Lallubhai Shah, Ag. C.J.
1. [His lordship first dealt with the questions of fact arising in the case and came to the conclusion that it was not shown that the lands in suit came to the plaintiff's predecessors-in-title under the sale-deed of 1755, and then continued: ] The next point relates to the question as to how they were acquired. On this point it seems to me that the view taken by the learned trial Judge is correct that under the circumstances the lands must be taken to have been acquired in any one of the ways in which such acquisition is possible. It must be remembered, as pointed out by the learned Judge, that the fact that some of the lands were entered as part of the village site later on was merely an accident, due to the survey in the nineties, when it was found that it was not being used for agricultural purposes. Though at this distance of time we may not know as to when and how these lands were acquired, it is clear that in any alienated village the Inamdar or the Saranjamdar has full right of disposal with reference to holdings which are either relinquished or forfeited for any valid reason If the survey settlement has been extended to the alienated village, the holders of lands in the village would have the same rights and obligations as occupants in a Khalsa village It is not suggested that the survey settlement was extended to the said village prior to the resumption. If it had been, the Khatedar would clearly have the rights of an occupant under the Bombay Land Revenue Code as in a Khalsa village according to Section 217 of the Bombay Land Revenue Code. Whenever there is any relinquishment on any ground, or forfeiture of land for non-payment of the royal share of the revenue, the land would be at the disposal of the Saranjamdar, and he may dispose of it by giving the Mirasi or the occupancy right to any third person or by taking it up himself. It is also possible that the Mirasi or occupancy right would be acquired for consideration. It is true that in the present case the plea of purchase set up is not established, and, as no plea of any other purchase is put forward, that possibility may be left out of account. Then it is possible that the line of any family may become extinct; and there being no heirs, the Saranjamdar may take possession of the land. But in such a case his possession would clearly be wrongful. In that case the right would belong to the Crown as the ultimate heir of the deceased heirless person. That right forms no part of the Saranjam. Whether it be a Saranjam village or an Inam village, the right in such a case would belong to the Crown and to the Crown only in the absence of any statutory provision to the contrary. It is not suggested that there is any statutory provision on the point. A Saranjamdar who takes possession of any Mirasi or occupancy holding in this manner Would hold it wrongfully and adversely to the Crown. As a possible mode of acquisition, it must be recognized; but I do not think that that possibility can help us in the decision of this case, because if the Crown claim to have acquired a right to any of these lands on the ground that the holders died without leaving any heir, it must be alleged and proved. See Gridhari Lall Roy v. The Bengal Government (1868) 12 M.I.A. 448 and The Secretary of State v. Haibatrao Hari I.L.R. (1903) 28 Bom. 276; 6 Bom. L.R. 43. Without any proof of that plea with reference to any particular holding, the mere possibility of the lands being acquired in that way by the Saranjamdar could not help us in this case. I refer to this circumstance because the learned counsel for the appellant has argued that it is possible that the Crown is entitled to the Mirasi or the occupancy right of these lands and that if that possibility is not excluded by the plaintiff definitely proving that the lands have been otherwise acquired, they must be treated as acquired in that wrongful manner by the Saranjamdar. Issue No. 2 no doubt has been framed in the terms in which these possibilities have been stated in the Commissioner's order and repeated in the plaint. But the learned Judge distinctly records his finding on that issue in the sense indicated in his judgment. I accept the finding in the sense indicated by the learned Judge in his judgment, subject to the reservation that really the occupation by the Saranjamdar of the lands in those cases where the Crown would be the ultimate heir would be wrongful, and that under the circumstances the fact that Raghunathrao was found to be the Khatedar in 1884 and 1886 must be attributed more reasonably to a legal origin, and not to a wrongful act on the part of the Saranjamdar. Even if it be assumed that the Saranjamdar would be entitled to the holding on the basis that the Mirasi right becomes extinct, when the holder dies without heirs, and that there is no Mirasi right left, it is clear that the land would be in the same condition as any other land which has been relinquished; and the result would be same so far as the Saranjamdar's right to dispose of it is concerned. In that view of the matter, the other possibilities left are that the lands may have been acquired either in consequence of relinquishment on the part of the holders or in consequence of forfeiture for non-payment of the royal share of the revenue or any other like cause. It may be mentioned in connection with this point that Exhibit 137, which is a statement of the village officers recorded in September 1894, mentions all the numbers in suit, and some more numbers as really having been in the occupation and Khata of Annasaheb Vinchurkar. This statement was recorded after the death of Raghunathrao, and at the date of the statement these lands stood in the name of Shivdeorao, i. e., the adopted son of Raghunathrao. The statement with reference to Nos. 92 and 99 does not concern us. With regard to one of the numbers in suit, viz., 201, it is stated that it formerly stood in the name of Dhondi valad Mahipati Avad, and as he did not pay its assessment, Annasaheb got the number transferred from his name to his own name about eight or nine years ago. With regard to all the other lands, it is stated that they stood in the name of Annasaheb for the last 25-80 years. The two village officers state that they do not know how the lands were acquired. Thus all that we know about these numbers is that it cannot be ascertained on this evidence as to when and how they were acquired, But we know that they have been in the possession of the plaintiff and his predecessors-in-title for several years as Khatedars.
2. [His lordship at this point held that neither adverse possession nor estoppel against the defendant was proved, and proceeded:--] The only point that remains to be considered is the point involved in issue No. 6 in the lower Court. This point has formed the subject matter of interesting arguments before us. It may be mentioned at the outset that in this case it is an admitted fact that the Saranjam was a grant of the royal share of the revenue, and not of the soil. If it were a grant of the soil, the Government can resume the soil; and in that case the decision of their lordships of the Privy Council in Secretary of State for India in Council v Laxmibai (1922) L.R. 50 IndAp 49 : 25 Bom. L.R. 527 would clearly apply, It is urged, however, that even in a case where the grant is of the royal share of the revenue, when the Government resume the grant, they are entitled not only to the royal share of the revenue, but also to such occupancy rights as the Saranjamdar may have acquired during the continuance of the grant for his own personal benefit. That is the argument which, it is urged by Mr. Coyajee, was advanced by Sir George Lowndes before their lordships of the Privy Council in Secretary of State for India in Council v. Laxmibai, and that is the argument which is now urged before us. It may be mentioned that in that case the point decided was whether the Saranjam was a grant of the soil or of the royal share of the revenue on the facts of that case. It was decided that it was a grant of the soil, and on that basis the decision of this Court was overruled. A further question was raised in the arguments for the appellant in that case but it is difficult to say that the question which arises for our decision in this case was considered and decided in that case. Mr. Coyajee has not urged that the point that we have to decide is covered by the judgment of their lordships of the Privy Council, but has suggested that the point which the learned counsel for the respondent in that was was supposed to have given up, was exactly the point which he now urges before us. If i felt sure that that was the point given up I should practically accept it as decisive of the point But it is not at all clear from the judgment that that was the point given up. The plaintiff in that case claimed in the alternative his right to hold the lands, whether the grant was of the royal share of the revenue or of the soil. Their lordships quote this clause from the plaint and refer to 'raitava rights' with regard to the occupation of lands which were unoccupied at the date of the grant. Then it is stated that the latter claim, i. e., the claim with regard to the occupation of lands not occupied at the grant, was abandoned. This would apparently refer to the claim made in the (laint that even if it was a grant of the soil, the plaintiff would have a right to hold the lands, That point appears to me to have been given up. Looking the the arguments of the learned counsel for the respondent as reported and to the judgment, I cannot say that it was considered and decided that even if it was a grant of the royal share of the revenue, the plaintiff could have no 'raitava rights' in the lands not occupied at the date of the grant. The principal point argued and decided in the case was whether the grant was of the royal share of the revenue only or of the soil. I read that judgment as deciding that where there is a grant of the soil all the rights of the occupancy which have accrued with reference to lands unoccupied at the date of the grant during the continuance of the grant must go with the grant as part thereof when it is resumed. But I am unable to read that judgment as deciding that even though it be a grant of the royal share of the revenue, any Mirasi or occupancy right howsoever acquired by the Saranjamdar over the land during the continuance of the grant must go with the grant when the grant is resumed.
3. It is, therefore, necessary for us to consider whether, when the Government resume a grant, which is a grant of the royal share of the revenue, they can acquire the Mirasi or the occupancy right, which is a heritable and transferable right, in certain holdings, of which the Saranjamdat has become the Khatedar during the continuance of the grant. I may mention that the lands in suit are not stated on either side to be unoccupied lands at the date of the original grant, though it makes no difference in the view accepted in this Court whether they were unoccupied or not. If in the case of unoccupied lands the Saranjamdar or Inamdar could acquire occupancy rights 'for his own' benefit, a fortiori he could retain those rights, if acquired from others who had similar occupancy rights at the date of the grant. The view taken by the Courts in this Presidency during the last fifty or sixty years has been that when the Government resume a grant of the royal share of the revenue, they can resume what they granted, namely, the royal share of the revenue and nothing more. In the case of Saranjam, it was so held in Ganpatrav Trimbak Patwardhan v. Ganesh Baji Bhat I.L.R. (1885) 10 Bom. 112 by Sargent C.J. and Mr. Justice Birdwood. A reference was made to the Government Resolution of May 27, 1854, in which the meaning of the word 'resumption' was indicated. It is pointed out in that resolution that any person in the occupation of land will not be disturbed in his possession so far as he pays the assessment according to the revenue survey settlement, or in districts which have not been subject to the operations of a survey, according to the rights obtainable in the village in which the land is situated. According to this resolution it was held in Vishnu Trimbak v. Tatia Pant (1863) 1 B.H.C.R 22 that when the Government resume the Inam they can only resume the right to levy full assessment, and could not take possession of the land. After referring to the said resolution and the case of Vishnu Trimbak v. Tatia Pant, the learned Chief Justice observed as follows (p 116):--'In the present case we are concerned with a saranjam, and not an inam; but no legislative enactment or Government resolution has been cited in support of there being any difference between the tenures as regards the effect of resumption by Government.' In that very judgment at p 117 of the report the observations of Mr. Justice Melvill in Ramchandra v. Venkatrao I.L.R. (1882) 6 Bom. 598 that the 'saranjamdar may deal with all unoccupied lands as may be best for the purposes of revenue, and may either cultivate them himself or through tenants' are referred to, and explained as meaning that the Saranjamdar may acquire occupancy rights, which remain unaffected by the resumption of the Saranjam except as to the assessment thenceforth payable to Government This view was affirmed by Sargent C.J. and Nanabhai Haridas J. in Hari Sadashiv v. Shaik Ajmudin I.L.R. (1886) 11 Bom. 235.
4. There have been several cases with reference to Inams in which the view as to the effect of resumption as indicated in the Government Resolution of 1854 has been followed, and in the two cases above cited it has been held that if the grant be of the royal share of the revenue only there is no difference between a Saranjam grant and an Inam grant as to the meaning of 'resumption' It is perfectly true that in the case of a Saranjam grant the Saranjamdar holds it for his life, and on his death the grant is liable to be resumed. That would not be so in the case of an ordinary Inam. But this distinction existed as much when the case of Ganpatrav v. Ganesh was decided as it exists now and it could not have been ignored by the learned Judges who decided these cases. In fact the observations of Mr. Justice Melvill in Ramchandra v. Ven-katrao have been always understood in this Presidency as giving the Inamdar or Saranjamdar a right to use the land to his best advantage including the right to create occupancy or Mirasi rights in his favour, as forming part of his private property subject to the payment of assessment or the royal share of the revenue. It is only during recent years that with regard to Saranjams the correctness of this view has been questioned on behalf of the Government, It was questioned in the case of Gururao Shrinivas v. Secretary of State for India I.L.R. (1916) 41 Bom. 408; 19 Bom. L.R. 117 which went up in appeal to the Privy Council, and in which the decree of this Court has been set aside.
5. In this Presidency there had been a long course of decisions on two distinct points, first, that in the absence of any evidence to prove that the grant is of the soil, the presumption is that the grant is of the royal share of the revenue, and secondly, that in the case of a grant of the royal share of the revenue, it is open to the grantee to make the best use of the grant for his own benefit that is to appropriate lands to his own use, subject to the payment of the royal share of the revenue, and to create rights of occupancy in his own favour, or in favour of third parties. Subject to the payment of the royal share of the revenue, all the rights in the land could be acquired by him and would belong to him, if so acquired; and the resumption of the grant would mean the resumption of what the Government granted, i.e., the royal share of the revenue, and not any other right which the grantee during the continuance of the grant could acquire for himself and for the benefit of his heirs. The decision in Secretary of State for India v. Laxmibai, and the other decisions of their lordships of the Privy Council which have been referred to in that case, definitely overrule the view taken on the first, point, relating to the presumption, as to the nature of the grant subject to the observations on that point in the judgment, namely, that 'it must be determined in each case upon the facts what was the quality of the original grant, although it may well be that it is ordinarily a grant of the royal revenue only' (p. 55), As regards the second point, as I read that judgment, there is no decision of their lordships of the Privy Council; and we are left with the course of decisions of this Court on that point exactly as it was when the judgment in that case reported in I.L.R. 41 Bom. 408 was pronounced-
6. Apart from the decisions, it seems to me that on principle in the case of a grant of the royal share of the revenue, when the grant is resumed all that the Government can fairly claim and would be entitled to, would be the royal share of the revenue. Whether the grant is in the nature of Saranjam or Inam, the grantee would be entitled to all the incidental benefits of the grant, namely, the right to acquire the occupancy rights in lands either not occupied or held by others and forfeited on one ground or another or otherwise acquired from the holders. The mere fact that the Saranjamdar is in a sense a life tenant does not, in my opinion, alter the ordinary incidents of a grant by way of Saranjain. The determination of the exact rights of a Saranjamdar appears to me to be more a question of the connotations of a Saranjam grant than of applying the analogy of a life estate, subject to all the limitations to which an ordinary life tenant could use such estate.
7. The course of decisions in this Presidency has been in favour of the view which I have already indicated and in the absence of any definite decision on the point to the contrary, it seems to me that that view should be followed in this case. I may mention that in Balvant Ramchandra v. Secretary of State I.L.R. (1908) 32 Bom. 432 : 10 Bom. L.R. 531, decided by Sir Lawrence Jenkins C.J. and Batchelor J., it is pointed out (p. 437) that 'since Melvill J.'s judgment in 1882, the law in this Presidency has always been that a grantee of the revenue is entitled to make such profit as he can out of unoccupied lands' and a reference is made to the ease of Ganpatrav Trimbak Patwardhan v. Ganesh Baji Bhat I.L.R. (1885) 10 Bom. 112 and Rajya v. Balkrishna Gangadhar I.L.R. (1905) 29 Bom. 415 : 7 Bom. L.R. 439.
8. I refer to these observations to indicate how for a long time in this Presidency this has been the accepted view with regard to Inams and Saranjams. In 1854, when. Government issued their Resolution under Act XI of 1852, the inquiries under that Act were not confined to Inams only, but related to other grants also. The preamble to the Act shows that the inquiries under the Act were contemplated with reference to claims against Government on account of Inams and other estates wholly or partially exempt from payment of land revenue; and the pro vision for making rules relating to Saranjams is to be found in that Act in Clause 10 of Schedule B to that Act.
9. It has been urged on behalf of the appellant that the provisions of s 90 of the Indian Trusts Act should apply to this case. Under that section where a tenant for life, by availing himself of his position as such, gains an advantage in derogation of the rights of other persons interested in the property, he must hold, for the benefit of all persons so interested, the advantage so gained. It is no doubt true, as I have already stated, that a Saranjamdar is in a sense a tenant for life. But during the continuance of the grant he occupies no fiduciary position with reference to the grantor or any other person: and it seems to me to be perfectly consistent with his life-estate to hold that the Saranjam grant gives him the right to make the best possible use of the lands in the village or of the occupancies that may come to be dealt with by him for his own personal benefit. His position is not exactly the position of that of a tenant for life. But even if it be, it seems to me, when he so uses the land for his own benefit, or acquires the occupancy and Mirasi rights in the land for his own benefit, he does not act in derogation of the rights of other persons interested in the property. The person interested in the Saranjam is the Government and the right of the Govern ment is limited to the royal share of the revenue. If we take the successors to whom the Saranjam may be re-granted as persons interested, it does not derogate from their rights, which are limited to the royal share of the revenue. The acquisition of such personal rights of occupancy does not appear to me to be in derogation of the rights of others. The right of the Saranjamdar as such is limited to the royal share of the revenue, subject to the existing occupancies in the village, and it cannot be said that the Saranjamdar acts in derogation of the rights of others by acquiring occupancy or Mirasi rights for himself. In this view of the matter the English decisions which give effect to the principle underlying Section 90 of the Indian Trusts Act. as regards tenants for life acquiring certain interests during their tenancy do not appear to me to apply to a Saranjam grant.
10. The Learned counsel for the appellant has also relied upon the analogy of Section 108 of the Transfer of Property Act so far as it relates to the rights and liabilities of a lessee. As regards this argument also, it seems to me that the real difficulty in the way of accepting it is that the analogy does not appear to me to be correct, A Saranjam grant carries with it certain incidental benefits to the grantee personally which an ordinary lease or a tenancy for life would not give.
11. It is necessary to add a word with reference to the rules made with regard to Saranjams by the Government in 1898. This particular Saranjam was resumed in 1892, after the death of Eaghunathrao in 1689, and there were no rules then. But the rules as framed in 1898 do not in effect state anything more than what were ordinarily known to be the customary incidents of a Saranjam grant. There is nothing in the rules which is inconsistent with the view that in the rase of a Saranjam grant of the royal share of the revenue only, the resumption could not mean anything more than the right to take the royal share of the revenue. Though the learned trial Judge decided this case at a time when he was not only entitled but bound to follow the decision in Gururao Shriniivas' case which has now been reversed, even now it seems to me that the only course that we can adopt is to follow the course of decisions of this Court on this point quite apart from the view taken by this Court in Gururao Shriniwas v. Secretary of State.
12. The result, therefore, is that the defendant's appeal must fail....
13. I would accordingly dismiss Appeal No. 245 of 1920 and allow Appeal No. 281 of 1920, and vary the decree under appeal by deleting all references to one-third share of the plaintiff in the lands, and directing that all reliefs granted to the plaintiff should operate fully in favour of the plaintiff without the limitation as to one-third share. This variation to be without prejudice to the rights, if any, of other co-owners in the lands in suit. The defendant to pay the costs of the plaintiff throughout including the costs of the translations.
14. [His lordship after disposing of the question of fact that the plaintiff did not acquire the lands by purchase; went on:] As to how the suit lands came to be shown in the Khata of the deceased Saranjamdar or of the original plaintiff, I agree with the view taken by the learned District Judge that all these survey numbers came to be put in the name of the Saranjamdar or the plaintiff either on account of the line of Khatedars, who were previous tenants, becoming extinct, or a tenant relinquishing his holding or his losing it by sequestration for non-payment of land revenue. Exhibit 137 is in my opinion important and reliable evidence to this effect. Survey No 201 is there stated to have been acquired by forfeiture in about 1885, and the probabilities are that the lands in suit were similarly acquired: cf. the reference to Survey Nos. 92 and 99 in Exhibit 137. I also agree with Mr. Coyajee that issue No. 2 is properly drawn on the pleadings. Paragraph 3 of the plaint puts up the alternative case that the land must have gone into the-possession of the plaintiff's ancestors by reason of the extinction of the Khatedar's family or by reason of its resumption for arrears of assessment, and paragraph 4 of the written statement similarly refers to the Saranjamdar's right to hold lands that had passed into the possession and enjoyment of the family by the death of the Khatedar without leaving any heir or by forfeiture. In my opinion, therefore, the issue was properly based on these two methods of possible acquisition. But acquisition through the lands being relinquished by a tenant may, in my opinion, be held to be covered by this particular issue, as the acquisition of lands in this way is on a similar footing to acquision by extinction or forfeiture. My learned brother is of opinion that the case of lands becoming vacant owing to the extinction of the line of any family that previously held it as mirasdars is on a different footing to the case of lands acquired by relinquishment or forfeiture, and that in such a case the lands would escheat to the Crown and the possession of the Saranjamdar, if he took the lands, would be wrongful. I do not myself think it necessary to decide this point in the present case, and I feel some doubt whether it would not be more correct to say that, as the occupancy of the land would be only a limited interest, it would not escheat to the Crown, but revert to the grantor of the occupancy, i. e. the Saranjamdar: cf. Tulshi Ram Sahu v. Our Dayal Singh I.L.R. (1910) All. 111. In any case it seems to me that there would be good ground for the contention that the Crown in such a case recognised the right of the Saranjamdar to dispose of the vacant lands in the same way as any other vacant land that might be in the village, just as in an unalienated village the Collector has power to dispose of the occupancy in such a case under Section 72 of the Bombay Land Revenue Code.
15. Issue No. 2 covers not only the question whether the plaintiff proves that his ancestors so acquired the land, but whether they 'became owners' thereof.
16. The only remaining point is the one, which in the lower Court led to issue No. 2 being answered in the affirmative and issue No. 6 in the negative, and which has been the main one argued before us. I shall first deal with this as if it were res Integra, and give my opinion on the merits of the dispute untrammelled by any authority of this Court. The question is as to the excess profits over and above the assessment, which are obtained from these particular lands. This is the market rent which the Commissioner in his order Exhibit 5 directed the Collector to ascertain and recover from the plaintiff, or from the occupants, who had been put in possession by the plaintiff or his predecessor, the last Saranjamdar. In the case of the first five survey numbers (A) to (E) of the plaint, the average yearly income obtained by the plaintiff before the resumption is stated by the witness Exhibit 176 to have been Rs. 1,200, and in the case of the numbers shown as (H) to (K), which are still in plaintiff's possession, Government are said to have been exacting Rs. 112-6-0 more than they used to do. Some of the documents on record contain statements that part of the first five numbers, viz., 2, 118, 119, 120 and 121, had in fact been actually sold by the last Saranjamdar to third parties for building houses, and other portions were leased on rent for the same purpose: see Exhibits 138, 152, 153 and 154. The Saranjamdar in fact obtained increased profits from these lands in the same way as a Collector obtains them where land assessed as agricultural land is subsequently diverted to non-agricultural purposes under Sections 48, 65 and 66 of the Bombay Land Revenue Code. It also appears that a part of the remaining five numbers, which were not included in the village site, is used for non-agricultural purposes: see Exhibits 138 and 143. The disposal of these particular lands in this way, viz., upon the original occupancies being relinquished or extinguished, putting them in his own name and subsequently selling or leasing them for building or other non-agricultural purposes, is a disposal, which, in my opinion, is solely due to the Saranjamdar availing himself of his powers as Saranjamdar, which include not only a power to take the assessment, but also a power of manage ment in regard to the village lands, enabling him to put un occupied lands to the best possible use The question is whether the advantage so obtained is one that is part of the Saranjam estate, which can be resumed by Government, or whether the Saranjamdar by his action in entering the lands in his own Khata acquires a private right to the occupancies which cannot be resumed by Government, and which descends to his own heirs, although they may not succeed to the Saranjam grant. In my opinion, the answer to this question is that, the occupancies having been obtained by him qua Saranjamdar, and not in the exercise of any private mode of acquisition such as a purchase from the original occupant, the occupancies must be treated as part of the Saranjam estate and liable to resumption by Government. The case in fact seems to me to be practically on the same footing as if the Saranjamdar had alienated a part of the Saranjam estate by giving a permanent lease of these particular lands to a third party. It is, I think, indisputable that a sale of part of the Saranjam estate by a Saranjamdar is invalid as against his successor or Government as the reversioner, See Gulabdas Jugjivandas v. The Collector of Surat I.L.R. (1878) 3 Bom. 186, and it seems to me quite clear that where the Saranjamdar instead of selling the lands gives a permanent lease of them, by which his heirs get an increased revenue, the case is on the same footing as a sale: compare Madhavrao Waman v. Raghunath Venkatesh I.L.R. (1923) 47 Bom. 798, 25 Bom. L.R. 1005. I may also refer to Nainapillai Marakayar v. Ramanathan Chettiar I.L.R. (1923) Mad. 337, where (in dealing with the case of a temple) their lordships say (p. 352) that 'except in a case of such unavoidable necessity' (i. e., a necessity justifying an alienation) 'the shebait, the managers or the trustees of a temple, or the mahant of a mutt have no power to sell or mortgage the endowed property in their custody, and obviously they have no right to impair the endowed property by creating or granting in favour of any one rights of permanent occupancy in the endowed lands.' This principle seems to me to apply equally in the present case. I agree on this point entirely with the view taken by the learned District Judge, E.H. Leggatt, in the Hebli Saranjam case and cannot express it better than he has at page 32 of the paper book in the Privy Council Appeal No. 169 of 1913, viz., that 'in the case of a Saranjam grant of land revenue the lands in the occupation of the grantee qua Saranjamdar are resumable with the Saranjam, though of course he may have possession of the land by purchase of occupancy rights from occupants at the time of the grant, in which case he would be in possession qua occupant and not qua Saranjamdar, or possibly in some other way he may have acquired a right to continue in possession.' I agree also with his view that in the case of a Saranjam grant of land revenue, the grant, of land revenue is coupled with the right to make the best possible use of unoccupied land, and presumably the whole of this can be resumed (page 31 of the paper-book). The first part of this proposition is also adopted by the District Judge in this case, when he says in dealing with the sixth issue 'it is not disputed that what the grant amounts to is that of the royal share of the revenue. But the grant also connotes certain powers of management.' He then goes on to illustrate what is meant by these powers of management. It is quite clear that, apart from his position as Saranjamdar, he would not be able to exercise these powers of disposal of lands on forfeiture, extinction of line or relinquishment, and as I have already mentioned, these are powers which are ordinarily reserved to a Collector under ss 57, 72 and 37 read with s 74 of the Bombay Land Revenue Code. Section 111 impliedly recognises the exercise of such powers of management by an Inamdar of an Inam village, and the Courts have long ago recognised this power: see Ramchandra v. Venkatrao I.L.R. (1882) 6 Bom. 598. Then it is important to bear in mind that a Saranjam is a life estate and does not necessarily descend to the eldest lineal male heir: see Saranjam rules 2 and 5. As laid down by the Privy Council in Sheikh Sultan Sani v. Sheikh Ajmodin I.L.R. (1892) 17 Bom. 431, the question to whom a Saranjam or Jaghir shall be granted upon the death of its holder is one which belongs exclusively to Government to be determined upon political considerations.
18. It follows that the Saranjamdar is a 'qualified owner' and I adopt the contention of Sir George Lowndes in Secretary of State for India v. Laxmibai I.L.R. (1922) 47 Bom. 327; 25 Bom. L.R. 527. that Section 90 of the Indian Trusts Act, 1882, applies. A Saranjamdar, by availing himself of his powers of management as Saranjamdar, cannot, in my opinion, gain for himself and his heirs an advantage in derogation of the rights of Government and his successors to whom Government may see fit to regrant the Sacanjam, and who are 'other persons interested in such property' within the meaning of Section 90. Even if the indeterminate successors cannot be considered, Government clearly have as reversionary interest which represents also the interests of future successors to the Saranjain estate and which cannot be ignored: compare Madhavrao Waman v. Raghunath Venkateah I.L.R. (1923) 47 Bom. 798, : 25 Bom. L.R. 1005, as to the corresponding interest and rights of the Crown in service watan lands.
19. This principle merely follows the English law that a person holding a fiduciary position in relation to property cannot deal with the property for his own benefit, as to which reference may be made to Halsbury's Laws of England, Vol. XXVIII, page 48, Article 93, and to Lewin's ' Trusts,' 12th Edition, page 204. That principle covers the case of 'tenants for life' in relation 'towards those in remainder: cf. In re Biss: Biss v. Biss  2 Ch. 40, per Collins M.R. It seems to me that such a constructive trust clearly operates in the present case. The increased benefit gained by Sirdar Raghunathrao and subsequently by the plaintiff Shivdeorao was obtained by Raghunathrao having availed himself of his position as Saranjamdar and thus getting the occupancies for himself without any payment to the previous occupants, and the resulting revenues should be held for the benefit of the Saranjam estate under Section 90 of the Indian Trusts Act.
20. It is urged that, if Saranjamdar A could give a forfeited or relinquished occupancy to B or C, why should he not give it to himself? But this, in my opinion, overlooks the fact that, when A gives it to B or C, the latter is subject to various liabilities (over and above the mere payment of assessment), of which the Saranjamdar can take advantage in exercise of his powers of management. For instance if B or C uses the land for non-agricultural purposes, the Saranjamdar can levy an increased rental on the analogy of Sections 65 and 66 of the Bombay Land Revenue Code. (Such increased assessment was in fact levied by the Saranjamdar Raghunathrao: of. Exhibits 121 and 152). If this happens in the time of the successor of A, who gave the occupancy to B or C, such successor would benefit by it; whereas if A gives the occupancy to himself and the land is therefore treated as private property, A's heir D will get all the future benefit instead of A's successor as Saranjamdar, if the latter is not his heir. What happens in such a case is this that the Saranjamdar, instead of having a Mirasdar or permanent tenant as the occupant, obtains the holding for himself, and caw then deal with the land as his Sheri or private land: see Rajya v. Balkrishna Gangadhar I.L.R. (1905) 29 Bom. 415 : 7 Bom. L.R. 439. He thereby gets a decided advantage; for, instead of only getting the assessment or customary rent, which cannot be enhanced except within strict limits, he is able to get the market font and in favourable conditions a rack-rent. In an ordinary case, where the Inamdar's heir is necessarily his successor as Inamdar, no question of trust arises. But where, as in the case of a Saranjam estate, the successor may not be the Saranjamdar's heir, or (as in this case) Government resumes the Saranjam and there is no successor at all, the principle of Section 90 of the Indian Trusts Act comes into play. The advantage gained must be held for the benefit of the Saranjamdar's successors, or Government as the ultimate re-versioner. The fact that the latter may still have left to them the benefit of the ordinary assessment is immaterial, cf. James v. Dean (1805) 11 Ves. 383, which is summarized as follows in Lewin's 'Trusts', 12th Edition, para 4, at page 203:--'Even where a testator was possessed of leaseholds, and devised all his interest therein to A for life, remainder to B, and the lease having expired in the testator's life-time, he was at his death a mere yearly tenant, it was held that A, having renewed the lease, must hold it upon the limitations of the will, for the yearly tenancy was an interest capable of transmission by devise; and the tenant for life could not, by acting on the good-will that accompanied the possession, get the exclusive benefit of a more durable term.' In that particular case A's successors would still have got the yearly tenancy, but that did not prevent their being entitled to the more durable term, which had been obtained by A. To say that the Saranjamdar 'occupies no fiduciary position' towards Government or any other person seems to me, with due respect, to beg the question. For the grant, in my view and that of Mr. Leggatt in the Hebli case, is a grant of land revenue coupled with a power of management, enabling him to make the best possible use of unoccupied land. There is, in my opinion, an implied or resulting trust that such powers shall not be exercised in a way that will benefit the Saranjamdar's heirs at the expense of future reversioners other than the Saranjamdar's own heirs; and to that extent I say he 'occupies a fiduciary position' towards his successors and Government Also I think a successor is entitled to receive not only the assessment, which is the main part of the Saranjam estate, but also the benefit of the increased profits obtainable from the power of management, which is part of the Saranjam grant. I say, therefore, that, in appropriating such profits for himself and his heirs, a Saran-jamdar acts 'in derogation of the rights of the other persons interested in the property,' within the meaning of Section 90 of the Indian Trusts Act. Consequently I do not agree with the view of my learned brother that the power of resumption covers nothing more than the resumption of the right to take the royal share of the revenue. And even assuming that the grant is limited to a grant of the royal share of the revenue, I do not see why this should not cover any increase which, if the village was not alienated, the State could legitimately claim owing to agricultural lands being diverted to non-agricultural purposes as in the case of the lands that have been included in the village site of Manmad. Section 134 of the Bombay Land Revenue Code illustrates this right.
22. I would add that, with due deference, I demur to the view taken in Sakharam Govind v. Trimbakrao Ramchandrarao I.L.R. (1920) 45 Bom. 694, : 23 Bom. L.R. 314 that the Saranjamdar takes 'an absolute interest in the subject matter of the grant.' This view is based on Dosibai v. Ishvardas Jagjivandas I.L.R. (1891) 15 Bom. 222 which was a case of a Jaghir held on quite different terms to a Saranjam of the kind now in question, which is only a life-estate. It seems to me to be a contradiction in terms to speak of the Saranjamdar as an absolute owner in those circumstances. Nor do I agree with the view taken at page 704 of the same case that a resumption under the rules is only 'formal.' It may be very real, as is shown by this case. In face of Rule 2 of the Saranjam rules, how can it be said that the eldest lineal male representative is 'entitled to succeed' as was said by Scott C.J. in Madhavrao Hariharrao v. Anusuyabai I.L.R. (1916) 40 Bom. 606; 18 Bom. L.R. 768. The rule distinctly says the contrary. Apart, therefore, from authority to the contrary, I would say that in view of this constructive trust issue (2) in the lower Court should be answered in the negative and issue (6) in the affirmative.
23. On the other hand I admit that the view taken above is opposed to contrary rulings by this Court, especially Ganpatrav Trimbak Patwardhan v. Ganesh Baji Bhat I.L.R. (1885) 10 Bom. 112 and Gururao Shrinivas v. Secretary of State for India I.L.R. (1916) 41 Bom. 408 : 9 Bom. L.R. 117, which are both cases relating to Saranjams. The decision of the Privy Council on appeal from the last named case in Secretary of State for India v. Laxmibai I.L.R. (1922) 47 Bom. 327 : 25 Bom. L.R. 527, has not, I think, definitely overruled the view taken by this Court in Gururao's case (at page 433) to the effect that, where the Saranjam grant is a grant of the royal share of the land revenue, the Government cannot resume anything but that royal ahare, and that the right to the occupation of the land subject to the payment of the assessment can and does survive the resumption of the Saranjam.
24. I do not agree with the view of my learned brother that the point referred to in the judgment of the Privy Council in Secretary of State v. Laxmibai as having been 'abandoned' before them apparently refers to the claim made in the plaint in that case that, even if it was a grant of the soil the plaintiff would have a right to hold the lands. The phrase 'raitava rights' in the passage quoted by their lordships from the plaint in that case occurs in direct conjunction with the contention that 'Saranjam grant is a grant of the revenue only'; and when the Privy Council speak of a 'claim of this kind,' they presumably refer to the claim made on that basis. It appears in fact that such a claim was asserted only on that basis both in the District Court and the High Court. Thus in the District Judge's judgment at page 28 of the Privy Council record, line 20, it is said, 'It is practically conceded that the grant in this case was of land revenue and not of the soil', and his findings at page 35, lines 36 to 41, and at page 40, paragraph 26, are on this basis. In the High Court the contention was put forward on the same basis (see the Privy Council record, page 90, lines 34 et seq.) and the discussion of it proceeded only on that basis (of. page 95, lined 40 to 45, and page 97, lines 13 to 17, and lines 39 to 42). When the Privy Council say 'this latter claim has now been abandoned' they surely can only mean the claim made on that basis. This is corroborated by the report of the arguments for the respondent before the Privy Council as reported in I.L.R. 47 Bom. 331. This contains the argument: 'If the grant was merely of the revenue, the plaintiffs have the right to possession, although the Government can reassess.' Sir George Lowndes met this by pointing out that} the District Judge had found that there was no right of occupancy (i. e., presumably the finding on the ninth issue), and he added that in the High Court it was not contended that that finding was wrong. I think this, latter statement is erroneous, for clearly the High Court found that, on the bassis of the Saranjam grant being a grant of the royal share of the revenue, the plaintiffs had a valid right to the occupancy, which could not be disturbed by Government. But this view may not have occurred to the learned counsel for the respondent, and it may have been on this account that the claim under consideration was abandoned by him. In any case an abandonment by counsel of this particular contention cannot, in my opinion, be taken as conclusive in the present case, or as adequate basis for holding that the Privy Council have decided against the view taken in Gururao's case, which I have already mentioned.
25. Therefore, merely on the ground that I am bound by previous decisions of this Court, though I differ from these decisions on the merits so far as they affect the present case, I agree to the findings on issues Nos. 2 and 6 arrived at by my learned brother and in the decree that he proposes to make, based on these findings. Otherwise I should have dismissed the plaintiff's suit with costs throughout.
26. I also concur in allowing Appeal No. 281 of the plaintiff as regards the form of the decree. I think the principle followed in Gangaram v. Bapusaheb : (1922)24BOMLR826 applies to this case, and that the plaintiff should get possession of the suit lands, if she succeeds in the suit, subject to any rights of co-sharers therein. The case is one where the plaintiff as the principal co-sharer can, I think, legitimately sue alone to eject an alleged trespasser: cf. Shutari v. The Magnesite Syndicate, Ltd. I.L.R. (1915) Mad. 501. No doubt the defendant might have objected to the other co-sharers not being joined as parties to the suit, cf. Balkrishna Moreshwar Kunte v. The Municipality of Mahad I.L.R. (1885) 10 Bom. 32; but no such objection was taken (although the Court appears to have suggested their joinder), and it must accordingly, under Order I, Rule 13, of the Civil Procedure Code, be deemed to be waived.