Basil Scott, Kt., C.J.
1. According to the findings of the two lower Courts land in certain villages became the Vatan property of the original Vatandar named Gopinath. Gopinath had no descendants, and so far as we can tell, at the time of his death his nearest relations were Girdharlal, the son of his father's elder brother Bhulabhai, and Mahasukhram, the son of his father's younger brother Maharaiji. In 1868, fresh Sanads were issued by Government apparently to meet the situation created by the death without issue of the original Vatandar. There was a Sanad of September 1868, Exhibit 130, which related to the village of Mullera. There was a Sanad of December 1868, Exhibit 109, which related to the villages of Amod and Rahod, and there was in the same year a Sanad, Exhibit 110, relating to cash allowances. At the time of the issue of Sanad, Exhibit 130, Dinanath, son of Girdharlal, was apparently alive, and he is stated to be the holder of the land in the village of Mullera, his Vahivatdars being Venilal Maneklal, his great nephew, descended from an elder son of Girdharlal, and his son Balwantrai Dinanath. In the Sanad, Exhibit 109, of December 1868, Dinanath Girdharlal is not mentioned. If he was dead, the representative member of the eldest branch of Girdharlal's family would be Venilal Maneklal. He is mentioned in the Sanad as the holder of the lands in the villages of Amod and Rahod, and his Vahivatdar is stated to be Jamietram Mahasukhram belonging to the younger branch descended from Gopinath's younger uncle. The cash allowance was allotted to representatives of the families of Girdharlal and Mahasukhram jointly.
2. The present suit relates to the lands in the villages of Amod and Rahod which were enjoyed up to July 1911 by members of Girdharlal's family or their widows. Upon the death of the last widow on that date the defendant entered into possession. She is the granddaughter of Dinanath. The plaintiffs representing the branch of Mahasukhram claim to be entitled to possession of the Vatan lands in these villages on the strength of Section 2 of Bom. Act V of 1886, which provides that 'every female member of a Vatan family other than the widow of the last male owner shall be postponed, in the order of succession to any Vatan, or part thereof, or interest therein, devolving by inheritance after the date when this Act comes into force, to every male member of the family qualified to inherit such Vatan, or part thereof, or interest therein.'
3. The learned Judges in the lower Courts have held that the plaintiffs are male members of the family qualified to inherit, and as such exclude the female defendants.
4. It is contended on behalf of the appellants that that decision is incorrect, for 'family' is defined by Section 4 of the Vatan Act III of 1874 in these terms: it 'includes each of the branches of the family descended from an original Vatandar,' and it is contended that the original Vatandar being Gopinath, the parties to the suit are not descended from him. They are, therefore, not members of his family, and the plaintiffs not being male members of the family are not entitled to oust the females in possession, and a fortiori if the Vatan family is to be taken to be the family of Girdharlal, whose son Dinanath was the representative of the senior branch at the time of the issue of the Sanads, then the plaintiffs are not members of that family. That according to the scheme of the Act the original Vatandar is the source of title to succession or service, is, it is contended, shown by Section 53, which provides that ordinarily 'every deputy appointed under the Act should be a member of the same family to which the representative Vatandar whose duty it is to officiate belongs, if there be a member of such family fit and willing to officiate, or, in default of such member, a Vatandar of the same Vatan who is fit and willing to officiate, and who is descended from the same original Vatandar as the representative Vatandar whose duty it is to officiate.'
5. The learned District Judge in dealing with the definition of 'family' observes that it is inclusive and not exclusive, that is to say, that it does not exclude the application of the ordinary meaning of the word 'family' Now the Dictionaries of Webster and Murray are both agreed in giving as one of the meanings of the word 'family' (which would be an appropriate meaning in the present connection) 'those descended (really or putatively) from a common progenitor'. In the case of a 'Vatan family,' taking the expression family in the ordinary non-technical sense it does not appear to be unreasonable to assume that the common progenitor must be a Vatandar, and if so, there was no Vatandar before Gopinath in the family, and excluding Gopinath, Dinanath was the first Vatandar holding a Sanad under Government. Jamietram Mahasukhram never appeared in the Sanads as a Vatandar, but only as a Vahivatdar. It is, therefore, clear that Jamietram Mahasukhram, and his sons, the present plaintiffs, are not members of the family of Dinanath Girdharlal, taking him to be a Vatandar, nor are they persons descended from a common progenitor Gopinath whose name appears in the proceedings. Therefore in either case they cannot come in to exclude the present defendants who claim directly through Dinanath Girdharlal. We therefore allow the appeal, set aside the decree of the lower Courts, and dismiss the suit with costs throughout on the plaintiffs-respondents.
6. It is common ground that the acquirer of the Vatan was Gopinath who died without leaving any lineal descendant. I do not know the exact date of his death, or what was done by his collaterals immediately following thereon. But in the year 1868, five years after the Summary Settlement of 1863, commutation Sanads were issued by Government in respect of this Vatan pursuant to the Summary Settlement. These Sanads are Exhibits 109 and 130 in the case, the first relating to lands in Amod and Rahod, and the second to lands in Mullera. The dates of the Sanads were December and September 1868 respectively. The grantees were in the case of Amod and Rahod lands, Venilal Maneklal, and incidentally it was mentioned that his Vahivatdar was Jamietram Mahasukhram, and in the case of the Mullera lands Dinanath Girdharlal whose Vahivatdars were stated to be Venilal Maneklal and his own son Balwantrai Dinanath. The question arises, first, whether these Sanads represent a distribution of the Vatan between the collateral branches of the family of the original acquirer Gopinath. It should be mentioned that the cash allowance, as distinct from the lands, was in the year 1868, similarly granted, but jointly, to Venilal and Jamietram, described as the heirs of Gopinath, Exhibit 110. Whatever arguments may be founded upon the insertion of the name of Jamietram in Exhibit 109 as Vahivatdar of the land, it cannot be disputed but that these Sanads, ordinarily construed, grant the respective portions of the original Vatan mentioned in them to members of the family of Girdharlal, and it is equally common ground that the actual possession and enjoyment of the lands at any rate remained with the members of that family down to the time of the last male holder Pransukhram, and afterwords with his widow until her death. It is perfectly clear, therefore, that after the extinction of the line of the original acquirer Gopinath, the lands by grant or adverse possession, remained indisputably in the family of Girdharlal.
7. The only dispute in the case turns upon the proper, interpretation of the term 'family' as used in the Vatan. Act generally, and more particularly in Section 2 of the Amending Act V of 1886. I adopt the interpretation put upon this term by my Lord the Chief Justice for the purposes of the Vatan Act, and as soon as that is done, it necessarily follows that there is no one in the plaintiffs' branch at all who can claim to be descended either from the original Vatandar, that is, Gopinath, or those who followed him by grant or acquisition of their own, that is to say, Dinanath Girdharlal and his descendants or Venilal Maneklal and his descendants. Upon these considerations I hold that for the purposes of this suit, the plaintiffs are out of Court, and cannot claim in virtue of Section 2 of Act V of 1886 to exclude the females who are claiming in direct descent from the last male holder Pransukhram.