1. The suit from which this appeal arises was brought by respondent No. 1 claiming as the adopted son of one Anandrao who died in 1912, to establish his right to the property of his adoptive father in the hands of the defendants. Anandrao died without issue but leaving three widows, the eldest of whom, Krishnabai adopted the plaintiff on November 4, 1924. Defendants Nos. 1 and 2 are the other two widows. Defendant No. 3 is the brother of defendant No. 1 and is in possession of some of the property sold to him by her in 1920. The other defendants are tenants in occupation of some of the lands. The lands in suit are situated in the villages of Chikurde and Peth. They were formerly Deshmukhi watan, but the watan lapsed to Government in 1923. The only contesting defendants were Nos. 1 and 3. At the trial of the suit they made various allegations, denying the adoption, alleging that Krishnabai had been abandoned by her husband, that she had been prohibited from making any adoption, that the sale by defendant No. 1 to defendant No. 3 was for legal necessity, and so on. But the trial Court has decided all these issues of fact against the defendants, and their contentions in that respect are no longer persisted in.
2. In order to understand the points raised by the learned counsel on behalf of the defendants in this appeal, it is necessary to state some further facts. The whole of the Chikurde watan originally belonged to Vithalrao Deshmukh, who had four sons, Ganpatrao, Nilkanthrao, Anandrao and Shankarrao. The estate was by custom impartible, and the rule of primogeniture applied to it. In the year 1894 a suit was brought by the younger sons Nilkanth and Anandrao, (Shankar being then dead), against their father and elder brother to obtain a share of the lands for their maintenance. The dispute was referred to arbitration and the award was made a decree of Court on March 15, 1894. I shall refer to the terms of this decree (exhibit 46) later on. At present I merely say that a specific share consisting of lands in the villages of Chikurde and Peth was assigned to Anandrao. Anandrao was in possession and enjoyment of these lands until his death on June 6, 1912. During his lifetime he was entered in the Record of Rights (exhibit 207) as occupant of the land, the description of the nature of his right being 'Hisedar (sharer) by partition.' After his death the name of Firan-gojirao, the son of Nilkanthrao, was entered in his place. The entry in column 10 as to the nature of his right was ' By heirship to Anandrao who was the sharer inamdar according to the decree in Civil Suit No. 137 of 1894. ' Firan-gojirao died in 1919. On September 23, 1921, Government made an order declaring his daughter Bhimabai to be entitled to succeed to him, and her name was entered in the Record of Rights in place of that of her father. By Government Resolution dated October 11, 1923, that order was cancelled and the watan was declared to have lapsed. The Government Resolution is exhibit 217, In spite of this Resolution Bhimabai continued to be shown in the Record of Rights in column 9 as occupant. In column 10 there was a reference to the Government Resolution and it was noted that the lands had been ''resumed ' and had been ' omitted from mam. ' In the appropriate column in the Register the full assessment was shown as leviable on the lands. As 4 have already mentioned, the plaintiff was adopted by Krishnabai on November 4, 1924. In spite of the entries in the Record of Rights, to which I have referred, the evidence shows that Anandrao's widows continued to be in de facto enjoyment of the lands. Firangoji collected the rent from the tenants and paid it to the widows. After his death defendant No. 3, to whom some of the lands were sold by defendant No. 1 in 1920, appears to have managed the rest of the estate on behalf of the widows and paid the income over to them. Bhimabai's estate is being managed by the Court of Wards. But the evidence of exhibit 92, who is a clerk to the Collector and Court of Wards, shows that the income of the lands has been and still is paid to the widows of Anandrao and not to Bhimabai. His evidence is important and some of his statements must be referred to. He says:
The practical effect of the lapse was got ascertained by the Collector from Government and from them it was learnt that the property that was subject of watan inam was converted into khalsa and raitawa property. It was, therefore, made subject to payment of full assessment. I have seen the award of 1894. The lands thereby allotted to Anandrao have been allowed to be retained in possession of the three widows of Anandrao. The khata of those lands too stands in Bhimabai's name. Defendant No. 3 pays the local fund cess in respect of the lands allotted to Anandrao by the said award, to the Court of Wards on behalf of the three widows. The Court of Wards in its turn pays that amount to Government on behalf of the ward.
Further on the witness says:
The profit of suit lands is not being received and credited by the Court of Wards and on behalf of the ward. The Court of Wards made no change in the possession of suit lands that were allotted to Anandrao by the award of 1894, nor in the possession allowed to be held by his widows after his death.
In cross-examination he said :
There is no express order by the Collector or by Government confirming the possession of suit lands with Anandrao's widows. The Collector has allowed the suit lands to remain with Anandrao's widows as per the award. The Collector supposed the widows as owners of suit property as per the award.
3. The main contentions of the learned counsel for the appellants in this appeal are these: (1) The award decree was not an absolute grant to Anandrao and his heirs but a grant for the maintenance of himself and his descendants only, giving no right of inheritance to his widows. On his death without issue the estate lapsed to the only male member of the family then surviving, Firangojirao, the son of Nilkanth. Firangojirao became the owner and was succeeded by his daughter Bhimabai. (2) In 1923 Government resumed the watan, and the rights of Anandrao's family, even assuming that any rights remained, were then extinguished. The subsequent adoption of a son to Anandrao, therefore, gave him no title to the suit property.
4. For his first contention Mr. Jayakar relies on the construction of the award decree (exhibit 46). This begins by reciting that the income of the properties is impartible and that by the custom of the family the law of primogeniture applies to it. It then states that the plaintiffs Nilkanth and Anandrao are to be given some of the income for the maintenance of themselves and their descendants (here the word used is santati), and a land for building a house for residence. Then follows a description of the lands allotted to Nilkanthrao, at the end of which it is stated: 'He should accept the same and the permanent vahiwat should continue with him and his heirs.' (Here the word used is waras). Then the lands allotted to Anandrao are specified, and there is a similar statement in his case that he should accept the same and the permanent vahiwat should continue with him and his heirs. It was provided that the judi on the lands given to Nilkanthrao and Anandrao was .to be paid by the defendants, but they were to pay the local fund cess. Then the award decree recites that the remaining immoveable and moveable properties, the cultivated and uncultivated lands, the rocky lands, the hilly forest, the Samsthan Vada, all the fallow land in the Gavthan, all the servants kept for service by the grant ' of lands from the Samsthan, the lands which are with them, all the income of the lands for houses and open spaces, the rights of taking service from the village officers and Balutes, all the Haks which are on the record and which are continued by vahiwat, and so on-were to remain with Ganpatrao the eldest son. He and his father were to do vahiwat of all the property excepting that which was given to the plaintiffs in the suit, and it was all to continue permanently with Ganpatrao and his heirs. It was also provided that if defendant No. 1, i. e. the father Vithalrao, assigned his right to Ganpatrao, all the ownership (malki) would pass to Ganpatrao from that time. Then there is an important concluding paragraph:-
It is decided as aforesaid to give the lands to both the plaintiffs. The right of cultivating and producing crops on these lands is with the plaintiffs and their heirs (waras). The plaintiffs and their heirs are to be maintained on that income. The liability for that does not lie in any way on the property of the defendants. Defendants are the owners (malak) and vahiwatdars of the Samsthan. Therefore, there is no risk attaching to the plaintiffs for the debts due to or due from the Samsthan.
5. I think it is obvious that this decree does make a clear distinction between the rights accorded to the two younger sons and those accorded to the eldest son. The words malak and malaki which are used in respect of the latter are nowhere used in respect of Nilkanthrao or Anandrao. I think that Mr. Jayakar is right in his contention that the grant to the younger sons was not an absolute grant but a grant of the lands for their maintenance. However, the language used in the decree shows that the grant was permanent so long as any heir remained. I am not prepared to accept die learned counsel's contention that the decree gave no right to the widows of Anandrao. It is true that the word ' Santati', which is used at the beginning of the decree, means progeny or offspring and would not include widows of the grantee. But the word ' Waras ', which is used elsewhere, is a general word which would include the widows. Ekradeshwar Singh v. Janeshwari Bahuasin (1914) L.R. 411. A. 275 : 17 Bom. L.R. 18, cited by Mr. Jayakar, does not, in my opinion, justify the conclusion that the widows should be held to be excluded. In that case the widows were excluded by the custom of the family. Here no such custom is proved, nor I think can it be presumed to exist. The learned counsel also cited Rama Rao v. Raja of Pittapur where it was held that 'an impartible Zamindari is the creature of custom; it is of its essence that no coparcenary in it exists. Apart, therefore, from custom and relationship to the holder, the junior members of the family have no right to maintenance out of it.' A fortiori, Mr. Jayakar says, the widows would have no right to maintenance. In the present case, however, no one is claiming a right to maintenance. The plaintiff's case is that the widows of Anandrao took as his heirs, and he takes as Anandrao's adopted son. I do not find anything in the decision or in the reasoning in this case which is inconsistent with the proposition that the grant to Anandrao and his heirs might include his widows.
6. Further, it seems to me to be doubtful whether it is open to the defendants to set up a plea that the widows took nothing under the decree. Until the case came to be argued their contention had always been that Anandrao's widows took the property as his heirs. In exhibit 33, which is the sale-deed in favour of defendant No. 3, defendant No. 1, the vendor, stated ' we three widows are the heirs of our husband.' In the statement (exhibit 211), which she made before the Mamlatdar in February 1923, she stated that she and the other widows of Anandrao had been doing vahiwat under the award and that Firangojirao had no connection with the property. As to defendant No. 3, he has admitted in his deposition in this suit that he was collecting the income of the lands as the agent of defendant No. 1. Mr. Jayakar says that he has not admitted that he was the agent of the other widows. But he made a statement before the Mamlatdar in 1922 (exhibit 210) in which he clearly stated that Anandrao's widows were his heirs and in the vahiwat of his lands. Neither of them has ever asserted at any time that the widows had no right to Anandrao's estate because it had lapsed to the senior branch. There was nothing to that effect in the pleadings. Both these defendants put in a supplementary written statement in which they alleged that the plaintiff's claim was defeated by the lapse of the watan to Government, but did not allege any lapse of Anandrao's estate to Firangoji.
7. In my opinion the widows of Anandrao were entitled to succeed to him under the terms of the award decree. I do not consider, however, that the point is really material. The word ' santati ' would anyhow include an adopted son, as Mr. Jayakar admits.
8. In support of the proposition that the estate lapsed on the death of Anandrao, we have been referred to a note in Sir Dinshah Mulla's ' Principles of Hindu Law ' at page 602, to the effect that grants made out of the revenues of an impartible estate for the maintenance of the junior members of the family and their direct male lines revert to the estate on the death of the last male heir of the grantee. Two cases are cited in support of this proposition: Durgadut Singh v. Rameshwar Singh and Ekradeshwar Singh v. Janeshwari Bahuasin (1914) L.R. 411. A. 275 : 17 Bom. L.R. 18. But in the first of these cases the point was conceded without discussion and in the second it was held that the estate reverted by reason of the custom of the family. These cases, therefore, do not really support the proposition that the estate of Anandrao lapsed on his death. As I have said the defendants have never really alleged that. Their case has been that Firangojirao managed for the widows as their agent and that defendant No. 3 afterwards did the same. There are a number of letters from Firangojirao and defendant No. 3 on the record which show that they were collecting the income of the lands from tenants and remitting it to the widows. The natural construction to be put upon these letters seems to me to be that they held themselves accountable to the widows. Really the only support for the doctrine of reverter is to be found in the entries in the Record of Rights to which I have already referred. But I think that any presumption which might have arisen from these entries is rebutted by the admitted fact that the widows remained in actual enjoyment of the property. Bhimabai is not a party to this suit. But so far as the evidence before us goes, I think the only reasonable conclusion is that the enjoyment of the property by the widows was not permissive but in their rights as heirs of Anandrao.
9. It was suggested on behalf of the respondent that there could be no lapse as long as the widows were living and capable of adopting. In Pratapsing Shivsing v. Agarsingji Raisingji (1918) L.R. 46 IndAp 97 : S.C. 21 Bom. L.R. 496, their Lordships of the Privy Council have cited a passage from West and Buhler's Hindu Law to the effect that ' the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible.' As this case was decided in 1918, the fact that the doctrine is mentioned without criticism is perhaps of more significance than the observations said to throw doubt upon it in Bamun-doss Mookerjea v. Mussamut Tarinee (1858) 7 M.I.A. 169. But it is not necessary to adopt the doctrine in its extreme form. Assuming for the sake of argument that the widows did not succeed as Anandrao's heirs and that the estate had technically reverted to the senior branch, nevertheless, in my opinion, the adoption of the plaintiff by Krishnabai in the circumstances of this case was valid and had the effect of restoring the estate to the family of Anandrao. It appears to me that Pratapsing's case is clearly in point. The facts in that case were that land was granted out of the impartible family estate to younger sons for jivai or maintenance, and by the custom of the family it reverted to the estate upon a failure of the grantee's male descendants, widows being excluded from inheriting. In October 1903 the holder of a jivai grant died without issue, but leaving a widow. The widow remained in possession and in March 1904 she adopted a son to her deceased husband. It was held that the adopted son inherited the jivai grant. At page 107 of the report their Lordships laid down the proposition that the right of the widow to make an adoption is not dependent on her inheriting as a Hindu female owner to her husband's estate and that she can exercise the power, so long as it is not exhausted or extinguished, even though the property was not vested in her. At page 108 their Lordships considered the argument that the adopted son could not take the property after the reversion:
It was contended with considerable force and some degree of plausibility that in the case of a jivai grant or death of the holder thereof there is no property left for the adopted son to take, as it reverts to the grantor's estate immediately the jivaidar dies. But it was admitted that a posthumous son would prevent the reversion. If the widow happened to be enceinte the reversion would naturally remain in suspense until the birth of the child, to see whether it was a male or a female. It is futile, therefore, to say that property reverts to the grantor's estate immediately the breath leaves the body of the jivaidar. Here the adoption was made within the period of natural gestation, and the property was at the time of the adoption in the possession of the widow and still is in the possession of the adopted son. It may be that if a Hindu widow lies by for a considerable time and makes no adoption, and the property comes into the possession of some one who would take it in the absence of a son, natural or adopted, and such person were to create rights in such property within his competency whilst in possession, in such case totally different considerations would arise. But here there is nothing of the kind to modify the true application of the Hindu law.
10. Mr. Jayakar has attempted to distinguish this case on the ground that the adoption was made within the period of natural gestation. But it is clear that the decision of their Lordships cannot be distinguished on that ground because they have referred to and followed an earlier case, Sri Raghunadha v. Sri Brozo Kishoro , where the adoption was made two years after the death of the husband, and it was held nevertheless that it had the effect of defeating the right of the younger brother to the estate. As regards the widow being in the possession of the property, that also was so in the present case to all intents and purposes. For although the lands were entered in the Record of Rights in the name of Firangojirao and Bhimabai, the evidence shows that the income was enjoyed by the widows apparently in their own right. In the recent case, Amatendra Mansingh v. Sanatan Singh , Pratapsingh's case is referred to at p. 255 as an authority for the proposition that the actual reverter of the property to the head of the family did not bring the power of adoption to an end. Mr. Jayakar says that the adoption may be valid, and indeed he admits that it is valid, and yet it may give no right to the estate which formerly belonged to the adoptive father. He relies on Chandra v. Gojarabai I.L.R. (1890) 14 Bom. 463. No doubt we have recently held in Shankar v. Ramrao : AIR1935Bom427 that the rules laid down in Chandra v. Gojarabai still hold good in spite of the recent decisions of the Privy Council on the law of adoption. But those rules do not, I think, apply to the present case, which is covered by the ruling in Pratapsingh's case. Although the plaintiff was not adopted until twelve years after the death of Anandrao, so that it may certainly be said that the widow had lain by for a considerable time without making an adoption, it cannot be said that the property had come into the possession of some one who would have taken it in the absence of a son, or that rights of third parties had been created in the property. As in Pratapsingh's case, therefore, there appears to be nothing to modify the true application of Hindu law. I hold for these reasons that the adoption is valid and that the plaintiff is entitled to the estate of Anandrao, unless that estate was extinguished by the resumption of the watan grant by Government.
11. That brings me to the second point in Mr. Jayakar's argument. In support of his contention that the resumption by Government had this effect the learned counsel has relied on Sir Sayaji Rao v. Madhavrao : (1928)30BOMLR1463 and The Secretary of State for India v. Girjabai (1927) L.R. 54 IndAp 359 : 29 Bom. L.R. 1503 two cases which deal with saranjam grants. He relies particularly on the principle laid down in the latter case, that on the death of a saranjamdar, Government is entitled to resume not only the revenue but also all rights and benefits which the grantee has secured by virtue of the grant. He argues that the observations of their Lordships in this connection at page 369 of the report apply in principle to other inam grants also. With that view I am unable to agree. Saranjams are governed by special rules which provide inter alia for resumption and regrant on the death of the grantee, and also that on regrant the estate passes unencumbered. I do not think it follows that the same principles would apply in the case of a Deshmukhi watan. At the same page of the report of the same case, their Lordships have observed:-' As regards the judicial decisions, those with regard to inams do not seem to be necessarily applicable. The word inam is sometimes vaguely applied to all grants of revenue-free land, without reference to perpetuity or any specified conditions. But it would be unsafe to apply to a peculiar grant like saranjam, rules which were held applicable to grants in perpetuity'. I am aware that in Ganpatrao Trimbak Patwardhan v. Ganesh Baji Bhat I.L.R. (1885) 10 Bom. 112 Sir Charles Sargent expressed the view that there is no distinction in principle between saranjams and other inams. The learned Judge said at page 116 : ' In the present case we are concerned with a saranjam and not an inam; but no legislative enactment or Government Resolution has been cited in support of there being any difference between the tenures as regards the effect of resumption by Government.' I think, however, it is clear that the decision in Sir Sayaji Rao v. Madhavrao : (1928)30BOMLR1463 is based to some extent on the special rules applicable to saranjams and not to other inams, and Sir Charles Fawcett in his judgment in that case at pages 1471 and 1472 recognised that there may be a distinction between the two kinds of grants. The law which has been consistently laid down as to ordinary watans is that the effect of resumption is no more than this; Government levies the full assessment, and the right to hold free of assessment or at a reduced assessment is lost. The earliest case in that connection is Vishnu Trimbak v. Tatia Pant (1863) 1 B.H.C.R. 22. In that case an inamdar had effected several mortgages upon his inam lands. The right to hold the lands rent free was ruled by Government to have ceased upon his death, but the inam was continued to his representatives subject to the payment of assessment. It was held that the original estate in the lands was not destroyed, that no new title in the inamdar's representatives was created, and that the lands continued chargeable in their hands with any valid specific liens created upon them by the inamdar. Reliance was placed on a Government Resolution of 1854 which stated the position in these terms: 'All that the law allows as regards resumption is the discontinuance of exemption from payment of the Government revenue, leaving the inamdar, who is in occupation of the land, to retain the land so long as he pays the assessment imposable on the lands as khalvat land according to the revenue survey settlement'. Then in Gangabai v. Kalapa Dari Mukrya I.L.R. (1885) 9 Bom. 419 it was held that on the resumption of an inam the inamdar's right to exemption from the payment of the Government assessment ceases, and the inamdar becomes liable to pay such assessment, but all his other rights remain unaffected. Both these cases were followed in Gurbasappa v. Rango Venkatesh I.L.R. (1912) 36 Bom. 539 : 14 Bom. L.R. 563. Mr. Jayakar has pointed out that the decision in Vishnu Trimbak v. Tatia Pant was prior to the Hereditary Offices Act. That seems to be immaterial seeing that the other cases were subsequent to it. In The Secretary of State for India v. Girjabai (1927) L.R. 54 IndAp 359 : 29 Bom. L.R. 1503 their Lordships have not referred to a single case dealing with an ordinary inam, and I find nothing in the observations in that case to justify the conclusion that the law laid down in the cases which I have cited is not still good law so far as ordinary inams or watans are concerned. These cases, therefore, cannot be taken to be overruled. It is true of course that Government was not a party to those cases: nor is it a party in the present case. But we have evidence of the attitude taken by Government. I have already referred to the evidence of the Collector's clerk, which I think may be accepted as showing that Government has not claimed in this case that the resumption has any other effect than to make the land liable for the full assessment. The witness being a clerk under the Court of Wards and in : the management of Bhimabai's estate must be acquainted with the facts. Now it cannot be disputed that it is competent to Government to rest content with the levy of full assessment, whatever else might have been done. So that even if the principles laid down in the two saranjam cases relied upon by Mr. Jayakar did apply, they would not, in my opinion, affect the decision in the present case. As against these defendants, whose rights such as they may be are derived not from Bhimabai but from Anandrao or his widows, the plaintiff is entitled to succeed. The decision in this suit is of course not binding on Bhimabai or on Government.
12. The only other point argued on behalf of the appellants is that the amount of maintenance which has been awarded to defendant No. 1 is insufficient. The trial Judge has awarded her Rs. 150 a year. He awarded Rs. 144 a year to defendant No. 2, but gave defendant No. 1 a little more as she is blind. The plaintiff in his statement in answer to certain questions by the Court (exhibit 34) stated that he was prepared to pay Rs. 150 to Rs. 200 annually to defendants Nos. 1 and 2. Krishnabai stated in her evidence (exhibit 83) that she used to receive Rs. 200 to Rs. 250 a year. Defendant No. 2 has given the same figure. The only evidence as to the income is that of Dattatraya, the Diwan (exhibit 95). He says that Anandrao used to get about Rs. 700 a year as profits from the lands other than those mortgaged, and that at present those lands fetch an annual rent of about Rs. 800 a year. In the plaint the mesne profits per year were also valued at Rs. 800. I think that on this evidence and in view of her disability it would be reasonable to award Rs. 200 a year to defendant No. 1. We increase the amount of maintenance accordingly. We are informed that the lands mentioned in schedule 3 which were formerly mortgaged have now been redeemed. At Mr. Jayakar's request we give liberty to both the widows defendants Nos. 1 and 2 to apply if they are so advised for an increase of their maintenance on the ground of the increased income of the estate. The decree of the trial Court will be modified accordingly.
13. We must also make two other minor modifications in it. The declaration that the plaintiff is the validly adopted son of the late Anandrao etc. will stand as it is. The second declaration given that as such adopted son he is the owner of the entire suit property minus the open space etc. will be modified as follows: Declared that as such adopted son he is entitled to possession of the entire suit property as against the defendants in this suit with the exception of the open space added by amendment, and of property ( 2) in schedule 1 to the plaint. It was alleged by the defendants that this latter item of property is in Bhimabai's possession and the plaintiff has admitted this. He is not entitled in this suit to any decree against Bhimabai. In other respects the trial Court's decree will stand. As the appeal substantially fails, the appellants must pay the costs of respondent No. 1.
14. The cross-objections are not pressed and are dismissed with costs.
15. I agree and have nothing to add.