1. The plaintiff seeks, as khot of the village of Ransai in the Panvel Taluka, to recover, with mesne profits, certain lands which the defendant, while lessee of the village, acquired from the Collector of Thana and the Superintendent of Revenue Survey. The plaintiff says that the acquisition was fraudulent and that the defendant should be declared to hold the lands as his trustee. He says further that he became aware of the fraud at the end of April 1871, when the village was restored to him by the defendant, without the said lands.
2. The defendant, among other answers to the claim, says that it is time-barred, and that the property in suit was not acquired by him wrongfully or fraudulently; that he passed a kabulayat to the Collector for some of the lands in 1859; and that some were granted to him by the Survey Superintendent at the time of the survey settlement in 1861-62; and, further, that the land was the property of Government; and that by the express terms of the lease on which he held the village from the plaintiff he was entitled to take up the land direct from the Government; and that, after giving up the management of the village, he annually tendered the Government assessment due on the land to the plaintiff as khot, but that the plaintiff refused to accept payment.
3. The suit was filed, in the first instance, on the 27th March, 1874, in the District Court of Thana, against the present defendant and the Collector and the Superintendent of Survey. It was decided by the Assistant Judge in the plaintiff's favour on the 14th January, 1875. In appeal, the District Judge reversed the decision on the ground that, as against the Collector and the Superintendent, the suit was barred by time, and that, as against the present defendant alone, the District Court had no jurisdiction to hear it. Thereupon the plaintiff, on the 5th February, 1879, filed the suit in the Court of the Subordinate Judge of Panvel, who dismissed it as barred by time, but his decision was reversed on appeal on the 30th August, 1882, and the suit remanded for trial on the merits. An appeal against the order of remand was dismissed by the High Court, without prejudice to the right of the parties to raise the question of limitation again in a final appeal. The Subordinate Judge, Mr. de Sa, who has now heard the suit, has decided it in the plaintiff's favour. His decision was appealed against to the District Court, but the appeal was transferred to this Court on the 1st October 1884.
4. In the view we take of the case, it is unnecessary for us to consider the question of limitation. We have no doubt that the defendant is entitled to retain possession of the lands acquired by him in 1859 and 1861-62. Whether he holds those lands conditionally on the payment of the survey assessment, said to have been tendered by him, from time to time, to the plaintiff, or is liable to pay the rent payable by any particular class of khoti tenants, is a question which does not fairly arise between the parties in the present suit, and We do not decide it.
5. The village of Ransai was granted to the plaintiffs father by the Bombay Government in 1832. The sanad is filed as Exhibit No. 16, and contains two principal clauses;-one dealing with the grant of certain lands in inam, and the other relating to the khoti grant. By the first clause, the whole of the land lying waste in the village in 1830-31 was granted in absolute inam, subject to a nazrana, equal to one year's assessment, on alienation by sale. The extent of this land was ascertained by deducting from the amount shown to be waste in a survey statement of the year 1827-28 certain lands which had since been granted on maphi istava tenure, under which the occupant at first holds the land free of assessment and then pays a gradually increasing tax, which at last rises to the full assessment. It is one of the questions for consideration in this appeal whether this maphi istava land was included in the khoti grant. The inam grant comprised 73 bighas and 4 3/4 pands. By the second clause of the sanad, all the rest of the village, with its ordinary revenue (ain jama) and its extraordinary revenue (sivai jama), but not including its abkari, which was reserved for Government, was granted in perpetual khoti from the year 1831-32 on certain terms, which are set forth in twelve sub-clauses, of which it is necessary to refer only to the following: By the first sub-clause the khot was bound to pay annually to Government the sum of Rs. 249 1/2 and 35 reas, that being, according to the jamabandi or revenue settlement for the year 1830-31, the revenue actually leviable by Government in that year on account of the assessment on kharif and varkas land and on toddy trees, and on account of certain dues, taxes and fees, after making certain deductions on account of paldars or persons exempt from taxation. In addition to this fixed annual payment, the khot was bound, by the seventh sub-clause, to pay to Government the variable sums leviable from the persons to whom lands had been already granted by kowl or lease on maphi istava tenure. We think that, on the right construction of this sub-clause, the khot was not merely bound to hand over to Government the sums actually levied from these kowldars, but that ho was bound to collect the gradually increasing revenue due by them, using for the purpose the power which he could avail himself of according to law, and that, whether he collected such revenue or not, he was responsible for it himself to Government. The language of the sub-clause might well have been clearer; but it distinctly imposes on the khot, at all events, the duty of collecting the whole amount due by the kowldars in any year. The sum actually collected was necessarily payable by him. That he was also liable for sums payable to Government on the kowls, though he might fail to collect them, we infer from the context. The position of the sub-clause in the sanad and the expression used with reference to the grant in khoti,-that it was of the 'whole' (darobast) of the village, exclusive of the lands granted in inam, (and of the abkari revenue),-alike show that the maphi istava lands were included In the khoti grant, and that the khot's interest in them, whatever may have been the extent of it, was not separable from the khoti estate. That being so, the revenue due to Government in respect of those lands was secure, after the grant in khoti was made to the plaintiff's father, whether the khot collected the revenue or not. After making the grant, the Government no longer looked, (or at all events it was not necessary for the Government to look) to the kowldars for satisfaction of its revenue demand, but to the khot; and there can be no doubt that the defendant himself, when lessee of the khot, at one time recognized his liability in this matter; for he paid assessment to Government on some of the lands in suit, which were maphi istava lands, even when he had failed to collect it from two of the kowldars, the lands having lain waste 'for many years,' as the defendant says in his application, of the 13th December, 1858, to have the lands transferred to his name. (See Exhibit No. 134.)
6. It appears that some of the lands in suit are included in the suti lands referred to in the ninth sub-clause of the clause of the sanad relating to the khoti grant. That sub-clause affirms the right of sutidars as owners (mukhtyars) of their lands; and also declares their liability to any future survey settlement. It is not contended that these lands lie outside the khoti estate, and apparently they are included in the lands in respect of which a fixed annual revenue was leviable from the khot. It was not stated to us, in argument, when the suti lands in suit were acquired by the defendant. Perhaps we are not wrong in assuming that these are the lands for which the defendant says he obtained a lease from the Superintendent of Survey in 1861-62, the maphi istava lands or the greater part of them having been previously obtained from the Collector in 1859, after the right of occupancy of the defaulting holders had been Hold and bought in by Government. It is not apparently contended on behalf of the plaintiff that he himself possessed any right, as sutidar, or any other private right, in any of the lands acquired by the defendant, who seems, in some way not explained to us by the counsel on either side, to have acquired the right of a sutidar in respect of certain lands, whether by purchase from previous sutidars or by taking up land given up by them or otherwise, and to have had his right recognized at the time of the survey settlement when the land was entered in his name in the Government books. It is as khot, and not as sutidar, that the plaintiff attacks the defendant's position, and he can only succeed, whether as regards the kowli or the suti land, by showing that the defendant's acquisitions were in contravention and in fraud of his rights as khot.
7. Those acquisitions were made, as the plaint sets forth, while the defendant was in possession and management of the village as the plaintiff's lessee. The first lease or rather kabulayat (Exhibits 22 and 23) was one for five years and was granted in 1845. The second (Exhibit No. 23) was for three years and was granted in 1858. But on the expiry of that lease the defendant continued to be the plaintiff's lessee from year to year till 1871; and the conditions of his tenure of the khotship during that period must be held to have been regulated by the terms of the second lease. By the fifth clause of that lease the defendant bound himself to 'carry on the management of the village and render a detailed account of the balance of the village revenue every year.' It is contended for the plaintiff that this engagement to furnish accounts shows that the defendant occupied the position of a trustee towards the plaintiff, and that as the plaintiff had a reversionary interest in the kowli and suti lands, it was not Competent to the defendant, when those lands ceased to be the property of their former owners, to acquire them on his own account. If there was a subsisting relation of trusteeship between the parties, then no doubt this contention would be good; for, under the khoti system, even in the Northern Konkan, the khot has the power to assume for himself the occupancy of neglected and vacated land comprised within the khoti estate. The estate created by the sanad in the present case was apparently of the same kind as the khoti estates in the Alibag Collectorate of which a description is given in Tajubai's Case 3 Bom. H.C. Rep., A.C.J., 132 . In the judgment, in appeal, of the District Court in that case, which was confirmed by a majority of the Bench of this Court which heard the special appeal, it is stated that 'the privilege of the khot to enjoy the first refusal of all vacant and available land in his khotship is a natural incident of his position.' In the judgment of the High Court, delivered by Newton, J., for himself and Arnould, J., it is stated that 'the right to cultivate such waste or other lands as may be at the khot's disposal, or to give them out in cultivation under such terms as may be most to his advantage, must * * be viewed as the recognized mode of his remuneration for the services rendered.' And Tucker, J., who dissented from that judgment, observed that 'in the lands where the tenant-right existed, the khot would have a reversionary interest, if the occupant abandoned them, or refused to pay the prescribed rent, and over the other lands his ownership would be complete.' In the present case, then, it may be conceded that the plaintiff had a reversionary interest in the kowli lands, which had been practically abandoned by their former owners, and that if the suti lands were similarly abandoned, or if the former owners had no right to alienate them without his consent, he had such an interest also in those lands; but it does not follow that, while managing the village as the plaintiff's lessee, the defendant could not acquire on his own account the lands in suit. The engagement to furnish accounts of the balance of the village revenue at the end of each year was, as we read it, simply an engagement to furnish the plaintiff with information which would be of use to him, and which it would be indeed necessary for him to possess, when he resumed the management of the village on the expiry of the three years for which the village was leased to the defendant in 1858. It imported nothing more than that; and the whole transaction of which Exhibit No. 23 is the evidence is merely an assignment, in consideration of a fixed annual payment to be made by defendant to plaintiff, of the rights and liabilities of the latter, to be exercised and discharged for a certain period by the former. For that period and thereafter, till 1871, the defendant was, as he is described in the plaint, the maktadar or tenant of the plaintiff's khotship; and though a certain confidence was necessarily reposed in him in connection with a tenancy of this nature, and though he was bound jealously and scrupulously to protect the plaintiff's interests, so far as they were in his keeping, yet he was not bound, as it seems to us, by the strict rule which prohibits a trustee from acquiring for himself an estate of his cestui que trust. Indeed, there is a clause in the kabulayat, No. 23, which seems to specially authorize such an acquisition as was made by the defendant in respect of the kowli lands in the present case. Clause 7 is in the following terms: 'I will bring under cultivation and into a prosperous state the waste culturable and unculturable land of the aforesaid village. I will take the proceeds of the same during the years of my contract. After the expiry of the years of the contract, you are to take the assessment of the fields according to the practice of the village. I have nothing to do with the same. I will not let (the village?) or lease to any body for a longer period than for the period of the contract. If I let it, I will make good the damages you may suffer.' The earlier part of this clause would equally apply to land allowed by an occupant to become waste during the period of the defendant's tenancy as to land lying waste in 1858. It would apply, therefore, to the kowli lands in suit, and may also have applied to the suti lands acquired by defendant. It distinctly permits the defendant to bring waste lands into cultivation for his own full benefit pending the lease, and it seems also to permit him thereafter, if himself the cultivator, or else, the cultivator put in by him, to retain them on paying to the plaintiff the assessment 'according to the practice of the village.' It can scarcely be questioned that, in the present case, the defendant would have been justified in putting in some other tenant than himself on the lands vacated by the two kowldars. It would have been necessary for him to do so to protect his own interests as managing khot for the time being, and in order to recover 'in the recognized mode' his 'remuneration for the services rendered' by him in that capacity. Had he allowed the land to remain waste, he would not only have suffered loss, as he actually says he did 'for many years,' by having to pay the assessment due on the land to Government, but he would have neglected also the interests of the plaintiff himself, who, on resuming the khotship, would have found this land lying waste and might have had some difficulty in procuring a tenant for it. By taking up the land himself, he did not place himself in a position inconsistent with such duty as he owed to the plaintiff, or render himself less fitted to discharge that duty. As assignee of the rights and powers of the khot the defendant's power to grant waste lands to tenants other than himself by lease is indeed limited by Clause 7 to the period of his own lease. That restriction seems, however, to apply to any favourable terms that might be granted by the defendant as regards rent, as compared with the customary rent payable in the village. For the earlier part of the clause would apparently be applicable alike to tenants put in by the defendant as to the defendant himself. The intention seems to have been that the defendant was either to take up waste lands himself or put in tenants;-that if he put in tenants on lease, the special advantages of any leases were to expire with his own lease. The actual occupation of land was not, however, to be interfered with; inasmuch as the tenants were to continue to pay rent, though at customary rates, which they could not of course do if any tenancies created by defendant were to be altogether destroyed on the expiry of his lease. Such a construction is a reasonable one to put on the somewhat obscurely worded provisions of Clause 7 of the kabulayat; and the right thereby given is no more than what, we should think, would ordinarily be conferred on any managing khot, to enable him, even for a short period, to efficiently discharge his duties as khot. Such a khot ought, without any express authorization, to be able to create tenancies in land, even though the reversionary interest in it is vested in the person whose lessee he is. If such a khot himself takes up land, he can do so consistently with the conditions of the khoti tenure; for a khot, as regards lands in his private occupation, may be a tenant to himself qua khot: see Ramchandra Narsinha Mahajan v. The Collector of Ratnagiri 7 Bom. H.C. RA C.J., 41 .
8. We are inclined to think that, in the present case, the defendant could, without the intervention of the Collector, have taken up the kowli lands in suit and become himself the tenant, and that he also could have acquired the suti lands from former sutidars or taken them up, if waste, without the intervention of the Survey Superintendent. The circumstance that, when acquiring the lands, he invoked assistance for which there may have been no legal authority, would not, however, invalidate his title if it cannot be impugned on other grounds.
9. It is impugned on the ground of fraud; and no doubt, if the imputation of fraud is established, the defendant cannot retain any advantage he may have acquired. As we have said, though the defendant was not a trustee, yet a certain confidence was necessarily reposed in him as a tenant; and the question is whether he, as plaintiffs tenant, has 'in a secret manner, for his own advantage,' sacrificed the plaintiff's interests. If so, then he cannot be permitted to hold any advantage he has acquired by such means. (See Story's Equity Jurisprudence, Section 323). That is the rule to be applied to the case, and there is no evidence apparently to justify our finding that the defendant acted in a surreptitious or secret manner in acquiring the lands in suit. He was bound, no doubt, to pay the assessment on the kowli lands; and if his own wilful or negligent omission to pay the assessment had occasioned the sale by the Revenue authorities and he had then purchased, he would then in equity be treated as trustee of the land purchased by him-Balkrishna Vasudev v. Madhavrav Narayan I.L.R. 5 Bom., 73 But that was not the case here. He brought the omission of the kowldars to pay him assessment to the notice of the Revenue authorities, but not apparently with the object of causing the land to be sold. The right of occupancy seems already, when he made his petition of the 13th December, 1858, to have been sold (see Exhibit No. 134) by the Revenue authorities, although the land formed a part of the khoti estate. There is nothing to show that the defendant caused the land to be sold. He applied to have it transferred to him;-unnecessarily, so far as we can judge in the present case, to which the Collector is no longer a party;-and, after enquiry, the land was granted to him in preference to another applicant, because he was willing to pay assessment for the then current year when taking up the land. His action in applying to the Revenue authorities may have been unnecessary, but it was not secret; and is rather, as it seems to us, a sign of his good faith than of any fraudulent intent. He may well have thought that an application to the Revenue authorities was necessary in the case of land granted by Government on special terms before the grant in khoti was made to the plaintiff. And his action, as we have already said, was distinctly to the advantage of the plaintiff. It certainly placed the plaintiff in no worse position than he was when the original kowldars were in occupation; and it may place him in a better position, if any rent higher than the full Government assessment should now be leviable from the defendant.
10. Nor can we find that, by obtaining the transfer to himself of certain suti lands, whether from former sutidars or otherwise and obtaining an acknowledgment from the Superintendent of Survey of his right to retain the possession of those lands, if that was really what he did, he acted secretly or sacrificed the plaintiff's interests, though it is quite possible that the action of the Superintendent himself may have had no warrant in law. As to that, or, as we before said, as to the rents legally leviable from defendant, we decide nothing.
11. We are of opinion that no ground has been shown for ousting the defendant from the lands in suit; and that finding is sufficient for the decision of this case. The decree of the lower Court is reversed. The plaintiffs claim is rejected with costs throughout.