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Basangouda Giriyeppagouda Patil Vs. Basalingappa Mallangouda Patil - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number First Appeal No. 304 of 1929
Judge
Reported inAIR1936Bom301; (1936)38BOMLR593
AppellantBasangouda Giriyeppagouda Patil
RespondentBasalingappa Mallangouda Patil
DispositionAppeal dismissed
Excerpt:
mstoppel - consent decree-effect of decree to sanction alienation of watan rights- detcree effective till set aside-hereditary offices act (bom. hi of 1874), section 5-revenue jurisdiction act (x of 1876), section 4.;the plea of estoppel by res judicata may prevail even when the result of giving effect to it will be to sanction what is illegal in the sense of being prohibited by statute :;chhaganlal v. bat harkha (1909) i.l.r. 33 bom. 479 : s.c. 11 bom. l.r. 345 and couiasji v. kisandas (1911) i.l.r. 35 bom. 371 : s.c. 13 bom. l.r. 649, followed.;n was the holder of a certain patilki watan. after his death g was given a certificate of heirship and his name was entered by the revenue authorities in the watan register. thereafter defendant no. 2 sued for a declaration that he was the heir.....broomfield, j.1. this litigation is concerned with the rights of the parties in the patilki watan of the village masuti in the bagewadi taluka of the bijapur district. the plaintiff, whose suit has been dismissed by the trial court and who now appeals, is the adopted son of one giriyeppagauda, and as such claims to be entitled to the right of service as patil, and also to the lands in the possession of the defendants which form part of the watan. the last undisputed holder of the rights and lands in question was ningangauda, the adopted son of irappa ningappa. he died in 1891, leaving no one in that particular branch of the family except a sister ningava. the parties to the present litigation belong to collateral branches of the family. their exact relationship to propositus is a matter.....
Judgment:

Broomfield, J.

1. This litigation is concerned with the rights of the parties in the patilki watan of the village Masuti in the Bagewadi taluka of the Bijapur district. The plaintiff, whose suit has been dismissed by the trial Court and who now appeals, is the adopted son of one Giriyeppagauda, and as such claims to be entitled to the right of service as patil, and also to the lands in the possession of the defendants which form part of the watan. The last undisputed holder of the rights and lands in question was Ningangauda, the adopted son of Irappa Ningappa. He died in 1891, leaving no one in that particular branch of the family except a sister Ningava. The parties to the present litigation belong to collateral branches of the family. Their exact relationship to propositus is a matter of much dispute, but it is common ground that, apart from certain difficulties arising from the fact that Parutagauda, the ancestor of defendants Nos. 1 and 2, was given in adoption, to another family, their branch, i.e., the branch of defendants Nos. 1 and 2,, is more closely connected with Ningangauda's branch than that to which Giriyeppa, the plaintiff's adopted father, belonged. There is no dispute also as to the immediate pedigree of defendants Nos. 1 and 2 which is as follows :-

Parutagauda.|-----------------------------------------------------| |Nagava = Baslingappa San Irappa| |Rudragauda (defendant Mallangauda (defendantNo. 2) (adopted). No. 1).|Rudragauda (given in adoption).

2. Basalingappa died in 1877 without issue, but his widow Nagava adopted Rudragauda defendant No. 2, son of Mallangauda defendant No. 1, in 1900. It. may be mentioned, though it does not affect the case materially, that the propositus Ningangauda was also the natural son of defendant No. 1 given by him in adoption to Irappa Ningappa and his wife Rudrava in 1887.

3. After Ningangauda's death there was a dispute as to the heirship between Giriyeppa and San Irappa, the father of defendant No. 1. In Miscellaneous No. 50 of 1891 it was held that Giriyeppa was the heir of Ningangauda and he was given a certificate of heirship. His name was also entered by the revenue authorities in the watan register. San Irappa then filed a suit, No. 225 of 1893, for a declaration that he was the heir, and for cancellation of the heirship certificate granted to Giriyeppagauda, This suit was dismissed and appeals to the District Court and to the High Court were unsuccessful. The date of the final decree of the High Court was in February, 1900. The grounds of the decision against San Irappa in these proceedings were that it was found that Parutagauda had been given in adoption to a different watan family altogether, that of Shirol in the Dharwar District. San Irappa tried by various expedients to get out of this. The adoption was denied, alleged to be invalid and finally alleged to have been in the dwyamushyana form, i.e. with rights in both families. An attempt was also made to show that the Shirol family was connected with the Masuti family, so that even if San Irappa belonged to the former, he might still claim as an heir to the Masuti watan. But all these pleas were negatived. There was no hint so far of the point subsequently raised that San Irappa's brother Basalingappa had been born before Parutagauda's adoption, and therefore had remained in the Masuti family. Then came the adoption of Rudragauda by Baslingappa's widow Nagava on March 31, 1900, and soon after Rudragauda through his maternal uncle Subbangauda as next friend filed suit No. 943 of 1900 for a declaration that he was Ningangauda's heir. It was not necessary for him to pray for possession of the lands, because it appears that Giriyeppa in spite of his success in the previous litigation had never got possession of any of the lands in dispute. It was alleged in the plaint of that suit that the minor Rudragauda was in possession and that his uncle and next friend was managing on his behalf. In actual fact Mallangauda defendant No. 1 appears to have been in possession. He is, as I have said, the natural father both of Ningangauda and Rudragauda. A different pedigree of the family was produced by Rudragauda on this occasion, now exhibit 136, which showed a different common ancestor, and also purported to show that one Irappa Ghullappa was a nearer heir than Giriyeppa in Giriyeppa's own branch. This Irappa, who is defendant No. 3 in the present suit, had given his consent to the adoption of Rudragauda and had also made an assignment of his own rights in his favour. This suit was settled by a consent decree under which two fields were assigned to Irappa Ghullappa, and the rest of the land was divided roughly half and half between Giriyeppa and Rudragauda. These two were also held entitled to the right of service in equal shares. In the joint application for recording the compromise, Giriyeppa admitted the correctness of the pedigree and the validity of the adoption of defendant No. 2. As the result of the compromise Giriyeppa and defendant No. 3 got possession of the lands assigned to them.

4. The settlement, however, was not recognised by Government. Giriyeppa died apparently soon after the compromise decree, which was dated January 3, 1902, and the name of his widow Laxmava was ordered to be entered as representative watandar.* In 1906 an 'application was made on behalf of defendant No. 2 that he should be shown as entitled to a half share in the right of service, but this was rejected. After he attained his majority Rudragauda brought Suit No. 122 of 1912 for a declaration that the compromise decree was null and void, for entry of his name in the watan register and for possession of the land held by Laxmava. This suit was dismissed. Rudragauda, however, persevered; in 1921 he made another application to the Deputy Collector for having his name entered as representative watandar, and in this attempt he was successful. The order made in his favour by the Deputy Collector was confirmed by the Collector. It was reversed by the Commissioner, but was restored by Government. The Government Resolution dealing with the case is exhibit 144. No reasons are stated in the Resolution itself, but from the attached correspondence it appears that Government accepted the position that Baslingappa was born before the adoption of his father Parutagauda and remained a member of the Masuti watan family, that on his death his widow Nagava succeeded him and that she was not postponed to Giriyeppa who was held to be a stranger to the family. In the meanwhile the present plaintiff had been adopted by Laxmava on October 21, 1920, and he brought this suit on April 14, 1928.

5. In the plaint he prayed for the following reliefs : (a) a declaration that defendant No. 2 was not the patilki watandar of Masuti, (b) a declaration that plaintiff is entitled to have his name entered in the watan register for the sixteen annas right of patilki service, and (c) possession of the lands in the possession of the defendants. That is to say, he seeks possession in this suit of the land which was assigned to those defendants by the compromise decree of 1902. The allegations in the plaint, so far as they are material, were that the adoption of defendant No. 2 is invalid, that Baslingappa and San Irappa were born after the giving in adoption of their father Parutagauda, and that, even if the adoption of defendant No. 2 is valid, he is not a watandar of the Masuti watan and therefore he would acquire no right to the lands in suit under the compromise decree.

6. The allegations in the written statements, so far as they are material, were that Baslingappa was not born after the adoption of Parutagauda but before, that on his death in 1877 his widow Nagava succeeded him as heir and that she also succeeded Ningangauda in 1891, that Irappa Ghullappa, defendant No. 3, is a nearer heir than Giriyeppa, that the adoption of defendant No. 2 made with the consent of Irappa was valid, that the suit is barred by the provisions of the Revenue Jurisdiction Act, and also by limitation.

7. The issues framed by the trial Judge were as follows : (1) Whether Baslingappa was born after the adoption of his father into another family. The finding is that he was born before the adoption. (2) If not, are Baslingappa and his son watandars of the Masuti patilki watan The finding is in the negative. (3) Is the suit barred by Section 4 of the Revenue Jurisdiction Act? The finding is that plaintiff's claim for the declaration is barred, but not his claim for possession. (4) Can plaintiff contend that the compromise in Suit No. 943 of 1900 is not binding on him? The finding is No. (5) Is. plaintiff's adoption proved Finding in the affirmative. (6) Is it invalid as alleged by defendants? Finding in the negative. (7) Was Giriyeppa the nearest heir to Ningangauda Finding in the negative. (8) If not, can plaintiff be the heir to the suit property? Finding in the negative. (9) Is defendant No. 2 the validly adopted son of Baslingappa Finding in the affirmative. (10) Is he entitled to claim any part of the watan property of Masuti? Finding in the affirmative. (11) Is the suit in time? On this no finding is recorded, as in the learned Judge's view the issue did not survive. The findings on the 1st, 3rd, 4th, 7th, 8th, 9th and 10th issues are against the plaintiff; the finding on issue No. 3 is in part against him. The finding on issue No. 2 appears to be in his favour, but it is not altogether easy to reconcile it with the finding on issue No. 10. /

8. It will be convenient to deal first of all with the issue as to the effect of the compromise decree in the suit of 1900. The trial Judge has held that plaintiff is bound by this decree, and in my opinion he is right. It is a judgment inter parties, for plaintiff claims through Giriyeppa, and unless he can get rid of it, it is difficult to see how he can get any relief in this suit. The lands which he seeks to recover were awarded to the defendants by the decree, which moreover was based on the admission of Giriyeppa as to the correctness of the pedigree relied on by the defendants and the validity of the adoption of defendant No. 2. That means that the decree recognised a position entirely inconsistent with that now set up by plaintiff as Giriyeppa's adopted son. The argument on plaintiff's behalf here, as in the lower Court, is that the compromise amounted to an alienation to persons who were not watandars, and was therefore contrary to Section 5 of the Watan Act and unlawful. Let us assume for the moment that that was so. That would be a good ground for setting the decree aside, but it would not render the decree a nullity or get rid of the necessity of getting it set aside in due course of law and within the period of limitation. It was held in Chhaganlal v. Bai Harkha I.L.R. (1909) 33 Bom. 479 : 11 Bom. L.R. 345 that the plea of estoppel by res judicata may prevail even when the result of giving effect to it will be to sanction what is illegal in the sense of being prohibited by statute. The Court relied on the judgment of the Privy Council in Great North-West Central Railway V. Charlebois [1899] A. C. 114. The relevant passage in the judgment of Lord Hobhouse is at p. 124 of the report. I may premise that the appeal arose out of an action to impeach a judgment on a contract alleged to be ultra vires of the company. His Lordship said :

It is quite clear that a company cannot do what is beyond its legal powers by simply going into court and consenting to a decree which orders that the thing shall be done. If the legality of the act is one of the points substantially in dispute, that may be a fair subject of compromise in court like any other disputed matter. But in this case both the parties,... were equally insisting on the contract. The president, who appears to have been exercising the powers of the company, had an interest to maintain it, and took a large benefit under the judgment. And as the contract on the face of it is quite regular, and its infirmity depends on extraneous facts which nobody disclosed, there was no reason whatever why the Court should not decree that which the parties asked it to decree. Such a judgment cannot be of more validity than the invalid contract on which it was founded.

9. The particular passage which was referred to in Chhaganlal v. Bai Harkha was the sentence (p. 482) : ' If the legality of the act is a point substantially in dispute it may be a fair subject of compromise in Court like any other disputed matter.' The concluding sentence of the passage which I have cited, ' Such a judgment cannot be of more validity than the invalid contract on which it was founded ', might at first sight perhaps appear to suggest that such a decree would be a nullity which it is not necessary to set aside. But that is not in fact what was held in the case, and, as I have said, the appeal arose in a suit to impeach the judgment.

10. Another case on the same point, viz. that a decree based on an agreement which is bad in law is binding until set aside, is Cowasji v. Kisandas : (1911)13BOMLR649 Mr. Justice Batchelor observed as follows :-

But the question is whether in this suit the plaintiffs are entitled to give the go-by to a particular clause in an existing decree on the ground that that clause, if resting on no higher authority than the agreement between the parties, would be bad in law. We think that this question must be answered in the negative. It may be-though we express no opinion as to this-that in a suit properly framed for that purpose, the plaintiffs might have been able to get the decree set aside. But no such suit has been brought, and the decree is a subsisting decree; nor does it, we think, make any difference that it was taken by consent of the parties who were all sui juris. The decree stands, and, while it stands, it operates as an estoppel between the then parties and their present representatives.

11. The learned Judge referred to Huddersfield Banking Company, Limited v. Henry Lister & Son, Limited [1895] 2 Ch. 273.

12. On the other hand we were referred to some observations of Mr. Justice Fawcett in Ganesh v. Bhausaheb : (1921)23BOMLR1037 . That case was decided by a single Judge, and, moreover, the authority there referred to, a judgment of the Privy Council in Padapa v. Swamirao I.L.R. (1900) 24 Bom. 556 : 2 Bom. L.R. 548, did not deal with the case of a decree whether on a compromise or otherwise. All that was held was that a mortgage which contravenes the provisions of the Watan Act is void. I do not think therefore that there is anything in this case which weakens the effect of the two decisions which I have cited.

13. But if the compromise decree is to be treated as good unless or until it be set aside, it is clearly too late now to get it set aside. The cause of action in that respect would accrue to the plaintiff on his adoption in 1920, and the longest period available to him, viz. the period for a suit for a declaration that the decree did not bind him, would be six years from 1920, under Article 120 of the Indian Limitation Act. I may also point out that it seems to of at least doubtful whether this particular compromise could be said to amount to an alienation within the meaning of Section 5. In that connection I may refer to Basangowda V. Irgowdatti I.L.R. (1922) 47 Bom. 597 : 25 Bom. L.R. 293, and the cases there cited. It was pointed out there that the Courts lean in favour of such family arrangements.

14. So that even if the defendants must be held to be non-watandars, the compromise decree, in my opinion, would be a sufficient answer to the plaintiff's suit. But even on that point I am not prepared to hold in plaintiff's favour On the whole I think we must accept the trial Judge's finding that Baslingappa was born before his father went in adoption to the Shirol family, though 1 admit that the evidence is by no means conclusive on the point.

15. [The evidence bearing on the point was discussed.]

16. The burden of proof is therefore on the plaintiff, and the trial Judge's finding on the first issue must, I think, be accepted.

17. I may say that even if Baslingappa was born after the adoption, it would not necessarily follow that he was not a ' watandar' of the Masuti watan. Ai page 6 of the print the learned trial Judge has referred to evidence which appears to show that before the year 1846 Baslingappa owned some watar land in the village. The definition of watandar in the Act includes a person holding watan property acquired by him before the introduction of the British 'Government into the locality of the watan. It is an admitted fact that the village of Masuti came under British rule for the first time in 1848.

18. I will next deal with the argument of learned counsel for the plaintiff that even if Baslingappa remained a member of the Masuti watan family, defendant No. 2 as his adopted son would not become a watandar. Ningangauda, as I have said, had a sister Ningava who survived him and was a patty to the heirship proceedings commenced in 1891. Failing a male heir, Ningava would succeed and not Nagava, who was merely the widow of a gotraja sapinda. Actually Giriyeppa proved his claim to the satisfaction of the-Court and the revenue authorities and the succession passed to his line. But even if he had failed to prove his claim, Nagava would not have been the heir. Her adoption of defendant No. 2 as son to Baslingappa, though valid as an adoption, (the original contention that the adoption was invalid has been given up) would not, according-to this argument, give the adopted son any interest in the Masuti watan, for Nagava was not the widow of the last male holder. There is certainly authority for this view in Krishnaji v. Tarawa I.L.R. (1900) 24 Bom. 484 : 2 Bom. L.R. 276 and Bhimabai v. Tayappa Murarrao I.L.R. (1913) 37 Bom. 598 : 15 Bom. L.R. 783. But the latter case has been doubted if not overruled in Amarendra Mansingh V. Sanatan Singh (1933) L.R. 60 I. A. 242 : 35 Bom. L.R. 859. In view of the principles enunciated by the Judicial Committee in the latter case and in Pratapsing Shivsing v. Agarsingji Raisingji (1918) L.R. 46 I. A. 97 : 21 Bom. L.R. 496, it cannot be denied, I think, that defendant No. 2 on his adoption in 1900 acquired the status which a natural son of Baslingappa if born in that year would have had, and t)hat, I think, would suffice to make him a watandar within the definition in the Watan Act. It is not necessary for the purposes of this case to consider whether the adoption would have the effect of divesting Giriyeppa's estate. As Baslingappa's son he had a hereditary interest in the watan. He was a watandar. He was indeed a nearer heir of Ningangauda than Giriyeppa himself. Therefore the alienation of watan property to him would not be within the mischief of Section 5.

19. These findings as to the effect of the compromise decree are really enough; to dispose of the case, but it is desirable to refer to some of the other issues. It is contended that the suit is barred by Section 4 of the Revenue Jurisdiction Act, X of 1876, which removes from the jurisdiction of the civil Courts, among other things, claims against Government relating to any property appertaining to the office of any hereditary officer, claims to perform the duties of any such, officer and suits to set aside or avoid any order under Act III of 1874. Declaration (b) in the form in which it is prayed for in the plaint must be said, I think, to be in effect a claim to perform the duties of patil, for no one but a registered watandar or his deputy can perform the duties under the terms of the Act. Prima facie, therefore, such a declaration cannot be granted. But plaintiff's learned counsel has conceded that, Government not being a party, no order which he can obtain in this suit will necessarily be binding, on Government, and he says that he would be quite content with a declaration that defendant No. 2 is not a watandar of this watan, and with a declaration in plaintiff's favour in the form allowed in Hanmant Ramchandra v. The Secretary of State for India I.L.R. (1929) 54 Bom. 125 : 32 Bom. L.R. 155. It was held in that case, after a full discussion of the authorities including the Privy Council case of Laxmanrao Madhavrao v. Shrinivas Lingo (1927) L.R. 54 I. A. 380 : 29 Bom. L.R. 1484, that there is nothing in the Revenue Jurisdiction Act to prevent civil Courts granting a declaration that a person is the nearest heir of a deceased representative watandar, and the declaration was actually granted in the form that plaintiff was entitled to have his name registered as the nearest heir in preference to the defendant whose name had been registered by the revenue authorities. Mr. Justice Patkar distinguished the Privy Council case on the ground that it dealt only with a claim to a watan office and not with a claim for a declaration of status as watandar. In Laxmanrao v. Shrinivas the discussion of the Revenue Jurisdiction Act was very brief and there was no reference to authorities. Their Lordships merely said after setting out the provisions of Section 4 of the Act (p. 394) :-

In their Lordships' opinion these words are wide enough to preclude the Courts from entertaining any claim to the watan offices in opposition to the claim of the hereditary officers recognised or appointed under the Act, and also any claim for the cancellation of the watan register. To this extent, therefore, the plaintiff's case must fail.

The difficulty is that the declaration asked for in that case, which their Lordships held to be barred, was a declaration that plaintiff was and defendants were not watandars, patils and kulkarnis of the village, and this is not very easily distinguishable from the declaration which plaintiff seeks. However, it is clear that Laxmanrao v. Shrinivas cannot have been intended to throw any doubt on the jurisdiction of the civil Courts to decide disputes between persons claiming to be watandars inter se, as to their status in the watan family. Section 36 of the Bombay Hereditary Offices Act, both before and after its amendment in 1910, contemplates a decree of a civil Court as a matter which has to be taken into consideration by the Collector in determining whose name has to be entered as representative watandar.

20. An application has been made on plaintiff's behalf to amend the plaint so that declaration (b) would read as follows : 'As the deceased Giriyeppagauda was the nearest heir to deceased Ningangauda Dod Irangauda, it should be declared that plaintiff who is the adopted son of the said Giriyeppagauda is the nearest heir to the said deceased Ningangauda Dod Irangauda in preference to Rudragauda defendant No. 2.' In my opinion there is nothing in the Revenue Jurisdiction Act which would bar the Court from granting a declaration in this form. But this question is really academic, because on the merits it cannot be held that the plaintiff is the nearest heir of Ningangauda in preference to defendant No. 2. I should be prepared to hold on the evidence that Giriyeppa was the nearest heir of Ningangauda when the succession opened in 1891. I feel considerable doubt as to the correctness of the learned trial Judge's view that the defendants' pedigree, exhibit 136, is reliable and to be preferred to plaintiff's, which is exhibit 109. Exhibit 136 is not an original document. It is a certified copy of a pedigree purporting to have been produced in an heirship inquiry in 1852. However, appears that the original was produced in the suit of 1900 by a witness who deposed that he had written it. He was then seventy-five years old and s presumably now dead. His deposition has been put on the record exhibit L05, and it is admissible under Section 33 of the Indian Evidence Act. Exhibit 138 which is relied on in support of exhibit 136 is also a copy, and in this case there is no proof whatever of the original. No presumption can be drawn under Section 90 as to the genuineness or due execution of the original : Basant Singh v. Brijraj Saran Singh : (1935)37BOMLR805 . No doubt the defendants' pedigree is supported by Giriyeppa's admission in 1902, whatever that may be worth. Plaintiff's pedigree, exhibit 109, is based on an original document which was produced and proved and accepted by the Court in the litigation which began in 1891. It has been in Court custody ever since, and plaintiff applied that it should be called for and placed on the record. This was refused as the application was made at a late stage, but, as we were of opinion that the application ought to have been allowed, we have had the document placed on record in this appeal. It is dated 1858 and purports to bear the signatures of Irappa Ningappa and San Irappa, which, in view of the age of the document, may be presumed to be genuine. The main differences between the pedigrees appear to be these. Exhibit 136 introduces the Shirol family, one Bharamgauda and his descendants, as a branch of the Masuti family. But in this respect it is not supported even by exhibit 138 and, though a blood relationship between these two families would seem to be the most natural explanation of the extraordinary history of Parutagauda's descendants, who were treated as having rights in both watans, it can hardly be said to be proved. The other main point of difference is in respect of Giriyeppa's branch or the branch of the Biradars as it is called. In exhibit 136 Giriyeppa is shown as many degrees further removed from the common ancestor than is the case in the plaintiff's pedigree, and Ghullapa Basappa, who is alleged to be the father of defendant No. 3, is shown as a nearer heir in that branch than Girriyeppa himself. As to this last point it may be pointed out that, apart from any other consideration, there is no evidence that defendant No. 3 really is the son of Ghullapa. He even declined to go into the witness-box himself to support his claim.

21. The trial Judge, who, as I say, was prepared to accept exhibit 136, took the view that the common ancestor of the various branches of the family was so remote that the Biradars' line must have branched off before the acquisition of the watan, and that plaintiff has failed to prove that the watan was acquired by the person shown as the common ancestor in his genealogy or by one of his male ancestors. He is presumably referring to the rule laid down in Bai Laxmi v. Maganlal (1917) 19 Bom. L.R. 730. Actually what was decided there was, that in order that a female heir should be postponed to a male under Section 2 of Act V of 1886, the latter must have descended from a common progenitor who was a watandar. Now in this case there is no evidence to show when or by whom this watan was acquired. The earliest material document on record is exhibit 132, which records the fact that even as long ago as 1770 litigation had been going on from generation to generation between Paravaraddi Veergouda Patil and Lingappa Biradar Patil of Masuti on the one hand and members of the Pancham family on the other. These two persons cannot be identified with any certainty with persons shown in either pedigree. But I think there can be no doubt that so far as the remoter generations are concerned, the pedigrees produced are largely speculative and unreliable. This applies as much to the plaintiff's pedigree as to the defendants'. It has actually been shown that there are several inaccuracies in both, though more in exhibit 136 than in exhibit 109. The salient facts, in my opinion, are that, at the earliest time of which we have any reliable record, a person who was certainly the ancestor of the propositus and no doubt of defendant No. 2 also, was associated with a member of the Biradar family, who must be taken to have been an ancestor of the plaintiff, as representing the Masuti watan, and the further fact, which is undisputed, that the Biradars' branch obtained an eight annas share of the lands of the watan at a partition with the other branches which took place so long ago that there is apparently no record of the date. It is referred to, however, in the statements of Irappa Ningappa and San Irappa in the litigation between them in 1873, exhibits 89 . and 90. In view of this it seems to me to be impossible to say that Giriyeppa was not descended from a common progenitor who was a watandar. That being so, he was entitled to succeed to the propositus Ningangauda under the Act of 1886. But that of course is not enough for the plaintiff. He has to show that he himself is now a nearer heir than defendant No. 2, and that he cannot be for the reasons which I have already given. Defendant No. 2 is also a watandar and a nearer heir of Ningangauda than the plaintiff.

22. The only other matter which I need discuss is limitation. I will deal first with the prayer for possession of the land. Learned counsel for the plaintiff relies on Mow Narayan Joshi v. Balaji Raghunath I.L.R. (1894) 19 Bom. 809. The facts in that case were that the childless widow of a separated Hindu, who was in possession of his property as his heir, alienated it in 1868, and twenty years afterwards she adopted a son, who brought a suit in 1890 to recover the alienated property. It was held that the proper article to apply was Article 144 and that the suit was not barred. The possession of the defendants did not become adverse to the plaintiff until he became entitled to possession of the property upon his adoption. Their possession may have been adverse to the widow, but that did not affect plaintiff who did not derive his right to sue from or through her. That case, however, is clearly distinguishable, because when the defendants got possession in 1902 Giriyeppa was alive. He may not have lived long thereafter, but there was at any rate some interval before the widow Sot possession, in which the lands were held adversely to Giriyeppa. Time, therefore, began to run in Giriyeppa's lifetime, and, as the plaintiff claims through Giriyeppa and not through the widow, the authority cited does not apply. In my opinion the suit for possession of the land would be barred by limitation, if it did not otherwise fail.

23. As regards the prayer for a declaration, I do not consider that there is any bar of limitation. It was suggested that the plaintiff ought to have brought a suit under Article 14 of the Indian Limitation Act to set aside the order of the revenue authorities within a year of the Government Resolution of 1926. But, in my opinion, this is not really a suit to set aside or avoid the orders of the revenue authorities. At any rate it could not be so described if the proposed amendment of the plaint were allowed, and we should have been prepared to allow it if it had been necessary. What the plaintiff is seeking is the determination, as between him and the defendants, of their respective status as watandars, and having obtained this determination he proposes to approach the revenue authorities to reconsider their order. As I have already pointed out, the provisions of the Watan- Act itself appear to contemplate such a suit which cannot reasonably be regarded as a suit to set aside or avoid any order. So far as the declaration is concerned, therefore, the plaintiff would have, a period of six years from the date of the Government Resolution, 1926.

24. But for the various reasons which I have given, I hold that the appeal fails and must be dismissed with costs.

N.J. Wadia, J.

25. The two main questions which are to be decided in this appeal are those covered by the 3rd and 4th issues framed by the trial Court, whether the suit is barred by Section 4 of the Revenue Jurisdiction Act, and whether the plaintiff can contend that the compromise entered into by his adoptive father Giriyeppa with defendant No. 2 in Suit No. 943 of 1900 is not binding on him.

26. It is contended that this is not a suit against Government, but a dispute between rival claimants to a watan, and therefore does not fall within the purview of Section 4 of the Revenue Jurisdiction Act. In support of this contention reliance is placed on the decision of this Court in Hanmant Ramchandra V. The Secretary of State for India I.L.R. (1929) 54 Bom. 125 : 32 Bom. L.R. 155, in which it was held by this Court, following a long series of previous decisions of this Court, that the civil Court has jurisdiction to grant a declaration to a plaintiff that he was the nearer heir to a deceased representative watandar than the defendant, and that such a suit was not barred by Section 4 of the Bombay Revenue Jurisdiction Act, but was expressly saved by proviso 3 to Section 36 of the Bombay Hereditary Offices Act. The decision of the Privy Council in Laxmanrao v. Shrinivas : (1927)29BOMLR1484 , on which the defendants, rely, and the question whether that decision overruled the view taken by the previous Bombay decisions was considered in Hanmant Ramchandra v. The Secretary of State and it was held that it did not overrule them. The ground on which the distinction was made was that the suits which, according to the decision of the Privy Council, were barred, were those in which a claim was made to the watan office or for cancellation of the watan register. The distinction made appears to me to be clear. Clause (b) of the prayer in the plaint in this suit, as it stands, would, therefore, be clearly barred by Section 4 of the Revenue Jurisdiction Act. But the plaintiff has put in an application for amendment by which he asks only for a declaration that as the deceased Giriyeppa was the nearest heir to Ningangauda Dod-Irangauda, the plaintiff who is the adopted son of Giriyeppa is the nearest heir to the deceased Ningangauda in preference to defendant No. 2, Thus amended the relief asked for is clearly admissible according to the decision in Hanmant Ramchandra V. The Secretary of State and the previous rulings there relied on, and according to the express language of Section 36 of the Watan Act.

27. It was contended that the compromise between Giriyeppa and defendant No. 2 in suit No. 943 of 1900 was not binding on the plaintiff, because it offended against the provisions of Section 5 of the Watan Act, Giriyeppa having by that compromise alienated some portion of the watan property to defendant No. 2, who, it was urged, was not a watandar of the Masuti watan. The plaintiff's case was that Baslingappa's father Parutagauda had gone in adoption to one Venkangauda, a watandar of a different watan, that of Shirol in the Dharwar district, and that Baslingappa was born after his father's adoption and therefore ceased after that adoption to be a member of the watan family of Masuti. The question whether Baslingappa was born before Parutagauda's adoption, as contended by the defendants, or after it, as contended by the plaintiff, is not altogether free from doubt. There is no very convincing evidence as regards the year in which Baslingappa was born, and as regards the year in which Parutagauda was adopted into the Shirol family. The evidence as regards the year of Baslingappa's birth consists of a statement with regard to Baslingappa's age in the entry in the death register about Baslingappa's death, and in two statements made in 1874, and 1879 by San Irappa, the younger brother of Baslingappa, about his own age. According to those statements San Irappa was born about 1824 or 1825. There is a statement of the plaintiff's adopted father Giriyeppa in 1898, in which he said that Baslingappa was twenty years older than his younger brother San Irappa. This would give the year of Baslingappa's birth as 1805, which is also the year indicated by the entry in the death register about Baslingappa's death. These statements, however, although admissible in evidence, can only be regarded as giving the approximate year of Baslingappa's birth.

28. The evidence with regard to the year in which Parutagauda was given in adoption is still less definite. It certainly suggests, however, that the adoption took place some time after 1823 and probably between 1823 and 1833. Considering the long period of time which has elapsed since these occurrences took place, one can hardly expect more convincing evidence.

29. On the other hand there is a considerable amount of evidence to show that Baslingappa claimed and enjoyed the Shirol watan and acted as patil of Shirol for over twenty-five years. This could ordinarily have happened only if he had himself become a member of the Shirol family as a result of his father's adoption, and according to the present law that could only be if he had been born after his father's adoption. But there is also evidence to show that after Parutagauda's adoption both his son Baslingappa and San Irappa continued to hold watan property in Masuti. Exhibit 90, a statement made by San Irappa in 1874, shows that he had been holding some of the watan lands from 1854 onwards, and exhibit 134 shows that Baslingappa held some of the watan lands in 1846.

30. This conflicting evidence with regard to Baslingappa's position may be due to the fact that the legal position of a person whose father was adopted into another family, was not clear at that time. But the evidence with regard to the dates of Baslingappa's birth and Parutagauda's adoption is at least sufficient, in my opinion, to show that Basalingappa was born before his father's adoption and, that being so, he would continue to be a member of the Masuti family, and this conclusion is strengthened by the fact that he did continue to hold watan lands in Masuti long after his father's adoption. He would therefore be a watandar of the Masuti watan according to the definition of ' watandar' in Section 4 of the Watan Act, both as having been born before his father went into adoption into the Shirol family, and as having held watan lands in 1846, two years before the village came under British rule. The adoption of defendant No. 2 by Nagava has been admitted in this appeal. The alienation to defendant No. 2 by the compromise in Suit No. 943 of 1900, even if it amounted to an alienation, would not, therefore, be barred under Section 5 of the Watan Act. On this view the plaintiff would be clearly bound by the compromise decree in that suit.

31. Even if it were held that Baslingappa was not a watandar of the Masuti watan, and that the compromise in that suit was illegal as offending against Section 5 of the Watan Act, plaintiff would, in my opinion, still be bound by it. The compromise was embodied in a decree and the decisions in Chhaganlal v. Bai Harkha I.L.R. (1909) 33 Bom. 479 : 11 Bom. L.R. 345 and Cowasji Temulji v. Kisandas Tricumdas I.L.R. (1911) 35 Bom. 371 : 13 Bom. L.R. 649 clearly support the defendants' contention that the consent decree would act as an estoppel until it was set aside by a proper suit, even though the effect of it might be to sanction something that was illegal in the sense of being prohibited by law. Plaintiff has taken no steps to have that decree set aside, and the time within which he could have done so has now passed. He is, therefore, clearly bound by that decree.

32. In the compromise application in the suit of 1900, Giriyeppa had admitted the correctness of the genealogy exhibit 136, on which the defendant has relied in this suit. On the view which I have taken, Baslingappa was a member of the Masuti watan family and defendant No. 2 as a result of his adoption in 1900, also acquired that position. That being so, he was clearly a nearer heir to Ningangauda than Giriyeppagauda. On this ground also the suit must fail.

33. I agree, therefore, that the appeal must be dismissed with costs.


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