1. This appeal and S.A. No. 349 of 1929 were originally set down for argument before me sitting alone, but it was contended by the learned advocates for the respondents that an important point of law common to both appeals should be heard by a bench, namely, whether Shet Sanadi lands are watan lands or not, and it was stated that the view taken by this Court in Limbaji v. Rama(1), that Shet Sanadi lands were hereditary, was not accepted by Government, who in a subsequent Government Resolution resolved that Shet Sanadi lands were not watan property, and that as in one of these two cases the Judge had followed Limbaji v. Rama, and in the other he had not, the matter should be referred to a Division Bench. The appeals have been accordingly heard by a Bench, but when the appeals came to be argued, other points have arisen, and it is not, as a matter of fact, strictly correct to say that the point regarding the nature of Sanadi lands as watan lands is sufficient for the decision of either appeal, and in S.A. No. 349 of 1929 that point does not really arise. It is better, therefore, to dispose of the two appeals separately, In S.A. No. 320 the plaintiff sued for partition and possession of his 1-6th share in certain property, the last holder of which was one Balkrishna. The pedigree which is given at p. 7 of the print is very complicated, and there are a very large number of members of the family, but we are not really concerned with the intricacies of the pedigree except so far as one or two points arise. The family is a Brahman Kulkarni family, but they hold two Shet Sanadi lands. How those came into their possession is very difficult to understand, as it seems very unlikely that Brahmans and Kulkarnis would perform the duties of a Shet Sanadi, which, as everybody knows, are duties of a menial description such as taking cash to the treasury, guarding the camps of officers, holding horses, and the like. However that may be, the first Court held that the plaintiff was entitled to recover by partition 1-6th of the properties in suit including the Shet Sanadi lands, which he held to be watan. The way in which this point arises is this. On Balkrishna's death, he was succeeded by his mother Parvati, and it is contended that the property, which was watan, would not vest in Balkrishna's mother Parvati under Act V of 1886, and therefore the adoption of defendant No. 1 would not affect the plaintiff's right to share in this property. The District Judge confirmed the decree with a slight variation, reducing the plaintiff's share from 1-6th to 1-7th on the ground that one Govind, who was a natural brother of Shankar, who is the adopted father of Balkrishna, was not a lunatic, and was not disentitled to inherit, and therefore the plaintiff's share in the property would become 1-7th and not 1-6th. I do not go into the details because the appeal has been argued only on certain points, i.e., whether the Shet Sanadi property is watan or not, and another point which has been raised is as to the lunacy of Govind. It is admitted that if Govind was not disqualified by lunacy, the share of the plaintiff would be 1-7th, and not 1-6th, and it is not necessary, therefore, to go into the circumstances which led to that conclusion.
2. As regards the question of whether Shet Sanadi land is watan property under the Watan Act or not, the matter is really concluded by authority, although Government as the result of an inquiry held in 1900 came to the conclusion that they would not treat it as such. We have not got the materials before us on which Government based that conclusion, and we are still bound by the ruling in Limbaji v. Rama. The learned advocate for the appellant has argued that in that case it was not really necessary for the Court to decide whether Shet Sanadi lands were watan or not. The whole decision, however, proceeds on that basis. The question in the case was whether Shet Sanadis' holdings were impartible or not, and in order to arrive at a conclusion on that point the whole question of the nature of the lands and whether they were watan lands or not were gone into at great length by the Bench before whom the case came, and in the judgment of Mr. Justice Ranade, which covers several pages, it has been repeatedly stated that both in view of the earlier decisions, which are referred to, Bhimappa v. Mariappa (1868) 3 B.H.C.R. 128 and Purshottam Talvar v. Mudkangavda Shidangavda I.L.R. (1883) Bom. 420 and the history of the lands, a Shet Sanadi holder is a watandar, and his interest in the land is that of a watandar. The occupation of the land does not represent the payment made for the office, This payment is represented by a fraction of the assessment, which is not recovered from the holder, and this assessment may be increased by the Collector if he deals with the watan under Section 64 of the Watandars' Act. This decision had never been overruled, and is binding upon us, and although Government as the result of subsequent enquiries may have come to a different conclusion, their conclusion is not binding on us, and as I have already said, in the present case we have not got the materials before us on which that conclusion is based. As an abstract question, therefore, I am of opinion that we are bound to follow the view in Limbaji v. Rama, that a Shet Sanadi holding is a watan, and the ordinary law about watandars would apply to it. It would follow, therefore, that on the death of Balkrishna, his mother Parvati, under Act V of 1886, would be postponed to the male watandars, and therefore the adoption of defendant No. 1 would not give him a claim to this property.
3. There is, however, another point in the present case, which is really of more importance, and it is this. It has been argued by the learned advocate for the appellant that in the present case the Shet Sanadi lands are no longer such, as the full assessment has been levied upon them, and the services have been dispensed with, and therefore they are no longer watan lands, even supposing they were so originally. It was stated in detail in the written statement of the defendant that the land had become khalsa, and therefore it was now rayatwari land, and no longer watan land. It is admitted by the other side that full assessment is levied on these lands, although it is not admitted that the services have been dispensed with. But the allegations to that effect in the written statement were never denied in the lower Court, and in view of the fact that the full assessment has been levied it would be apparent on the remarks which I quoted just now from Limbaji v. Rama that the occupation of the land does not represent the payment made for the office and the payment is represented by a fraction of the assessment which is not recovered from the holder. Therefore, when full assessment on these lands is levied, the remuneration for the offciator goes, and the property is no longer assigned for remuneration for the performance of the duty appertaining to a hereditary office. Apart from this, there is no evidence that any duty of a Shet Sanadi has been performed by the Brahman Kulkarnis who are the holders of this land, and as I have already said, ordinary experience shows that such services could not be performed. This being the case, I do not think it is necessary to send the case back for a finding on an express issue on that point. As it is not necessary to send the case for a finding on the point whether the services are performed, the case would be governed by Yellappa v. Marlingappa : (1910)12BOMLR577 , in which it is held that where the services are dispensed with and full assessment is levied on Shet Sanadi lands the effect is to convert them from a Shet Sanadi watan into a ryotwari holding, and to invest the holder of the lands with the rights of an ordinary occupant entitled to it so long as he paid the survey assessment. The powers of the Collector or rather of Government to deal with the watan under the rules made under Act XI of 1852 or Bombay Acts Nos. II and VII of 1863 (the last two Acts are now repealed) are expressly reserved under Section 1 of the Hereditary Offices Act. There could be no doubt, therefore, as to the power of the Government to convert the lands into an ordinary ryotwari tenure by dispensing with the services and withdrawing the remuneration, and although it has been argued by the learned advocate for the respondent that a hereditary office may continue even when the services orginally appertaining to it have ceased to be demanded, I do not think, in view of the ruling in Yellappa v. Marlingappa, and the definition of watan in Section 4 of the Watan Act, that where not only the services have been dispensed with, but also the remuneration for those services have been withdrawn, any question of the property still remaining watan property can arise. It follows, therefore, that on the death of Balkrishna the property called Sanadi land-there are only two lands in this case-would be inherited by his heir irrespective of the provisions of the Watan Act, and therefore the decree of the lower appellate Court must be varied by directing that these two lands should be omitted from the property in which the plaintiff has been awarded a share on partition.
4. I agree, and have very little to add. As to the question whether Shet Sanadi lands are watan or not, we are bound by the decision in Limbaji's case (1898) P.J. 127 and with respect I see no reason to differ from that decision, the Government Resolutions to the contrary notwithstanding. But the real question is not, as the lower Courts appear to have thought, whether the decision in Limbaji's ease or the Government Resolution should be followed but whether these particular Shet Sanadi lands, assuming that they were originally watan, retained that character at the material time, that is to say, when the succession opened. The Hereditary Offices Act is subject to Act XI of 1852, and rules have been made under the latter Act whereby it is provided that watans of this kind may be determined by Government. These rules have been referred to in Phadnis' Hereditary Offices Act, 4th Edition, at p. 277, and also in Yellappa v. Marlingappa : (1910)12BOMLR577 . The effect of the rules is that lands which were originally watan may be converted into ordinary ryotwari lands by the levy of the full assessment. On the pleadings and the admitted facts in this case, I agree with my learned brother that it is permissible to assume that that has been done in this case, as it was held to have been done in Yellappa v. Marlingappa. 1, therefore, agree with the order which my learned brother proposes to make.