1. This appeal raises a question as to watan law. The facts are simple. The plaintiff is a purchaser from a lady who claims to be the heir of one Kadir Khan, her brother who was the holder of watan property. Defendant No. 2, who is the father of defendant No. 1, had obtained a decree against defendants Nos. 4 to 9, who are the members of the watan family, and at the auction held in execution of this decree his son, defendant No. 1, purchased the property. The plaintiff, who was a previous purchaser from Shahabia, the sister of Kadir Khan, objected, but his objection was overruled, and he brought the present suit for a declaration that the auction-sale was void as against him.
2. The question that arose was whether by reason of Act V of 1886, Section 2, the plaintiff's vendor Shahabia, being a female, was not postponed to the males in the family, the property being watan property. It was held by the first Court that this was so, and therefore, the plaintiff must be non-suited. On appeal, this decision was confirmed by the District Judge and the appeal dismissed. The plaintiff makes this second appeal.
3. The property in question is deshgat watan property situated in the Belgaum District. The sanad is not forthcoming, but an extract from the register of sanads has been put and has been quoted in full at p. 8 of the print. The decisions of the Courts below have been influenced by the fact that this very extract from the register of sanads in connection with the same watan has been twice construed by this Court in previous litigations between other persons, and in each case the High Court has held that the property is watan and that a female could not succeed. But it is contended that the High Court decisions were passed in the absence of the evidence which has now been put before the Court, and that in the light of the evidence with which we are now furnished, it is open to this Court to take a contrary view to that which was taken in the previous decisions. They are not, of course, res judicata. The first of these decisions was in First Appeal No. 177 of 1920 decided on April 13, 1922, and it was held that the endorsement appended to the register of sanads, which was set out in the judgments of the Courts below and which is the same endorsement which we have to construe now, did not suffice to change the land from watan property to ordinary private property. In the case of Dulabai v. Mahmad Hanif (1923) Second Appeal No. 539 of 1920 the construction of these words came before this Court and the Court again, though with some diffidence, came to the same conclusion as before following the construction which had been put upon these words in First Appeal No. 177 of 1920. But it may be observed that the Court said :- 'Unfortunately the materials for determining that question are not quite as intelligible as they could have been desired,' and the case was argued upon the construction of the endorsement. It is now contended by the learned Counsel for the appellant that this deficiency has been made good by the evidence which is now produced by his client and that there can be no difficulty in arriving at a conclusion as to the nature of the property.
4. The appellant in this case has put in the correspondence, which led to the issue of the sanad, ending in 1890, and from that correspondence the following facts will appear. A settlement was offered to the then Desai in 1862, but for various reasons which do not appear and which are not relevant, no final arrangement was arrived at until the year 1884. In 1884 a sanad was offered to the Desai, who appears from the correspondence to have been the same person as the Desai of 1862. He refused to accept that sanad for various reasons and applied to Government, and the matter was referred by Government to the Legal Remembrancer. The Legal Remembrancer made a report to Government which is Ex. 95, at p. 8 of the record. That document is very important in the present case, and I shall have to give extracts from it at some length. This report was called for upon the petition of the Desai Gavas Khan wd. Rasul Khan dated April 14, 1886, and the Legal Remembrancer says:
The petitioner's contention is that he agreed to pay an additional three annas per rupee on his deshgat watan on the understanding that he should (a) be relieved from liability to service, (b) have full ownership, (c) have the power of adoption.
He objects that the sanad offered to him in 1884 made the continuance of the watan depend on the existence of male heirs (lineal, collateral or adopted) and imposed certain conditions and liabilities in case adoption outside the family were desired.
5. The Legal Remembrancer in paragraph 3 gives the terms on which the petitioner originally proposed to accept commutation. The terms are given by the Oriental Translator:
In consideration of the commutation of the right of service and in order that the watan may be continued permanently and that permission to adopt may for ever be granted, I agree to pay three annas in every rupee of the profit, that is, net income after deducting judi from the watan revenue. A sanad may, therefore, be granted to this effect. Besides the three annas mentioned above there should be no molestation in any way. March 1, 1862.
6. The words 'continued permanently' have been underlined by the Legal Remembrancer, and in paragraph 6 he says:
I think that the words I have underlined in the statement made by the petitioner in 1862 (quoted in paragraph 3 above) unquestionably show that what the petitioner asked for was that the watan should be made his private property and thenceforth governed by the law to which he was subject. There is no mention of restricting its devolution to male heirs or its continuance to the survival of male heirs, nor is there any mention of any restraint on alienation.
6. Then the Legal Remembrancer, after referring to the remarks of West J. in Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande I.L.R. (1885) Bom. 198 goes on to say:
In the absence of such contractual restrictions, the petitioner was, I think, warranted in supposing that he was to enjoy the watan as his private property.
7. And his final conclusion is as follows (paragraph 8):
Unless there is anything subsequent to his statement of 1862 to show that he acceded to other terms or anything to show that the terms proposed in 1862 were rejected by the authorities, I think it must be inferred from the payment and acceptance of the three annas in the rupee in lieu of services, that the terms in the petitioner's statement of 1862, constituted an agreement as to the nature of the sanad that was to be given to him, and those terms contained no restrictions as to heirs or as to alienation, but entitled the petitioner to look on the watan as subject only to the law to which he himself is subject and freed from all limitations as to descent in the male line alone.
8. So, the opinion of the Legal Remembrancer was that the terms to which the petitioner gave his consent in 1862 were that the watan should be regarded as subject only to the law to which he himself was subject and freed from all limitations as to descent in the male line alone and without any restrictions as regards heirs or as regards alienation. The Desai family are Muhammadans and are governed by Muhammadan Law, and therefore if the watan is to be looked on as subject to the law to which the petitioner himself was subject, then it is subject to the ordinary Muhammadan law, and, therefore, inheritable by female heirs.
9. Now, it has been contended by the learned advocate for the respondents that Act V of 1886 prohibits the succession by female heirs except in certain specified cases amongst which the sister is not one, and that by reason of that enactment the sister of the Desai could not succeed, and that the settlement must be regarded as having been made in 1862 at which date there was no prohibition to the succession by female heirs, and therefore that settlement must be regarded as subject to the subsequent prohibition introduced by Act V of 1886, Section 2. Now, it is quite clear from the Legal Remembrancer's letter that there had been no settlement up to that date in 1888. In this letter he draws attention to the fact that it was not apparently brought to the notice of Government that the petitioner had only been offered his sanad in 1884, and had previous to that time no opportunity of protesting that its terms were different from those he had expressed his willingness to accept. It will appear, therefore, that for some reason or other, from 1862 to 1884, no settlement had been arrived at. In 1884 when the sanad was offered to the petitioner he refused to accept it. He made an application to Government and the matter was referred to the Legal Remembrancer for his opinion, and, therefore, the matter not having been finally decided on the date of this letter of the Legal Remembrancer, which is December 17, 1888, I hold that till then there was no settlement between the Desai and Government. On receipt of the letter of the Legal Remembrancer, Government issued a Resolution No. 1334, Revenue Department, dated February 19, 1890, which is at p. 6. In this Resolution, which disposed of the petition of the Desai, dated December 15, 1887, after referring to the memoranda from the Commissioner, S.D., and the Oriental Translator and the letter from the Legal Remembrancer, dated December 17, 1888, the particulars of which have just been given, Government say:
The Collector of Belgaum should be requested to issue to the petitioner a sanad in terms of his statement of 1862 as interpreted by the Remembrancer of Legal Affairs.
10. That is a clear direction of Government that the sanad which was to be issued to the Desai should be in the terms set forth by the Legal Remembrancer in his letter, and the concluding paragraph of that letter advises that the terms which the petitioner had accepted were terms which contained no restriction as to heirs or as to alienation, but entitled the petitioner to look on the watan as subject only to the law to which he himself was subject, and freed from all limitations as to descent in the male line alone. Therefore, the settlement which Government and the petitioner arrived at was that this watan property should be considered as his private property and that it should be subject to the ordinary Muhammadan Law of descent and inheritance.
11. Now, the power of Government to make a settlement of that nature is undoubted, and, apart from the previous power which they had, Section 15 of the Watan Act (Bom. III of 1874) is perfectly clear on the point. Section 15 says:
The Collector may, with the consent of the holder of a watan, given in writing, relieve him and his heirs and successors in perpetuity of their liability to perform service upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder.
12. The settlement is made by the Collector in this case under the directions of Government, and it is thus competent to the Collector under the directions of Government to relieve a holder from any obligation which may be imposed upon him under this Act, and to override the provisions of Section 2 of Act V of 1886 which is a part of this Act.
13. It has been contended by the learned advocate for the respondents that it is not open to Government to override what has been passed by the legislature. This is not overriding a law, inasmuch as the statute by Section 15 gives the power to the Collector to impose conditions which are not consistent with the Act. It is quite clear, therefore, that Government resolved to apply the ordinary law of Muhammadan inheritance to this watan-I do not deal with the question of alienation which does not arise in this case-and the Collector was directed to carry out this resolution. A difficulty arose in the mind of the Collector as to the exact terms of the sanad, and, therefore, he made a reference to Government and a second reference was made to the Legal Remembrancer and was answered by him in his letter dated June 4, 1890, Exh. 97, at p. 12. In that letter, after referring to the payment of three annas in the rupee, he says :- 'The terms accepted by the watandar are stated in paragraph 3 of my No. 1339 of December 17, 1888,' and he says that ' the sanad which accompanied the Government Memorandum is in accordance with the terms of the settlement which in 1862 the Desai declared himself willing to accept, and is mutatis mutandis applicable to his case.' By Government Resolution No. 4277, dated June 19, 1890, Government forwarded copies of the letter from the Legal Remembrancer to the Commissioner, Section D., and the Collector of Belgaum for information and guidance, and this is the final settlement arrived at between the Desai and Government, and the terms of the settlement were intended to be as stated in the letter of the Legal Remembrancer of December 1888, Exh. 95. In accordance with that settlement a sanad was issued. We have not got the sanad, but the extract from the register of sanads has been translated at p. 8 of the print and is to this effect:
In consideration of the fulfilment of these conditions the said land shall be continued for ever without increase of land tax over the above fixed amount and without objection or question on the part of Government as to the rights of the lawful holders thereof, whether such rights shall have accrued by inheritance, adoption, gift or otherwise.
14. Now this paragraph has been twice construed by this Court in the case to which I have already referred as not sufficing to change the land from watan property to ordinary private property. But the judgment, as I have already stated, in Duldbai v. Mahmad Hanif was admittedly based on materials which were not as intelligible as could have been desired. We are now in a stronger position, because we now know that this sanad was based on a settlement arrived at between Government and the watandar by which the watan was to be made heritable under the ordinary rules of Muhammadan Law as indicated in the last paragraph of the Legal Remembrancer's letter of December 1888, Exh. 95. We also know that the recommendation was accepted by Government and orders were issued for the issue of the sanad in terms of that letter. We also know that when the Collector referred the matter back, the Legal Remembrancer gave some further directions and his letter was forwarded to the Collector for guidance. The intentions of the parties on both sides are thus quite clear, and although possibly the terms of the sanad may not be so clear as they might be, we know what was meant and we are justified in interpreting the endorsement on the sanad in the terms of the Legal Remembrancer's letter, and in a sense contrary to what was held by this Court on the previous occasions.
15. It has been argued by the learned Advocate for the respondents that it is not permissible to go into evidence regarding the intention of the parties under Section 92 of the Indian Evidence Act. That, however, refers to the admission of any oral agreement or statement as between the parties. The parties to the sanad were Government and the Desai, and in the present case we are dealing with third parties altogether. However, I need not go further into Section 92, because undoubtedly when the parties arrived at a settlement, the terms of the settlement as embodied in the correspondence can be looked into, and as a matter of fact most of the sanads are in a stereotyped form, and if the form does not correctly express the intention of the parties that is unfortunate, and that is what has led to the present dispute.
16. Apart from this, there is evidence on the record that the revenue authorities, acting of course on the instructions of Government, have throughout treated this property, not as watan but as private property, as held by the Legal Remembrancer. There are various orders of the Collector and the Commissioner on the record in which they have refused to restore the property from alienees. The Commissioner has stated in his order, which is Exh. 90, that the sanad was meant to be worded so as to make the property alienable. The real reason why no steps have been taken to get the sanad made clear is obvious. There seems to be some confusion in the mind of the learned District Judge about it. As a matter of fact, it appears that the Desai, having alienated the land, applied to the revenue authorities to restore it to him under the Watan Act. It was, therefore, in his interest to show that the property was not private property but watan property. It is, therefore, unlikely that he would apply for any rectification of the sanad, and his alienees, of course, would not be allowed to have the sanad rectified. That is why the sanad has remained as it is, and there has been so much litigation in connection with this watan. But there can be no doubt on the evidence which I have detailed and which to my mind is perfectly clear, that the land has been considered by Government as private property and is inheritable under the ordinary Muhammadan Law like any other property, as stated in the concluding paragraph of the Legal Remembrancer's letter of December 1888, which I have given in full above and which I do not think it necessary to repeat.
17. The property being so treated by Government by virtue of their powers under the Watan Act, even though their treating it in this manner may be inconsistent with the provisions of the Watan Act, the ordinary Muhammadan law will apply, and it is conceded that if the Muhammadan Law applies, Shahabia, the plaintiff's vendor, was the heir, and that she had a right to transfer the property to the plaintiff, and, therefore, the plaintiff is entitled to the declaration which he seeks, the property having vested in him prior to the alienation by defendants Nos. 3 to 9 to defendant No. 2.
18. The appeal will, therefore, be allowed, the decree of the lower appellate Court will be reversed and the plaintiff's suit decreed with costs throughout.
19. I agree. The question that has to be decided in this appeal relates to the construction of the sanad given to the Desai of this watan in suit. Now, this sanad has to be construed in the light of what the Government purported to give to the Desai. This is a case of a settlement between the Desai and the Government, and if we find from the evidence on the record that Government intended to give certain rights by means of this settlement to the Desai, it is not possible to ignore the intention of Government that would appear from the correspondence and Government Resolutions that preceded the grant of the sanad, because this sanad is, really speaking, the result of the negotiations, which started as early as 1862, for the settlement that was to be effected between the Desai and Government. In 1884 a sanad was offered but not accepted by the Desai and subsequently the matter was referred to the Remembrancer of Legal Affairs for his opinion, and after that opinion was received, Government intended to grant a sanad in terms of that opinion as clearly appears from Government Resolution No. 1334 of February 19, 1890. It cannot be ignored that the sanad must be viewed in the light of that Government Resolution. That Government Resolution distinctly states that the Collector was to issue a sanad in terms of the statement of the watandar made in 1862 as interpreted by the Remembrancer of Legal Affairs. Now, this implies two things, the ascertainment of the statement of the watandar, and, secondly, the interpretation put upon that statement by the Remembrancer of Legal Affairs. Both these things clearly point to one and one conclusion only, and that is that this property was not like an ordinary watan which may be enjoyed subject to certain restrictions, but that the property was claimed to be one which would descend according to the principles of the law governing the Desai family, namely, the Muhammadan Law, and Government have distinctly stated that the sanad should be given in the terms as interpreted by the Remembrancer of Legal Affairs. It seems that this sanad was given in virtue of the negotiations which lasted from 1862 right up to 1890, and must be regarded as a sanad by which Government meant to confer certain rights on the Desai as to succession about this tenure. Therefore, considered in this way, the sanad, to my mind, does mean that this watan property should descend to the heirs of the Desai under the Muhammadan Law.
20. It has been contended by the learned advocate for the respondents that this sanad, which is given in 1890, must be subject to the law then prevailing, viz., the Act of 1886, by which females were excluded from succession to watan property, and in support of this argument it is urged that the property was watan from the beginning, and that Government did not mean to convert this property into non-watan land and to make it private land so that it ceased to be a watan altogether, and reliance has been placed on the case of Bai Jadav v. Narsilal I.L.R. (1900) Bom. 470 : 3 Bom. L.R. 249 Now, this case has been followed by the learned Subordinate Judge here and also in the previous proceedings with regard to this watan. It is important to observe that the decision in that case does not touch the point that has to be decided in the present case. There a sanad was given to the parties in 1868, and it was held that even though the commutation of the service was made subsequent to the sanad, it did not mean that the tenure was not governed by the new Act of 1886. In other words, although a certain power of alienability may be given, the descent of the watan property would be governed by the Act of 1886. Now, in this case if a similar sanad was given to the parties in 1868, and if that sanad had to be construed in this case, then this case would have been governed by the principles of the case of Bai Jadav v. Narsilal. But here the facts are different, namely, that in 1862 a settlement was to be effected and it was at that time that the watandar himself stated that this property should be treated as his private property of which he was the full owner, and subsequently in 1884 a sanad was offered to him according to which the descent was to be restricted to the male line. He did not accept that sanad with the result that the matter was referred to the Remembrancer of Legal Affairs, and that officer interpreted the terms of the watandar in 1862 distinctly as meaning that he wanted this property to be governed by his own personal law, and when the sanad was ordered to be given to the watandar in terms of that opinion, it is clear that Government did not intend this land to be governed by the Bombay Act of 1886. The sanad was given four years after this new Act came into force, and the sanad was to be given according to the settlement which would have been effected in 1862 if the matter had been disposed of there and then. Therefore, though this sanad was actually granted in the year 1890, it is not to be governed by the Act of 1886 which was in the meanwhile passed.
21. Then it is contended that the property being watan property, Government cannot convert it into non-watan land. But we have to bear in mind that even in 1862 a settlement was permissible to Government and that power is not taken away by the new Act, that is, the Bombay Hereditary Offices Act III of 1874. Section 15 of that Act Clearly enables the Government to relieve any watandar and his heirs and successors in perpetuity of their liability to perform service upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder. It is not a case, therefore, of converting watan property into non-watan property, but it is, really speaking, a case of making a settlement with the person of an alleged watan property on terms which may be agreed upon between the watandar and Government which terms may be inconsistent with the provisions of this Act. So that although the Bombay Act of 1886 was embodied in the Act of 1874, the Government, when it granted the sanad in 1890, gave a special sanad to the Desai, which was in a sense a departure from the general provisions of this Act. I think it is certainly permissible for the Government to do so, and the sanad, read in the light of the correspondence put in, clearly shows not only that Government had the power to grant this right of descent under the Muhammadan Law to the parties, but, as a matter of fact, Government did intend to do so, and the sanad was meant to confer that right.
22. I, therefore, agree that the decree of the lower Court should be reversed and the suit decreed with costs throughout.