1. The plaintiffs in this suit seek to recover possession of certain proportion which are patilki inam lands assigned for the remuneration of the office of Patil in the village of Kotbagi. It is common ground that there are two families holding these patilki inam lands, and that they hold them half and half. The plaintiffs are the sisters of one Kallangouda who succeeded to a half share of the property in that family some thirty years ago, Kallangouda died in 1885 leaving a widow Yellava, and Yellava hold the property, having the ordinary Hindu widow's interest therein, till the date of her death in 1917, and upon that event the succession opened to the deceased Kallangouda. The two plaintiffs are the sisters of Kallangouda, and it is not disputed that tinder (he Hindu law they would be entitled to succeed. But, the property being watan property, it is necessary to consider the provisions of Section 2 of Bom. Act V of 1886 which lays down a special rule of succession in such cases. For the purposes of the present appeal that section runs as follows :-
Every female member of a watan family [I here omit certain exceptions which are not relevant to Chi a wise] shall be postponed in the order of succession to any watan, or part thereof,...devolving by inheritance after the date when this Act comes into fore to every male member of the family qualified to inherit such watan, or part thereof....
2. The question, therefore, is whether the plaintiffs are excluded by the operation of this.statute. And that gives rise at once to the question whether the plaintiffs and defendants are members of a watan family. The word 'family' is defined in Section 4 of the Hereditary Offices Act, 1874, and the definition is as follows:-
Family' includes each of the branches of the family descended from an original watandar.
3. The meaning to be attached to this definition has been explained in Bai Laxmi v. Maganlal I.L.R. (1917) 41 Bom. 677, 19 Bow. L.R. 730. The following passage from the judgment of Scott C.J. may be cited (p. 684):-
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.
4. Thus, in order that the defendants may show that the plaintiffs are postponed to them in the order of succession they must show that there was an original watandar from whom these two families were descended. It is not sufficient is show that there was a common ancestor. Let us assume that there is a family as in the subjoined pedigree.
5. In that case on the death death of D the original watandar, the estate would go half and half to his uncles B and 0 from whom the two supposed existing branches are descended, And in such a case, as explained in the case cited, the female heirs in the one branch would not be excluded by the male heirs in the other. Many similar cases could be put, but of course they are all conjectural. I merely seek to illustrate the position that it is not sufficient for the defendants to show that there was a common ancestor from whom these two families are descended. They must also show that that common ancestor was a holder of this watan.
6. The first point, therefore, would be whether there is evidence going to show that these persons with whom we have to deal are descended from a common ancestor. Now we have here two families of the same caste living in the; same village holding half and half patilki inaam lands. And in the typical case those persons would in all probability be descended from the same person. Ordinarily the grant of a watan is to an individual, and it is held by his descendants, and may be divided between thorn in the course of family partitions. That, I say, is the typical case. There may be eases where a portion of the watau, before the date of the legislation prohibiting the alienation of watan, has gone out of the original family into another family. But that is a less common case. The evidence with which we have to deal must be considered in that light. It is impossible in matters of this kind, where the grant is an ancient one, and there have been many degrees if the family since the date of the grant, to expect direct evidence of the precise relationship. But if there is evidence, whether what is ordinarily called 'hearsay' evidence or otherwise, that two families so holding a watan half and half are related to one another, and it' that relationship shows that they are, to use a vernacular term, bhaubands, then it is by no means a violent inference that they are descended from a common ancestor. And there is evidence in the present case which points to some such conclusion. [His Lordship summarised the evidence on the point and observed :]
7. That is a summary of the evidence upon this question of relationship, and upon that evidence I should he inclined to hold that it is established that these two families are in reality different branches of one and the same family. And seeing that the relationship having regard to the terms used implies male descent, it is not an unreasonable inference that these persons are in all probability descended from a common male ancestor, To that extent, I think that the lower Court has perhaps not fully appreciated the weight of the evidence.
8. But when that is said, it is absolutely impossible to say how remote that common ancestor wag. Nor is it possible to say whether he existed before or after the acquisition of this watan. It was urged upon us that upon this latter point some light could be derived from other documents in the case bearing upon the history of a watan as distinct from the holders thereof. [His Lordship referred to those documents and proceeded;]
9. Thus when all is said and done, we come back to this position. At some remote period there probably was a common ancestor of these two families. At some unknown period some member of the family acquired the watan, that is, assuming that there was a grant by the Peshwas Government to one individual, but whether the acquisition was made by the common ancestor or before his time or after his time is a matter of the merest conjecture. If then reference be made once more to the conjectural pedigree which I set out at the beginning of this judgment, it would be seen that though there may be u original watandar from whom these persons are descended, there may just as well have been a collateral who was the original watandar from whom the two existing branches of the family inherited this property. And there are a variety of other hypotheses consistent with the facts of this case which it is unnecessary to enumerate. It follows, therefore, that there is a fatal obstacle to the defendants' success, and that they have failed to show that plaintiffs, the nearest heirs under Hindu law, are excluded by the operation of Section 2 of Bom. Act V of 1886.
10. There is one farther point to which reference was made in the course of argument, that is, whether in these circumstances it can be said that the defendants are persons qualified to inherit under the Hindu law. Now iiora we me entirely in the dark, because we do not know how remotely they are connected with the plaintiffs, assuming the connection to be established, and therefore without a clear knowledge of the facts, it is somewhat difficult to endeaveur to apply legal principles. The question whether any remoteness of descent would exclude a samanodaka has been considered in several cases. We have a decision of our own Court in Bai Devkore v. Amritram Jamiatram I.L.R. (1885) 10 Bom. 372, and that decision lays down that the word samanoclaka, meaning literally those participating in the same oblation of water, includes descendants from a common ancestor more remotely related than the thirteenth degree from the propositcus. Such cases are of very rare occurrence, but so far us this Court is concerned, that decision is still an authority. And if it be followed, however remote the descent might be, the result would be that the defendants would be qualified to inherit.
11. But in Rama Row v. Kuttiya Gounden I.L.R. (1916) Mad 654, the Madras High Court has taken a different view. And they have dissented from the Bombay decision. They say there that the general tendency is to confine the relationship to the fourteenth degree. In Kalka Parshad v. Mathura Parshad 10 Bom. L.R. 1088, the matter incidentally came for consideration before their Lordships of the Privy Council. But the judgment does not contain any decision upon the exact point. It appears to have depended upon their Lordships' view of the facts of the particular case, and therefore, so far as I understand it, that decision furnishes no guide. But upon the facts of this case it is unnecessary to decide that point, because there is, as I have indicated, in any view, a fatal obstacle in the way of the defendants. It follows that this appeal must be dismissed with costs.
Amberson Marten, Kt., C.J.
12. I agree. The learned pleader for the appellant has taken us carefully and in detail through all the documents and facts which tell in favour of his clients. He has clarified the position by giving numbers to the various parties appearing in the rival pedigrees produced before the Inam Commission in 1844, viz., the pedigree, Exhibit 92, produced by the branch of the defendants, and the pedigree, Exhibit 93, produced on behalf of the plaintiffs branch. The necessity for this will 'be seen by the paucity of names in this family. There are no less than three Kallangoudas who play an important part in this story. It was Kallangouda No. 13 who produced the pedigree, Exhibit 92, It was Kallangouda 4-F who produced the pedigree, Exhibit 93. It was the latter's grandson Kallangouda 4-H, who died in 1885 and whoso widow Yellava died in 1917, and thus opened the succession which is now in dispute.
13. On the merits of the case there are several interesting points that have been raised, but the crux of the case seems to me to be whether the defendants can show that they were not merely descendants of a common ancestor with the plaintiffs, but that both the plaintiffs and the defendants were descended from a common watandar. That is the effect of the decision of this Court in Bai Laxmi v. Maganlal Jamiatram I.L.R. (1907) 41 Bom. 677, 19 Bom. L.R. 730. There Sir Basil Scott laid stress on the moaning of the word family, viz., descent from a common ancestor and held that under the Hereditary Offices Act, the common progenitor must be a watandar. In Balai v. Subba : AIR1927Bom191 . Mr. Justice Patkar accepted the interpretation put by Sir Basil Scott on the meaning of the word family, and held that the particular person in that case was a descendant from the common watandar. On the other hand, in Sir Basil Scott's case the parties were not descended from the common watandar, because as is shown at p 731 of the report in 19 Bom. L B. 730, the original watandar was one Gopinath, and on his death collaterals succeeded to the property. No doubfc there were separate sanads granted by Government on Gopinath's death in that case, but apart from that the case is an illustration of what might easily have happened in the present case in days long gone by, in the absence of any positive knowledge on the point.
14. As to whether the parties in the present ease were descended from a common ancestor, it may will. be that the learned Judge went too far in holding that even that point was not proved. But we have stopped counsel for the respondents on his argument on that and other points in the case. Accordingly, speaking for myself, I do not propose to give a definite finding on the point. I am prepared, to assume for the sake of argument that the defendants were descended from the same common ancestor as the plaintiffs were.
15. But assuming that, in my judgment, the next atop, which I regard as the crux of the case, is fatal to the defendants. After carefully considering all the documents and matters laid before us, and after giving duo consideration to the presumptions which we are entitled to make under Section 114 of the Indian Evidence Act, I am quite unable to say that it is any more likely hero that the original watandar was a common ancestor of both branches than that those branshos acquired the watan by collateral descent. In 1844 before the Inam Commission the respective parties who gave evidence and produced those pedigrees, I mean Kallangouda No. 13 and Kallangouda No. 4-F, were unable to say who the original watandar was. In 1880 when the defendants' branch sought to acquire the land now in dispute, viz., that hold by the plaintiff's, they were unable to satisfy the trial Judge as to their genealogy, and their right to succeed even if they had been able to prove that the then succession by Kallangouda No. 4H was not a rightful succession. In fact they failed on the latter point.
16. If then in 1845 and in 1880 the defendants were unable to prove successfully their exact heirship, it is not strange that the present defendants are in no better position. I appreciate what Mr. Desai for the appellants has forcibly urged upon us that the watan lands have been equally divided over a long series of years, into eight and a half mare for each branch, a mar being said to h& about seventeen acres. I also appreciate that it does not necessarily follow that because a watan has been partitioned, it is thereby split up into two distinct watans. The contrary has been held in Yeshwant v. Satyanna (1900) 2 Bom. L.R. 420. But from that it seems to me a long step to go to hold that the original watandar must have been a common ancestor whose descendants subsequently partitioned the watan, and that it is unreasonable to hold that there may have bean a collateral succession from the original watandar. That being so, this point, as I have already intimated, seems to me to be fatal in any event to the defendants.
17. Consequently, in my judgment It is unnecessary to go into the point raised by ray brother Crump as to whether the defendants, being further remote in degree than the thirteen degrees, could claim in any event to succeed to this property. It it was necessary the case in Madras and the case in the Privy Council would have to be considered along with the decision in Bai Devkoro v. Amritram Jamiatram I.L.R. (1885) 10 Bom. 372.
18. I should have mentioned that certain pedigrees, Exhibits A, B and 0, were not relied on to any great extent by counsel for the defendants. Even so far as they are admissible, they do not carry the matter much further on what I have described as the main point of the case, I should also state that I fully appreciate that it has been held that the definition of family in the Watan Act is an inclusive definition and not an exclusive definition. But, notwithstanding that, on the authorities of this Court, it does not absolve the parties from the necessity of proving that the original watandar was an ancestor of the parties. In the result, therefore, I agree that this appeal must be dismissed with costs.
19. As to the question of interest on costs, the learned Judge should not have awarded interest at twelve per cent. The maximum fixed by Section 35(3) of the Civil Procedure Code is six per cent., but as he has considered this to be a case whore interest on costs ought to be given, we will let his order in that respect stand subject to substituting six per cent, for twelve per cent.