1. These are appeals brought from decisions of the learned Joint Judge of Ahmedabad in certain references made to him by the Assistant Collector of Kaira under Section 18 of the Land Acquisition Act of 1894. The appellant is the Assistant Collector of Kaira, and the appeals raise a point of law which is attended with some little difficulty and a question of fact upon which, I think, there is no difficulty.
2. The question of law arises from the fact that the land in controversy formed part of an unrecognized sub-division of a narva holding, and that being so, the question is, whether the case is governed by Section 32 of the Land Acquisition Act. The learned Joint Judge held in the negative. The contention for the appellant is that since under Section 3 of the Bhagdari and Narvadari Tenures Act (Bombay Act V of 1862) it was not lawful to the claimants to alienate this parcel of land, therefore Section 32 of the Land Acquisition Act must apply, and an order should be made under that section. The question, which appears to be res Integra, requires careful consideration of the provisions of the Acts. Section 3 of the Bhagdari and Narvadari Tenures Act provides, so far as its provisions are now material, that:
It shall not be lawful to alienate...any portion of any bhag or share in any Bhagdari or Narvadari village other that a recognized sub-division of such bhag or share.
3. Section 32 of the Land Acquisition Act, so far as the section is now material, lays down that:
Where it appears that the land acquired belonged to any person who had no power to alienate the same, the Court shall (a) order the money to be invested in the purchase of other lands to be held under the like title and conditions of ownership, or (b) if such purchase cannot be effected forthwith, then in such Government or other approved securities as the Court shall think fit; and shall direct the payment of interest from such investment to person or the person who would for the time being have been entitled to the possession of such laud, and such moneys shall remain so deposited and invested until the same be applied (1) in the purchase of such other lands as aforesaid, or (2) in payment to any person or persons becoming absolutely entitled thereto.
4. The argument for the appellant is that the only condition prescribed for the operation of Section 32 is that the land should be land belonging to a person who had no power to alienate it, and, since that condition is satisfied here, the section must apply. The learned Judge below, in disallowing this argument, explains his reasons in these words:-
I do not think a case like the present falls within the spirit of Section 83 of the Land Acquisition Act. It was meant, I think, to apply to cases where the possessor of the land had a limited interest in it, e.g., a tenant-for-life, guardian, trustee, widow, administrator, etc. And I do not think a narvadar holding a portion of a narva is in any sense a tenant-for-life or a trustee for his successors or other narvadars of the same narva or any other person.
5. While I am timorous about appealing to the spirit of a statute in order to avoid, or evade, the apparent meaning of its words, I think the learned Judge's conclusion is right. And I think so, because that conclusion seems to me to do far less violence to the language of Section 32 than the opposing theory. For, the most that can be said for the appellant is, as I have indicated, that the words of the conditional clause in Section 32 'if it appears that the land belonged to any person who had no power to alienate the same' are wide enough to include the case of an unrecognized sub-division of a narva. Prima facie that no doubt is so. But the section so far as we are concerned with it, consists of but a single sentence, and in order to measure the sweep or ambit of the conditional clause we must, I think, have regard to the consequent clause. That, indeed, amounts to no more than stating the familiar principle that the section must be read as a whole. So reading it, I am satisfied, especially from Clause (2), that the only case contemplated by the draftsman was the case where the legal estate was in a person possessing only a limited interest, while outstanding rights were in a beneficiary or reversioner who, upon the exhaustion of the limited estate, would become, in the words of the clause, 'absolutely entitled' to the land. Familiar instances of such possession are supplied by the case of a Hindu widow or a tenant-for-life. But no such consequences as the section prescribes can ensue in the case of narva land. For, the moneys-deposited could not be applied either in the purchase of other lands to be held under the like title and conditions of ownership or in payment to any person becoming absolutely entitled. For the present or late holder of this narva was himself absolutely entitled in the sense that no one except himself had any claim to the land, and no succeeding holder's title could be more absolute than his was. That being so, I think that the apparent generality of the conditional clause must be restricted so as to correspond with the scope of the consequences expressed, and since this latter excludes the case of a narva holding, that holding must be excluded from the operation of the section.
6. Though it is probable, I think, that the case of a narva holding is a casus omissus from the Government of India Act, the conclusion which I adopt is, in my opinion, capable of reconcilement with the provisions of Section 32; for, whereas that section contemplates an absolute disability to alienate in the person to whom the land belonged, the disability of the narvadar is not absolute but only conditional. He can alienate any portion of his holding in certain circumstances, provided, for instance, he joins with it another parcel, so that the whole subject of the alienation is a recognized sub-division. Moreover, the phraseology of Section 32 suggests that the disability contemplated is only a personal disability, whereas here the disability is not in the person but is in the land itself which, so long as it is an unrecognized sub-division of a narva, is incapable of alienation in whosesoever hands it may be held. On these grounds I think that the conclusion of the learned Judge below is right.
7. The other opinion, it seems to me, has nothing to recommend it except a seeming conformity with the words of the conditional clause, while it is wholly incapable of being reconciled with all the succeeding provisions of the Statute.
8. As to the question of fact, that is, as to the amount of the awards made by the learned Joint Judge, they have been attacked as excessive by the learned Government Pleader and as inadequate by the learned pleaders for the claimants. It is not, I think, necessary to reinvestigate this matter, upon which the learned Judge below has given us a careful and well-considered judgment. It is enough for me to say that I have heard nothing which, in my opinion, would entitle us to differ from the estimate adopted by the learned Judge after a full consideration of all the evidence bearing upon the point.
9. On these grounds I think that the appeals and the cross-objections should be dismissed with costs.
10. In the taxation of costs pleaders' fees will be calculated on the difference between the award of the Collector and the award of the Joint Judge.
11. I concur. I have only a few remarks to add upon the question of law which is not free from difficulty. It seems to me that this is not a case of disability attached to a person holding land, but of a disability attached to the land held. No particular person has been deprived in favour of any other person of the power to alienate, but the condition of inalienability has been imposed on the land. No particular person, in other words, has been restricted to a limited estate in favour of any other person vested with a reversionary estate, but the land itself has been shorn of the usual attribute of alienability by statute. That appears to me to be the strict interpretation of the words 'it shall not be lawful to alienate any portion of any bhag other than a recognized sub-division of such a bhag' and 'any alienation contrary to the provisions of this section shall be null and void' of Section 3 of the Bhagdari Act, V of 1862.
12. It would appear that the former, viz., the limited owner, not the latter, the circumscribed property, has been contemplated by Section 32 of the Land Acquisition Act. The material words of that section are these : 'If....it appears that the land... belonged to any person who had no power to alienate,... the Court shall order the money to be invested in the purchase of other lands to be held under the like title,...or if such purchase cannot be effected forthwith, then in...approved securities,...and shall direct the payment of the interest... to the parson or persons who would, for the time-being, have been entitled to the possession of the said land...until the same be applied in purchase of such other land...or in payment to any person or persons becoming absolutely entitled.' It appears to me that the expressions 'if it appears that the land belonged to any person who had no power to alienate' and 'any person becoming absolutely entitled' could be applied completely and without practical difficulty only to limited owners. It could not be adapted without strain of language to absolute owners of circumscribed properties. Such adaptation, therefore, was, in my opinion, not contemplated by Section 32 of the Land Acquisition Act.
13. We ought, therefore, in my opinion, to dismiss the appeals and cross-objections with costs and to affirm the decisions of the learned Joint Judge.