1. The plaintiff, who is the respondent in the first of these appeals and the appellant in the second, purchased the inam village of Sakurdi at an auction-sale in execution of a mortgage decree against the defendants who are the inamdars. The sale took place on February 14, 1931, and formal possession was obtained through the Court on April 22, 1931. The revenue authorities declined to enter the plaintiff's name in their records as the holder of the inam village and she was unable to recover the revenue from the defendants. Accordingly she brought the suit from which these appeals arise for a declaration of her title as owner of the village and the income thereof and ancillary injunctions.
2. The principal defence and the only one that has been made the subject of argument in this appeal is that the village of Sakurdi is held by the defendants under an inalienable tenure and that the plaintiff has acquired no right therefore by her purchase at the Court-sale.
3. The grant is described in the village records as jat inam permanent. Exhibit 43 is a sanad issued by the Peshwa to the ancestor of the defendants. It refers to previous grants of the village in 1764 and 1766 and renews the grant as inam to the defendants' ancestor Gopinath 'and his sons, grandsons and so on from generation to generation.' So far at any rate it is clear that there is nothing in the tenure of the village which forbids alienation. The sanad no doubt mentions that the grant was made or continued in consideration of the fact that Gopinath was 'a great, worthy and respectable person 'and that 'it would be beneficial to the kingdom if provision were made for his maintenance.' But this is merely the purpose or motive of the grant and not in any sense a condition of the tenure. The date of exhibit 43 is 1779.
4. Exhibit 44 is an order of the Inam Commission dated 1857. It refers to the previous grants by the Peshwa and continued the grant of the village on the same terms with this addition 'so long as there shall remain in existence lineal male descendants in the male line of Gopinath Dixit.
5. Mr. Gharpure who appears for the inamdars, appellants in first appeal No. 162 of 1933, argues that this clause in the Inam Commission's order would be meaningless if the inam was alienable. I am not prepared to accept that contention. It seems to me that the learned trial Judge is perfectly correct when he says that the terms of the order, exhibit 44, do not lay down any restriction as to the grantee's power of alienation and merely state the period during which the village would be allowed to be enjoyed as Inam. The same view was taken by this Court (Murphy and Barlee JJ.) in Sardar Shridharrao Vithal Natu v. Indumati Vinayakrao Nilkanth Natu (1934) F.A. No. 45 of 1929, decided by Murphy and Barlee JJ., on November 28, 1934 (unrep.), where the effect of a similar order of the Inam Commission had to be determined. Mr. Justice Barlee said :.it would appear that the Assistant Inam Commissioner was not considering the mode of inheritance to the inam but was merely considering the duration of that inam... It seems to us extremely improbable that he intended to change the nature of the grant and that by implication and not by express words.
There it was not a question of alienation, but in Bhalchandra Vinayak Deo v. Shribhagwan Shri Laxminarayan Deo (1935) F.A. No. 58 of 1932, detided by Broomfield and Divatia JJ. on April 10, 1935 (unrep.), this Court had to consider a similar sanad with a similar order of confirmation by the Inam Commission. The village in that case had been alienated and this Court held that the alienee was entitled to a declaration of title and an injunction as sought in the present suit.
6. It appears that a few years after the order of the Inam Commission, notices were issued to the inamdars calling upon them to state whether they were willing to pay nazarana. These notices were issued in a form: called form No. 12 of which exhibit 62 is a sample. This particular notice was not addressed to any ancestor of the defendants but it has been admitted that a similar notice was received by them. In this notice Government stated that they had no objection to continue the inam lands in perpetuity subject to the payment of an annual nazarana and that on payment of this the landa would be regarded as in all respects private property. It was also pointed out that if the annual nazarana were paid, no inquiry would be made by Government as to whether the person holding the land was changed and whether he was an heir by inheritance, adoption or by collateral succession or whether he got the land by transfer by way of sale, mortgage, gift or otherwise and the holder of the land would not be troubled in any way. On the other hand it was pointed out that if the nazarana were not paid, both the transferor and the transferee would be liable to pay fines. As a matter of fact the inamdars in this case did not pay the nazarana, but as the notice itself shows this would not have the effect of rendering the inam village inalienable.
7. Our attention was drawn to the fact that both the defendants themselves and the plaintiff have applied to the revenue authorities to have the Summary Settlement Act applied to this village and their requests have been refused. As, however, it is admitted that the question we have to decide depends simply on the construction of the sanad and the order of the Inam Commission, the fact that the Summary Settlement has not been applied can make no difference.
8. We think there is no substance in appeal No. 162 of 1933 which must be dismissed with costs.
9. In the other appeal, first appeal No. 181 of 1933, Mr. Kelkar who appears for the appellant-plaintiff asks for an alteration in the form of the decree. The decree of the trial Court declares plaintiff's title to the income of the village and provides that defendants are restrained from obstructing the plaintiff in recovering the income through the proper channel, and from doing any act detrimental to the said right of the plaintiff. It is urged that this should be made more specific and that the words 'restrained from receiving the income 'should be added. It was held in Bhalchndra Vinayak Deo's case that the plaintiff in a suit of this kind is entitled to a permanent injunction against alienors not to take the income, and we agree that it is proper to amend the trial Court's decree by adding the words 'and from receiving the income' after the words 'detrimental to the said right of the plaintiff.' The decree should be amended accordingly, but as this is merely a matter of amending the form of the decree and the alteration would in all probability have been made had the plaintiff contented himself with an application to the trial Court, thereby making an appeal unnecessary, we propose to make no order as to the costs of this appeal.