase of land tax over the fixed amounts. The judi of Rs. 821-10-0 which was fixed for the village of Padamale was the amount shown in the Alienation Register of 1886-87, a copy of which has been produced (exhibit 71). This document shows that in arriving at the amount of Rs. 821-10-0, a sum of Rs. 568-4-0 which was the assessment on an area of 83 bighas, 19 pands which was granted in inam to patels, kulkarnis and other village servants (including shet-sanadis) was deducted from the total assessment of the village, and one-fourth of the balance of assessment so arrived at was fixed as the judi. The fact that the judi has been so arrived at, after deducting the assessment of certain lands including the shet-sanadi lands which were held in inam by village servants, is not disputed. The question, therefore, whether the sanadi inam lands are adim inam or Jadid inam is not entirely one of fact. The decision depends upon the right construction to be put upon the sanad ( exhibit 21) and the village accounts as shown in the Alienation Register (exhibit 71) to which the preamble of the sanad refers, and upon which the calculation of the judi was based. The question is not whether the sanad and the accounts prove that the shet-sanadi inam lands were Kadim or Jadid, but what is the legal inference to be drawn from the fact proved by these two documents, viz., that the assessment of the sanadi inam lands was deducted from the total assessment of the village for arriving at the figure on which judi was calculated. This is a question of the proper inference to be drawn from a certain fact which had been proved, and such a question is, in my opinion, one more of law than of fact. In Dhanna Mal v. Moti Sagar (1927) L.R. 54 IndAp178 : S.C. 29 Bom. L.R. 870, where the question in issue was whether a certain tenancy was a permanent one or not, their Lordships of the Privy Council said (p. 185):
It is clear, however, that the proper effect of a proved fact is a question of law, and the question whether a tenancy is permanent or precarious seems to them, in a case like the present, to be a legal inference from facts and not itself a question of fact.
4. The question of the interpretation of Section 100 of the Code of Civil Procedure was again considered by their Lordships of the Privy Council in Wali Mohammad v. Mohammad Baksh (1929) L.R. 57 IndAp 86 : S.C. 32 Bom. L.R. 380. Their Lordships said (p. 91):
No doubt questions of law and fact are often difficult to disentangle, but the following propositions are clearly established:
(1) There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of facts, however gross the error may seem to be:.
(2) The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against; has been-properly admitted is necessarily a pure question of fact
(3) Where the question to be decided is one of fact, it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundations of rights but were really historical materials, have to be construed for the purpose of deciding the question:.
5. Mr. Coyajee has contended that the present case comes within the third proposition laid down above. According to him the question, whether the sanadi inam lands were Kadim inam or Jadid inam, was one of fact and it does not become a question of law merely because documents like the tharavbands and the Alienation Register, which are not in themselves instruments of title, have to be referred to and construed for the purpose of arriving at a finding. I am unable to accept this reasoning. The question appears to me essentially to be one of the proper inference to be drawn from certain facts which are proved by these documents and by the sanad itself, viz., the amount of the judi and the manner in which that amount has been arrived at. If so, the case falls under the second proposition laid down by their Lordships of the Privy Council. It is a question of the proper legal effect of a proved fact, and as such is a question of law.
6. In another case, Amiruddi Gazi v. Makhan Lal Chatterjee (1929) 32 Bom. L.R. 520., their Lordships of the Privy Council held that the finding of the District Judge, based upon the documents, as to whether the particular property in suit passed to the auction-purchaser, was not, in the true legal sense, a finding of fact at all and was not, therefore, final. As the whole of the relevant evidence in the matter was documentary, and the documents themselves constituted the foundation of the rights claimed by the plaintiffs, the right construction of these documents was a question of law which the High Court was not precluded from considering in second appeal.
7. The question, whether the sanadi inam lands were Kadim inam or Jadid inam, is one the determination of which depends on the legal effect of certain facts which have been proved by the evidence in this case. It is, therefore, a question of law and this Court is entitled in second appeal to go into it.
8. Coming now to the evidence, the case for the appellant is based on certain entries in the three tharavbands (exhibits 56, 57 and 58), the Alienation Register (exhibit 71) and the sanad (exhibit 21). The first of the tharavbands of the year 1856-57 has been signed by one of the inamdars and the other two tharavbands of the years 1861-62 and 1863-64 are signed only by the village officers and do not bear the signatures of any of the inamdars. The genuineness of the tharavbands has, however, not been disputed. The tharavband of the year 1856-57 (exhibit 56) shows that a sum of Rs. 551 was deducted from the assessment due to the inamdars on account of 'inam lands with other persons.' Under this heading were included the service inam lands held by the patils, kulkarnis, chougulas and shet-sanadis. The shet-sanadi lands were shown in the names of three persons, each holding three bighas, their total assessment being Rs. 54-9-8. In the tharavbands of 1.861-62 (exhibit 57) and of 1862-63 (exhibit 58) the same lands measuring nine bighas and assessed at Rs. 54-9-8 are clearly shown under the heading of 'Kadim Inam lands, as settled in accordance with the certificate received from Meherban Assistant Revenue Commissioner Saheb Bahadur.' The tharavband of the year 1861-62 contains a separate heading 'Details in respect of persons enjoying inams granted out of Jadid by the Inamdars of the Village.' Under this heading various persons are shown; but the shet-sanadi inam lands do not appear here. It is clear from these entries in the three tharavbands that from as early as 1856-57 the shet-sanadi lands were definitely shown in the Village Accounts as Kadim inam lands. The Register of Alienated Villages for the year 1886-87 (exhibit 71) shows the sanadi inam lands measuring nine bighas under the heading of 'Village servants useful to Government' and under the heading 'Duration of tenure' the remark against them is 'So long as services are required by Government.' The Register also shows that the judi of Rs. 821-10-0 fixed for the village was arrived at after deducting from the total assessment of the village the assessment on the inam lands granted to various village servants useful to the community and to Government, including shet sanadis. These documents establish clearly that the shet-sanadi lands have been treated in the village records and in the fixing of judi at the time of the issue of the sanad of 1902 as Kadim inam lands. The plaintiff inamdar relied on four documents (exhibits 52, 50, 51 and 66) as showing that the lands were Jadid and not Kadim inam. Exhibit 52 is a copy of the accounts of the village of the year 1833 produced before the Inam Commissioner by the plaintiff's ancestor in 1852. This statement refers to four bighas of land as sanadi pyada. Mr. Coyajee for respondent No. 1 has frankly admitted that this document does not really throw much light on the question. The learned District Judge in dealing with it says that it appears that four bighas of land mentioned as sanadi pyada in it had reverted to the inamdars. I find nothing whatever in the document itself or in the other evidence to support this inference. The document at least shows that even as early as 1833 there were some sanadi inam lands. Whether they were Kadim or Jadid inam does not appear from it. The next two documents (exhibits 50 and 51) are statements made on behalf of the three inamdars of the village by their Mukhtyars before the Inam Commissioner in 1852. They give details of the Kadim inam lands of the village. In the list of such lands the shet-sanadi inams are not mentioned. They also give a list of the Jadid inam lands given by them and their ancestors subsequent to the grant of the village to them. In this list nine bighas are shown as shet-sanadi inams in the names of the same three persons who are mentioned in the tharavband of 1856-57. Exhibit 66 is an extract from a Barnishi Register which shows that in 1861 the Settlement Officer, Southern Division, wrote to the Collector of Belgaum to say that the descriptive roll of the lands of Padamale village prior to its being granted in inam was not to be found in his office, but that in a written statement submitted to him by the inamdar the Kadim lands of the village were mentioned in detail. He enclosed with his letter a copy of this statement. The copy so sent was a copy of exhibit 51. He recommended that the lands mentioned in the list as Kadim should be treated as Kadim.
9. All that these documents produced by the inamdar show is that in 1852 the inamdars made statements before the Settlement Officer in which they showed the shet-sanadi inam lands as Jadid, and that the Settlement Officer recommended to the Collector in 1861 that this statement should be accepted. It is clear, however, from the tharavbands of 1861-62 and 1862-63 that the recommendation of the Settlement Officer was not accepted, and that under express orders from the Assistant Commissioner the sanadi inam lands were treated as Kadim. In their statement (exhibit 50) made before the Settlement Officer in 1852 the inamdars had shown certain other inams also as Jadid, viz., Rs. 52-15-9 Dharmadaya Sarva Inam and Rs. 56-4-0 Sarva Inam to Piraji bin Appaji Patil. In the tharavband of 1861-62 these inams are shown as Jadid. The learned District Judge says in connection with this that as two out of the three inams claimed as Jadid by the inamdars were treated as Jadid in the tharavbands, there was no reason to suppose that the inamdar's statement that the inam to the shet-sanadis was also Jadid was not correct. The inference appears to me to be absolutely unwarranted. The fact that the inamdar's claims with regard to two of the Jadid inams were accepted, and that with regard to the shet-sanadi inams specific orders were passed by the Assistant Commissioner directing that they should be entered as Kadim inams, in spite of the recommendation of the Settlement Officer in 1861 that the lands should be treated as Jadid, would, on the contrary, warrant the inference that the treatment of the shet-sanadi lands as Kadim was the result of an inquiry in which the inamdar's claim was overruled. The two tharavbands of the years 1861-62 and 1862-63 prove clearly that the lands were treated as Kadim inam lands. The same fact appears from the Alienation Register of 1886-87, and it is on the basis that the shet-sanadi inam lands were Kadim that their assessment was deducted from the total assessment of the village when calculating the judi which was fixed in the sanad granted to the inamdar in 1902. Mere statements made by the inamdar's ancestors in 1852, which were clearly not admitted by the revenue authorities, cannot be of any use in proving that the sanadi inam lands were Jadid. The entry of these lands as Kadim in the village records of 1861-62 and 1862-63 was evidently acquiesced in by the inamdars and was taken as the basis of the settlement arrived at by the inamdars and the Government in 1902 when the sanad was issued.
10. It has been argued that as the tharavbands of the years 1861-62 and 1862-63 do not bear the signatures of any of the inamdars, it cannot be assumed that they were aware of the entries made. It appears to me that the facts of the case cannot justify one in holding that the inamdars could possibly have remained ignorant of the entries made in the accounts of their own village. These entries were not made in one year only. They appear in the two tharavbands and in the Alienation Register. The question of the nature of these inams must again have been considered by both the inamdars and the revenue authorities in 1902, when the commutation of the watan was effected and the sanad (exhibit 21) was granted. The commutation has been made under Section 15 of the Bombay Hereditary Offices Act (Bom. III of 1874). Under that section the Collector may, with the consent of the holder of a watan, given in writing, relieve him and his heirs and successors in perpetuity of their liability to perform service upon such conditions, whether consistent with the provisions of the Act or not, as may be agreed upon by the Collector and such holder. Clause 3 of the section provides that every settlement made or confirmed under this section shall be binding upon both Government and the holder of the watan and his heirs and successors. The sanad must, therefore, have been issued with the full consent of the inamdars, and after a full consideration of the details relating to the inam, since both parties knew that they were binding themselves permanently by the terms of the commutation agreement.
11. In my opinion, therefore, the finding of the lower appellate Court that the shet-sanadi inams were Jadid and not Kadim is not a correct inference from the facts proved by the documents which have been adduced in evidence by the parties. The tharavbands and the Alienation Register prove satisfactorily that the shet-sanadi lands were Kadim inam lands and that in working out the details of the judi which was permanently fixed in the sanad of 1902 these lands were treated as Kadim.
12. The next question is, whether the respondent inamdar was estopped from contending that the lands were not Kadim inam. I have already referred to the fact that the judi which was fixed in 1902, and which by the terms of the sanad was permanently fixed, was the judi shown as due from the inamdar in the Alienation Register of 1886-87. In calculating that judi the assessment of the shet-sanadi inam lands was deducted from the total assessment of the village. The inamdars accepted the settlement by which the assessment of the sanadi inam lands was deducted to their benefit for the purpose of fixing the judi. I am unable to agree with the view taken by the learned District Judge that it would be unfair to the inamdar to assume that the shet-sanadi inam was treated as Kadim inam to the knowledge of the inamdar in the offer and acceptance of the Gordon Settlement. The commutation was based on the consent of the inamdars given in writing, and it is, I think, a legitimate presumption to make that both sides were fully aware of the basis upon which the settlement was arrived at, especially when, as in this case, we find that the facts which were accepted as the basis of the settlement had been mentioned in the accounts of the village for forty years prior to the settlement. The respondent inamdar by entering into this settlement obtained the benefit of a lower amount of judi in perpetuity. That amount, which was one-fourth of the assessment of the village, was fixed on the assumption that the inamdar was not entitled to the assessment of the shet-sanadi inam lands. By now claiming the assessment of these lands the inamdar is trying to increase the assessment to which he is entitled without giving up the benefit of the lower judi which has been fixed once and for all, and which Government, under the terms of the sanad and under Section 15 of the Bombay Hereditary Offices Act, cannot increase. He claims the benefit of the lower judi while repudiating the basis on which that judi was arrived at. It was argued by Mr. Coyajee for respondent No. 1 that even if it is assumed that the judi fixed in the sanad was based on the assumption that the shet-sanadi inam lands were Kadim, and that the assessment on them was not to be taken into account in calculating the judi, there is nothing to show that the action of Government in treating the shet-sanadi lands as Kadim inam and omitting them from consideration when calculating the judi was due to any representation made by the inamdar. On the contrary it appears that prior to 1852 at least the inamdars had been contending that the shet-sanadi inam lands were Jadid. The sanad, however, was granted as the result of a commutation agreement voluntarily entered into by the inamdar. In that commutation the inamdar must be taken to have agreed that the shet-sanadi inam lands should be taken as Kadim and be omitted from calculation when fixing the judi to which he was liable. If at that time he had refused to allow the shet-sanadi inam lands to be treated as Kadim, and if this contention had been accepted by Government, he would have been held liable to a higher amount of judi. He had, by his act in agreeing to the terms of that commutation, led Government to believe that the sanadi inam lands were Kadim, and induced them to fix a lower amount of judi than they would have fixed if those lands had been treated as Jadid. He cannot now be allowed to repudiate the agreement on the basis on which the judi was fixed to his advantage.
13. Mr. Coyajee for respondent No. 1 has referred to the ruling of the Privy Council in Mohori Bibee v. Dharmodas Ghose I.L.R.(1903) Cal. 539 : S.C. 5 Bom. L.R. 421 . in support of his contention that Section 115 of the Indian Evidence Act does not apply to a case where a statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement, and that there can be no estoppel where the truth of the matter is known to both parties. The facts of that case, however, were different. In that case one Brahmo Dutt had taken a mortgage from one Dharmodas Ghose. It was found that Brahmo Dutt knew at the time that Dharmodas Ghose was a minor. In order to safeguard himself Brahmo Dutt had taken a declaration from the minor that he was of age at the time. On a suit by the minor praying for a declaration that the mortgage entered into by him was void and inoperative owing to his being under age at the time, Brahmo Dutt contended inter alia that the minor's declaration as to his age was fraudulently made to deceive the defendant and disentitled the minor to any relief. Their Lordships on these facts held that there could be no estoppel in this case where the statement of the minor had been made to a person who knew the real facts and who had not been misled by the untrue statement. In the present case there is no question of any untrue statement. The agreement between the parties evidenced by the sanad was based upon the assumption that the sanadi inam lands were Kadim inam. The respondent inamdar had by his conduct led Government to believe that he accepted this assumption. By giving Government this impression and allowing them to act upon it, he obtained the benefit of a lower judi in perpetuity. The fact which he led Government to believe and act upon was that he agreed to the sanadi inam lands being treated as Kadim inam. He cannot now be allowed to contend that they are not Kadim.
14. In Sarat Chunder Dey v. Gopal Chunder Laha , their Lordships of the Privy Council in dealing with the question of estoppel said (p. 215):
The learned Counsel who argued the present case on either side were agreed that the terms of the Indian Evidence Act did not enact as law in India anything different from the law of England on the subject of estoppel, and their Lordships entirely adopt that view. The law of this country gives no countenance to the doctrine that in order to create estoppel the person whose acts or declarations induced another to act in a particular way must have been under no mistake himself, or must have acted with an intention to mislead or deceive. What the law and the Indian statute mainly regard is the position of the person who was induced to act; and the principle on which the law and the statute rest is, that it would be most inequitable and unjust to him that if another, by a representation made, or by conduct amounting to a representation, has induced him to act as he would not otherwise have done, the person who made the representation should be allowed to deny or repudiate the effect of his former statement, to the loss and injury of the person who acted on it.
15. Judged by this principle, the action of the respondent inamdar in agreeing as he did to the terms of the sanad of 1902, which was based on the assumption that the sanadi lands were Kadim inam, clearly estops him from now contending that they were not Kadim inam.
16. The ruling in Secretary of State v. Indoorai : (1926)28BOMLR1308 , on which the learned Assistant Government Pleader on behalf of the appellant has relied, is, in my opinion, applicable to the present case. The facts in that case were very similar. The plaintiffs, who were inamdars of certain villages, paid a quit rent to Government at the rate of two annas in a rupee of the gross rental after deducting certain cash allowances for annual expenses to be incurred in the villages. The amounts for such expenses were settled in 1886 and Alienation Registers were made according to this Settlement. In 1888 sanads were prepared in which the cash allowances were mentioned under the heading-'Alienations more ancient than the grant.' The Government decided that the cash allowances should be disbursed in the villages by their officers and not by the inamdars and that the allowances should not be paid to the inamdars. The inamdars were served with notices to refund the amounts which they had received since 1914. They, thereupon, sued Government for a declaration and injunction. In dealing with the inamdar's contention Fawcett J. observed (p. 1318):
First of all, they have accepted the settlement by which these amounts are deducted to their benefit for the purpose of fixing the payment of quit-rent to Government, and the reason for that deduction, as I have already mentioned is clearly that Government treated them as Kadim allowances. Having accepted this settlement and obtained the benefit of that part of it which allows this deduction, they cannot, under a well-known legal principle, repudiate merely that part of the agreement that they do not like, namely, that Government should have a free hand in regard to the payment and management of these particular allowances. This cannot be allowed under the principle laid down by the House of Lords in the well-known case of Crossly v. Dixon (1863) 10 H.L.C. 239 310 which has often been followed by this Court as, for instance, in G. I. P. Ry. v. Tamboli (1925) 28 Bom. L.R. 718 .
17. The respondent inamdar, in my opinion, is clearly estopped from contending that the shet-sanadi lands are not Kadim inam. The plaintiff's suit must, therefore, fail.
18. The appeal must be allowed. The decree of the lower appellate Court is reversed and the plaintiff's suit dismissed with costs throughout.