1. The question involved in this case is whether a non-watandar auction-purchaser of the right, title and interest of a Watandar can convey an absolute title to his alienee who is a Watandar of the same watan.
2. In January 1900 the right, title and interest of the plaintiff's father a Watandar was purchased by one Shivangi, who was a non-watandar, before the birth of the plaintiff in 1902. Shortly afterwards Shivangi sold the property to the father of defendants Nos. 1 and 2 who was a Watandar of the same watan. In 1921 the plaintiff's father died, and in 1923 plaintiff brought this suit on the ground that the alienation was not valid after the death of the plaintiff's father.
3. The learned Subordinate Judge held that the alienation was good and binding against the plaintiff. The lower appellate Court came to the contrary conclusion on the ground that the non-watandar auction-purchaser could not convey a larger right to his alienee even though he was a Watandar of the same watan.
4. It is urged on behalf of the appellant that the policy of the Watan Act is to retain the property in the watan family, and that the prohibition against alienation has been allowed to deprive a watan of the usual incidents of an estate only so far as is necessary to prevent its permanent severance from the services annexed to it, according to the decision in Radhabai and Ramchandra Konher v. Anantrav Bhagwant Deshpande ILR (1885) 9 Bom. 198, and that the alienee being a Watandar of the same watan, the alienation by the non-watandar in favour of the father of defendants Nos. 1 and 2 is not contrary to the provisions of Section 5, at least not opposed to the spirit of that section, and therefore, the alienation in favour of the father of defendants Nos. 1 and 2 would endure beyond the lifetime of the original Watandar. Under Section 5 of the Watan Act it is not competent to a Watandar to alienate for a period beyond the term of his natural life any watan to any person who is not a Watandar of the same watan. There is a direct prohibition of an alienation by a Watandar beyond the period of his natural life in favour of a non-watandar though there is no express provision to validate an alienation in favour of a Watandar of the same watan. It would, however, follow, from the explicit prohibition in Section 5 of an alienation by a Watandar beyond the term of his natural life in favour of a person other than a Watandar of the same watan, that an alienation in favour of a Watandar of the same watan would endure beyond the lifetime of the Watandar. The provisions of Section 5 have been extended to auction sales, and it was held in Ganesh Ramchandra v. Lakshmibai ILR (1921) 46 Bom. 726 : 24 Bom. L.R. 249 that as the auction purchaser was a Watandar of the same watan and as the sale was effected for legal necessity inasmuch as the widow was bound to pay the decretal debt of her deceased husband, the sale was valid and binding against the reversioners. It would, therefore, follow that an auction-sale in favour of a Watandar of the same watan would be valid and would endure beyond the lifetime of the Watandar. In Shivram Narsingrao v. Mahadev Narayan ILR (1912) 37 Bom. 81 : 14 Bom. L.R. 797 it was held in the case of an auction-sale in favour of a non-watandar that the purchaser took merely the right, title and interest of the judgment-debtor and on the death of the latter his right under the Court sale ceased. This case has been followed in Ganpatrao v. Ganesh (1925) 28 Bom. L.R. 395.
5. It is, therefore, clear from the decided cases that if the auction-purchaser is a Watandar of the same watan, the purchaser gets a valid title which survives the death of the original Watandar, whereas in the case of a non-watandar his right ceases on the death of the Watandar. The invalidity of the sale in favour of the non-watandar beyond the lifetime of the original Watandar is specially provided for by Section 5, for it is not competent for a Watandar to alienate for a period beyond the term of his natural life any watan to a person who is not a Watandar of the same watan. If a non-watandar auction-purchaser gets a limited right under the auction-sale, we think that he cannot convey a higher right to his purchaser even though he be a, Watandar of the same watan, for a non-watandar auction-purchaser gets the right, title and interest of the original Watandar terminable on the death of the Watandar judgment-debtor, but he does not acquire the power of disposal excisable by the original Watandar in favour of a Watandar of the same watan which is implicit in the provisions 1 of a 5 of the Watan Act.
6. The learned Subordinate Judge came to the conclusion that if the sale in favour of the Watandar of the same watan were effected after the death of the original Watandar, it would not convey an absolute right, but if the sale be effected before the death of the Watandar of the same watan, it would convey a larger interest to a Watandar of the same watan. We are unable to follow the distinction made by the learned Subordinate Judge. The question is as to the extent of the interest purchased at the auction sale. The non-watandar auction-purchaser got only the right, title and interest of the original Watandar which came to an end on the death of the Watandar, and he could not convey a higher title than himself to his purchaser.
7. It is unnecessary to go fully into the question as to whether the plaintiff, who was born after the alienation, is entitled to bring this suit, for the interest of the non-watandar auction-purchaser came to an end on the death of the plaintiff's father in 1921, and the plaintiff' was born in 1902 and was, therefore, entitled to bring this suit as the heir entitled to the property on the death of his father. This point was not raised in any of the two Courts and we think that the plaintiff has a right to sue for possession of the property on the ground that the auction-purchase in favour of Shivangi did not enable him to convey a higher right to the father of defendants Nos. 1 and 2.
8. We think, therefore, that the view taken by the lower Courts is right and this appeal must be dismissed with costs.
9. I agree. By a sale in execution of a decree against the plaintiff 'a father, his right, title and interest in certain watan lands were sold to persons who were not watandars of the same watan. After the sale but before his death, the purchasers passed on the title which they had received to the appellants who are watandars of the same watan. At the time of the original sale the plaintiff was not born. After his father's death he filed the suit to recover the lands sold and has succeeded.
10. The question at issue is whether the appellants' title to the land is good since they are watandars of the same watan. It has been contended on their behalf that what was sold at the Court sale was not a life interest in the lands, that is an estate good for the life of the judgment-debtor, but an unlimited interest subject to defeasance in the event of the lands being found in the possession of a non-watandar at the date of the judgment-debtor's death. It has been claimed that the policy of the Act, as stated in several decisions of this Court, is merely to preserve the Watan property in the watan family, and that the plaintiff-respondent cannot succeed, since the property is not lost to the family; and it is urged that a title which is put up to sale at a Court sale cannot vary with the status of the bidders and be in doubt up to the final bid, In view, however, of the wording of Section 5, which is to the effect that a Watandar shall not be competent to alienate watan property for a period beyond the term of his natural life, it is difficult for us to escape from the conclusion at which the lower appellate Court has arrived. It may be anomalous that in a Court sale the estate in the property actually sold should be dependent on the status of the purchaser, but this seems to be the natural consequence of the wording of the Act; and I am of opinion that what was actually acquired by the purchasers was simply the possession and enjoyment of the watan property up to the death of the judgment-debtor Watandar. This being so, I agree with the learned Assistant Judge that they were not competent to pass on to their alienee any greater title, and that the appellants, though watandars of the same watan, have now no interest in the land.
11. It has been suggested that, since the respondent-plaintiff was not born on the date of the alienation, and since his father was at that time the last surviving member of the Hindu family, he was competent to alienate the family property as if it was his self-acquired property and the plaintiff is not entitled to recover these lands. But what the father alienated was merely an estate for his own life, and there must have been a remainder left for the benefit of his legal heirs, which vested in the plaintiff-respondent on his birth.
12. I agree that the appeal must be dismissed with costs.