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Madhavrao Hariharrao Vs. Anusuyabai Eknath Jape - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case Number Second Appeal No. 269 of 1914
Judge
Reported inAIR1916Bom273; (1916)18BOMLR768; 36Ind.Cas.505
AppellantMadhavrao Hariharrao
RespondentAnusuyabai Eknath Jape
Excerpt:
.....provisions of formal resumption and re-grant by government free from debts and charges under the saranjam rules;;(2) that the; claim for payment of assessment was barred by limitation, for neither a special mode of devolution nor an incapacity for alienation prevented limitation from operating against the estate inherited by the plaintiff. - - it was complained in the plaint in 1888 that the defendants' predecessors-in-title held the lands wrongfully without payment of assessment, and it is not alleged that they have ever paid assessment since the decision of that suit. 7. there are one or two observations i wish to make in this case, and the first is, i think it would be much better and more convenient that in saranjam cases like this, the sanad or government resolution, whichever..........according to the plaint this is a hereditary saranjam village. saranjams are held subject to the saranjam rules published by government under the schedule to act xi of 1852. rule 2 says:-a saranjam which has been decided to be hereditarily continuable shall ordinarily descend to the eldest lineal male representative, in the order of primogeniture, of the senior branch of the family descended from the first british grantee or any of his brothers who were undivided in interest. but government reserve to themselves the right for sufficient reasons to direct the continuance of the saranjam to any other member of the family, or as an act of grace, to a person adopted into the family with the sanction of government. when a saranjam is thus continued to an adopted son, he shall be liable to.....
Judgment:

Basil Scott, Kt., C.J.

1. The plaintiff alleged that he was the saranjamdar of the ancestral saranjam village of Janu where the lands in question were situate; that the lands were given to the defendants' ancestor on tenure in consideration of rendering certain shetsanadi services and that the lands continued in the defendants' possession by virtue of that tenure; and that the defendants had no longer been rendering any service, and did not deliver possession of the lands though called upon to do so, and he prayed for possession of the lands. In the alternative he alleged that if it should be held that the defendants were not holding under a service tenure, he as saranjamdar was entitled to recover the assessment of the lands, and prayed for a declaration establishing his right to levy the assessment on the ground that he no longer wished to continue the land in inam with the defendants.

2. According to the plaint this is a hereditary saranjam village. Saranjams are held subject to the saranjam rules published by Government under the Schedule to Act XI of 1852. Rule 2 says:-

A Saranjam which has been decided to be hereditarily continuable shall ordinarily descend to the eldest lineal male representative, in the order of primogeniture, of the senior branch of the family descended from the first British grantee or any of his brothers who were undivided in interest. But Government reserve to themselves the right for sufficient reasons to direct the continuance of the Saranjam to any other member of the family, or as an act of grace, to a person adopted into the family with the sanction of Government. When a Saranjam is thus continued to an adopted son, he shall be liable to pay to the Government a Nazarana not exceeding one year's value of the Saranjam.

3. Rule 5 says:-

Every Saranjam shall be held as a life estate. It shall be formally resumed on the death of the holder, and in cases in which it is capable of further continuance, it shall be made over to the next holder as a fresh grant from Government unencumbered by any debts or charges save such as may be specially imposed by Government itself.

4. The defendants rely upon the decision in Suit No. 458 of 1888 between the plaintiff's brother Laxmanrao Hariharrao and the predecessor sin-title of the defendants for the recovery of possession of the suit land on the ground that the defendants had ceased to perform service and had been holding the lands wrongfully without payment of assessment. That suit was: decided in favour of the defendants, the Court holding that the lands were not held by the defendants on condition of rendering the service.

5. The first question that we have to decide is whether that decision operates as res judicata against the present plaintiff. That depends upon whether the present plaintiff can be said to claim under the plaintiff in the suit of 1888, and is litigating under the same title within the meaning of Section 11 of the Civil Procedure Code. It appears from the saranjam rules, to which reference has been made, that the succession to the saranjam is in the plaintiff's family, and the plaintiff would be entitled to succeed as the eldest lineal male representative in the order of primogeniture upon the death of his brother Laxmanrao, the plaintiff in Suit 438 of 1888. The estate is an estate which is bound according to the rules to continue in that family, and although on the death of a holder it is provided under Rule 5 that there shall be a formal resumption and regrant free from debts and charges to the next holder, there is no provision ( as pointed out by the learned District Judge ) for freedom from all tenures, rights, incumbrances and equities created in favour of any person other than Government such as we find in Section 56 of the Land Revenue Code as amended by Bombay Act VI of 1901. Subject to its being free from debts and charges, the new holder takes the estate as it was on the death of the previous holder, and he takes by virtue of his inheritance from the previous holder subject to the provisions of formal resumption and regrant by Government. Therefore, in our opinion, for the purposes of Section 11 of the Civil Procedure Code he claims Under the previous holder and is litigating under the same title as did the previous holder in 1888. That conclusion, arrived at upon the words of the saranjam rules, is in accordance with the conclusion of the Full Bench of this Court in Radhabai and Ramchandra Konher v. Anantrav Bhagvanl Deshpande I.L.R. (1885) Bom. 198 in the analogous case of vatan estates. For once it is established that the present saranjam holder obtains recognition by reason of his title by inheritance, there is no distinction between the two cases : the general principle stated by West J, at p, 224 is that a mode of devolution prescribed in particular cases does not make the property subject to it exempt from the effects of a judgment against the person in whom at the time the estate is vested.

6. Since the date of the decision in the suit of 1888 the defendants and their predecessors-in-title have been holding adversely. It was complained in the plaint in 1888 that the defendants' predecessors-in-title held the lands wrongfully without payment of assessment, and it is not alleged that they have ever paid assessment since the decision of that suit. The claim, therefore, for payment of assessment is barred by limitation for neither a special mode of devolution nor an incapacity for alienation will prevent limitation from operating against an estate : see Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande I.L.R. (1885) Bom. 198. For these reasons we affirm the decree of the lower appellate Court and dismiss the appeal with costs.

Heaton, J.

7. There are one or two observations I wish to make in this case, and the first is, I think it would be much better and more convenient that in saranjam cases like this, the sanad or Government Resolution, whichever it may be, which provides for the succession to the estate, should be produced. The result of its non-production in this case is probably quite inocuous, but it is this : that we have had to conjecture where we ought to have had certain knowledge. We have had to conjecture that the succession to the saranjam was allowed according to the saranjam rules : a fairly safe conjecture to make no doubt. But where certain knowledge can be put before the Court I think it ought to be.

8. Then as regards the meaning of the words in Section 11 of the Civil Procedure Code, ' between parties under whom they or any of them claim, litigating under the same title', I think those words are intended to cover, and do cover, a case where the later litigant occupies by succession the same position as the former litigant. In this case the former litigant was the saranjamdar for the time then being. The present litigant is the saranjamdar at the present time and is the successor of the earlier saranjamdar. I do not think that the words of the section are intended to make any distinction between different forms of succession. You may have a succession by the ordinary rules of inheritance, or you may have a succession by some very special rules as you have in the case of saranjams. That, I think, is not intended to affect the operation of the section of res judicata. I agree with the decree which was made.


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