1. The facts of these appeals are simple, but they raise a point of law on which there is some difference between the decisions of this Court. The question is whether a money decree against a watandar can be executed against the watan property in the hands of his sons. The learned Counsel for the appellants has referred to the set of decisions ending with Narayan v. Ramrao (1901) 3 Bom. L.R. 482 in which it was held that watan property after the death of the watandar was not assets of his estate, from which it would appear that the heir does not succeed to the watan property through his predecessor. The earlier decision of Hanmantrav Khanderav v. Bhavanrav Bajirav (1873) 10 B.H.C.R. 299 is prior to the introduction of the Watan Act and is based on Bombay Regulation XVI of 1827. But Jagjivandas Javerdas v. Imdad Ali I.L.R. (1882) Bom. 211 which lays down that as the deceased mortgagor had only a life interest the watan came into the hands of his son free of the mortgage, and Narayan v. Ramrao are distinct authorities for holding that the watan property in the hands of the sons is not liable as the assets of the father. The lower appellate Court has relied on these two decisions. There are, however, a number of later decisions of this Court, which, it is contended, lead to an opposite conclusion. In Ganesh Ramchandra v. Lakshmibai I.L.R. (1921) Bom. 726 : 24 Bom. L.R. 249 it is argued, it was held that the heir claims through the watandar, but that case was decided on special circumstances, the auction purchaser there being a watandar of the same watan, and the sale being effected for legal necessity by the widow. In Rama v. Shamrao (1904) 7 Bom. L.R. 135 it was held that adverse possession commenced in the lifetime of one watandar avails as against the subsequent watandar, and will not be stopped by his minority at the death of such preceding watandar. It is based on Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande I.L.R. (1885) Bom. 198 where it was held that the succeeding holder takes as the heir of his predecessor. There are two recent cases on the point, Tuka v. Ganu (1930) 32 Bom. L.R. 1398 in which it was held that the succeeding watandar derives his title as heir of the preceding watandar, which is capable of being barred and extinguished by adverse possession, and that follows the Privy Council case, Padapa v. Swamirao I.L.R. (1900) Bom. 556 : 2 Bom. L.R. 548 This decision was followed in Swamirao v. Bhimabai : AIR1932Bom464 , which is a case of my own. It is contended that if a watandar claims through his predecessor, the watan property in his hands will be liable for the debts of the preceding watandar under Section 53 of the Code of Civil Procedure. The learned Counsel, however, has to admit that no case has gone so far as to say that watan property in the hands of the successor of the watandar who incumbered it is liable to attachment and sale contrary to the express statutory provision in Section 5 of Bombay Act III of 1874, and he is obliged to argue that the property should be put up to sale subject to the condition that it should be purchased only by a watandar of the same watan. Now, although the succeeding watandar may claim through his predecessor, and adverse possession against the predecessor may continue as against the successor, this is not the same thing as holding that under Section 53, Civil Procedure Code, watan property in the hands of the successor is liable to attachment and sale in execution of a decree against the preceding watandar, which would be in effect to nullify the provisions of Section 5 of the Bombay Hereditary Offices Act III of 1874, and the argument that the Collector can take steps under Section 9 to set aside the attachment and sale does not affect the question. I am clearly of opinion that in view of the statutory prohibition in Section 5 of the Watan Act, watan property owned by a watandar is not after his death liable for is debts in the hands of his heirs under Section 53 of the Code of Civil Procedure. Further, although an alienation to a watandar of the same watan is not forbidden by the statute, it would, I think, be futile to order the property to be sold subject to the condition that the purchaser should be a watandar of the same watan. We do not know in the present case whether there are any watandars of the same watan other than the defendants, and if there were, it is not certain that they would purchase the property. In fact one's ordinary experience of execution proceedings leads to the conclusion that they would in all probability agree among themselves not to purchase, so that the sale would be infructuous. There are already quite enough difficulties in the matter of bringing execution proceedings to successful conclusion with importing a condition such as the learned Counsel asks for into the proceedings, and as I think it would not be in the interests of justice that a sale ordered by the Court should be barren of any results, I cannot accept any such suggestion as that made by the learned Counsel.
2. The result consequently is the appeal will be dismissed with costs.
3. This appeal raises an important point of law as to whether a money decree obtained against a watandar during his lifetime can be executed against the watan property in the hands of his son. The lower Court has held that it cannot be so executed and hence this appeal.
4. The relevant provision of law on this point is contained in Section 5 of the Bombay Hereditary Offices Act according to which it is not competent to a watandar, without the sanction of the Government, to alienate, beyond the term of his natural life, any watan or any interest therein for the benefit of a person who is not a watandar of the same watan. Relying on this section and the decisions in Hanmantrav Khanderav v. Bhavanrav Bajirav (1873) 10 B.H.C.R. 299 Jagjivandas Javerdas v. Imdad Ali I.L.R. (1882) Bom. 211 and Narayan v. Ramrao (1901) 3 Bom. L.R. 482 the lower Court has held that watan property is held on a special tenure the effect of which is that after the death of a watandar, the watan property comes into the hands of his successor free from the alienation and the interest which the latter takes in the watan is not an asset of his predecessor's estate.
5. The appellants, relying on Section 53 of the Civil Procedure Code, contend that when the successor to the watan property is a son of the preceding holder, he is liable to pay the debt of his deceased father under the Hindu Law, and that the watan property should be deemed to be the property of the deceased which has come into the hands of his successor as his legal representative. It is contended that the son is such a legal representative of the watandar and by way of analogy the learned Counsel for the appellants has relied on several authorities of this Court to show that the succeeding watandar is a representative of and claims through his predecessor as his heir so as to be barred by res judicata and adverse possession as against his predecessor : Radhdbai and Ram Chandra Konher v. Anantrav Bhagvant Deshpande I.L.R. (1885) Bom. 198 Padapa v. Swamirao I.L.R. (1900) Bom. 506 : 2 Bom. L.R. 548 Rama v. Shamrao (1904) 7 Bom. L.R. 135 Tuka v. Ganu (1930) 32 Bom. L.R. 1398 and Swamirao v. Bhimdbai : AIR1932Bom464 . It is true that according to these authorities the watandar claims through his predecessor as his heir but that does not mean that the alienation made by a watandar to an outsider is binding on his successor as his heir after his death. There is no infringement of the provision of law as embodied in Section 5 of the Bombay Hereditary Offices Act in these cases. It is one thing to say that a watandar is to be deemed to be the successor and heir of his predecessor for certain purposes and a different thing to say that as such heir he is bound by any alienation to a stranger made by his predecessor. The latter is prohibited by law whereas the former is not.
6. Here the appellants want to attach and sell the watan property in the hands of the son for the debt of his father against whom alone they have obtained a decree, and it is conceded on behalf of the appellants that this sale in execution would be void and illegal if the auction-purchaser is an outsider, i.e., one who is not a watandar of the same watan. This itself shows to a certain extent the weakness of their position. 'What is to be seen is not whether a watandar happens to be a purchaser of the property, in which case the sale is valid, or whether the purchaser is an outsider, in which case it is invalid, but whether a sale can take place at all in execution the effect of which may be to pass the property outside the watan family without the son's volition. The intention of the legislature seems to be that the watan property should come into the hands of the successor free from any alienation and the authorities relied on by the lower Court, which are more applicable to the facts of this case than those relied on by the appellants, seem to be good law still. It is argued that the first set of authorities dealt with alienations of the watan property which were governed not by Section 5 of the Bombay Hereditary Offices Act but by Section 20 of Bombay Regulation XVI of 1827, but as stated in Jagjivandas Javerdas v. Imdad Ali by Kemball J. (p. 212):
That such estates were not, under Regulation XVI of 1827, liable for the debts of the last holder, is too clear to admit of question; and, indeed, the Subordinate Judge's order in directing the attachment to issue, proceeded on the ground that the Bombay Act III of 1874 had effected a change in the character of such tenures. No provision, however, of the Act has been pointed out to us as supporting this proposition.
7. It may be of interest to note by the way that Kemball J., who decided this case and held that the watan came into the hands of the son free of mortgage, was a party to the full bench case of Radhabai and Ramchandra Konher v. Anantrao Bhagvant Deshpande, in which it is held that in the absence of fraud and collusion, judgment against one holder of watan land is res judicata as regards a succeeding holder.
8. The principal authority on which reliance has been placed on behalf of the appellants is Ganesh Ramchandra v. Lakshmibai I.L.R. (1921) Bom. 726 : 24 Bom. L.R. 249 in which it is held that the sale in execution of a money decree against a watandar in which the property had been purchased by a watandar of the same family after he death of the judgment-debtor was valid and binding on the reversioners after the death of his widow as the sale was to a watandar of the same watan and was effected for a legal necessity as the judgment-debtor's widow was bound to pay the decretal debt of her husband. Now this case is distinguishable from the present case in important respects. There the point which the Court had to consider was not whether the successor to the watandar against whom the decree was obtained was entitled to raise any objection to attachment and sale on the ground that the alienation could not be made so as to bind him, but whether the sale having already taken place and the watan property having been accidentally purchased by a watandar of the same watan and the sale being for legal necessity, it would bind the reversioners. No doubt there are expressions in this decision which might lend support to the view which is urged by the appellants, but the point was not there argued in the form in which it arises in this case, nor is any authority quoted one way or the other. The words in Section 5 of the Bombay Hereditary Offices Act are that it is not competent to a watandar to mortgage or alienate for a period beyond his natural life any interest in the watan to a non-watandar and the intention of the legislature seems to be that the successor to the watan is entitled to challenge a Court-sale of the watan property which is to take place after his predecessor's death for a transaction which his predecessor and not he had entered into. It is conceded that if at all the Court can sell this property in execution it would be subject to a provision in the proclamation of sale that the sale would be valid only if the property is purchased by a watandar of the same watan. I doubt very much whether the legislature had the intention of validating such hypothetical sales in the case of watan property the effect of which may be that either no such watandar may come forward to purchase the property, in which case the sale would be infructuous, or that he may purchase it for a song, in which case the sale may not serve the purpose of the judgment-creditor.
9. I might add that it has been held by this Court in Ganesh Eknath v. Bhausaheb Bhavanrao I.L.R. (1921) Bom. 345 : 23 Bom. L.R. 1037 that a mortgage decree on a mortgage made by a watandar on watan property is not binding on the heir.
10. I, therefore, agree that the decree of the lower Court is correct and that the appeal be dismissed with costs.