1. The question involved in this second appeal is whether a watandar can validly devise his watan property by will in favour of a watandar of the same watan.
2. The lands in suit are admittedly Kulkarni watan lands. The Kulkarni service is commuted. Mere commutation of service does not affect the rule as to inalienability embodied in Section 5 (1) (a) of the Watan Act unless the right of alienation without the sanction of Government is conferred on the watandars by the terms of the settlement or has been acquired by them under the same terms. The property in suit is not alleged to be watan property assigned under Section 23 as remuneration of an officiator. Section 7 of the Watan Act will not, therefore, apply. It is common ground that Section 5 (1) (a) of the Watan Act applies to the property in suit. Section 5 (1) (a) of the Watan Act says that it shall not be complete to a watandar to alienate for a period natural life any watan to watandar of the same watan. Under Section 5 (1) (a) of the Watan Act the power of alienation of a watandar is restricted to his lifetime only in case the alienation is to a stranger and not to a watandar of the same watan. Ad, alienation to a watandar of the same watan is
ot prohibited. In the present case the devise by will is in favour of defendants Nos. 1, 2, and 3 who are watandars of the same watan. The plaintiff claims the property by inheritance ''along with defendant No. 4.
3. The question therefore, in the case is whether the word ' alienate ' excludes a devise by will. It is urged on behalf of the appellant that the word ' alienate ' means to transfer by sale. It is conceded on behalf of the appellant that the watandar can make a gift of the watan property to a watandar of the same watan. If a watandar can alienate the property by gift inter vivos, he would presumably have the right to alienate by will in favour of a watandar of the same watan. The word 'alienation,' according to Stroud's Judicial Dictionary, Vol. I. means 'to make a thing another man's.' 'Alienate according to Wharton's Law Lexicon, means ' to transfer property.' Alienation would, therefore, include a devise by gift if the effect of it is to make the property another man's by means of a bequest. It is urged on behalf of the respondents that if the word ' alienation ' excludes a bequest it would lead to the anomalous result that a bequest in favour of a stranger would not be prohibited by Section 5 (1) (a) of the Watan Act.
4. In Bhimappa v. Mariappa (1866) 3 B.H.C. 128 it was held that the interest enjoyed by one of a body of coparceners, in possession of land attached by way of emolument to a hereditary office, cannot be bequeathed to one or more of the other coparceners, as the estate held by each sharer is only a life interest, subject to the right of the Collector, under Act XI of 1843, to assign a fit remuneration from the rent and profits for the maintenance of the person appointed to conduct the duties of the office. This decision was prior to the enactment of Bombay Act III of 1874. The original Section 5 of the Watan Act III of 1874 ran as follows :-
No watandar shall, without the sanction of Government, sell, mortgage, or otherwise alienate or assign any watan or part thereof or interest therein to any person not a watandar of the same watan.
5. The words ' otherwise alienate' would include a devise by will, and an alienation m favour of a watandar of the same watan would be valid under the original section and also under the present section substituted by Bombay Act V of 1886. In Bai Devkore v. Amritrank Jamiatram ILR (1885) 10 Bom. 372 a bequest in favour of a stranger was described as an alienation by will, and it was held that the alienation by will of what was a watan held for service in favour of a stranger being in its inception invalid as against the heirs did not become valid because of a change in the tenure of the estate after his life interest had terminated. Though the, on the death of the testator under a will, the beneficial interest is created in favour of the devisee in the lifetime of the watandar and stands so long as it is not revoked by the testatory during his lifetime. The alination, The alienation, therefore, by will by a watandar during his lifetime would be I valid beyond the term of his natural life if it is in favour of a watandar of the same watan.
6. I think, therefore, that the view taken by both the lower Courts is correct, and this appeal must be dismissed with costs.