Stanley Batchelor, A.C.J.
1. This is an appeal from a judgment and decree of the First Class Subordinate Judge of Belgaum, Mr. Koppikar. The suit was brought for possession of certain lands with mesne profits. The original defendants Nos. 1 to 24 were tenants in occupation of the lands in suit, but the real combatant defendant was defendant No. 25, who is the Sar Desai of Vantmuri. The history of the litigation is set out in the learned Subordinate Judge's judgment, but it will be convenient to refer to a few of the more important facts now, in order to bring them into early prominence. It is admitted that the original owner of the lands in suit was the Desai, the predecessor of the present defendant No. 25, to whom I shall in future allude as the defendant. So early as 1774 A. D. his ancestors made a grant of these lands to the plaintiff's ancestors by the Sanad, Exh. 201. A pedigree of the plaintiff's family, so far as we are concerned with it, will be found in the Subordinate Judge's judgment. The plaintiff's ancestors acted as Chitnis and Store-keeper for the Desai, but in 1843 the right of service as Store-keeper was discriminated from the service as Chitnis, and went to another branch of the family. We are not further concerned with any rights connected with the service as Store-keeper. The office of Chitnis remained with the plaintiff's family together with the lands in suit. In the genealogy appearing in the lower Court's judgment, it may be observed that Nilkanth, Gopal and Balkrishna were adopted sons, and their adoptions were in each case duly recognised by the Desai. Balkrishna left no son, and his widow Sundrabai was unable to serve as Chitnis. The Desai, therefore, allocated the lands and the appurtenant cash remuneration to other persons whom he temporarily employed to discharge the duties of the office. In November 1879 Sundrabai mortgaged the lands to the Desai for a sum of Rs. 2,500 and the Desai was put in possession. In 1881 Sundrabai adopted Narayan, who attained majority in 1889, and died either in 1902, or 1903 according to the plaintiff's version. In August 1889 Narayan after reaching his majority redeemed the mortgage, and the instrument, Exh. 56, bears upon it an endorsement of satisfaction. In October 1889 Narayan purported to let out the lands under Kabulayats to six tenants. These Kabulayats which are Exhibits 179 to 184 are for a term of twelve years, and would therefore expire in 1901. The six tenants, however, proved recalcitrant, and Narayan was unable to obtain from them any payment of their rents. He, therefore, filed suits against them, and in those suits obtained decrees for the rents of the years 1890 and 1891. The rents of those years were actually recovered from those tenants by Narayan. In 1894 Narayan brought other suits for the rents of 1892-93 against the six original tenants, and certain other persons who had been put in occupation as tenants by the Desai. In 1896 Narayan obtained from the Court a decree in the suits of 1894, but admittedly he never succeeded in getting that decree executed, and admittedly he never-more recovered any rents in respect of these lands. In other words, after this struggle with the Desai in 1889 he abandoned the matter and acquiesced in the Desai's position.
2. The facts which I have above set out are 1 believe not in dispute between the parties. The learned Judge below raised two principal issues one of them dealing with the true construction of the Sanad Exhibit 201, and the other raising the question whether the Desai had a defence to the plaintiff's suit on the ground of his adverse possession. As to the construction of the Sanad the learned Judge found in favour of the plaintiff, but finding that the Desai had proved adverse possession for a period exceeding twelve years, he on this ground dismissed the suit. The judgment, as is invariably the case with Mr. Koppikar's judgments, is a careful document, and for my own part, I agree with the learned Judge below in all that he says as to the questions of fact in this suit, and those questions of fact are, in my opinion, all important. 1 differ from Mr. Koppikar as to the construction of the Sanad, but none the less I desire to say that my judgment is largely based upon my own view as to the facts of the case and if I am right as to those facts, it seems to me that there can be no doubt either of the justice or of the propriety of the decree under appeal. No doubt at first it seems a plausible thing to say that a Court should be loath to defeat the grant of 1774 by reason of adverse possession on the part of the grantor's successor, but if broad propositions of this kind are to go for anything, the case may be put even more favourably for the defendant. For, whereas as I read this Sanad, the lands were granted in consideration of service, the plaintiff in this suit seeks to dispossess the defendant and claims the lands absolutely, repudiating any obligation to serve, and denying that the defendant Desai has any interest in the property. Upon this point it may be well to notice at once that the Desai's position is in my view neither extravagant nor oppressive, and he says in his deposition, which appears to mo to be a candid and truthful statement, 'If service is rendered, then only the lands in suit are to be held by the plaintin's family from generation to generation. If they refuse to render the service I have the right of resuming the lands. I have also that right if they deny my title as owner.' Now it is an admitted fact that at least for ten years the defendant Desai has been in exclusive occupation and enjoyment of these lands, and throughout that time the plaintiff's family have acquiesced in that position. Now after the lapse of this prolonged period this Hindu lady, acting through her agent, her brother, sues to oust the defendant.
3. With these preliminary observations, I go now to the first question to be answered. What is the true meaning of the Sanad, Exh, 201 That document runs as follows:-
Rajeshri Narayan Jivaji Chitnis and Kotnis belonging to Gotra Kashyapa Sutra Ashvalayan.
Salutations and request of friend Basavaprabhu walad 1 akhamgowda Desai, Nadgowda, Pargane Hukkeri, Sar Desai of several Mahals and Nadgowda Mamle Murtujabad. The Soor year Khamas, Sabain, Maya Alaf 1175 (i. e. 1774 A. D.) Vritti Patra given in writing by me is as follows:-Your father and you have been serving us faithfully since the time of my father. You have been very useful in serving us. You are serving in many ways as Chitnis and as Koti clerk. Thinking that you are a useful person and that you are competent to perform both these services and that it is necessary to grant to you only (that is, exclusively), the Vritti appertaining to these services and to continue it with you from generation to generation, I have granted to you the Vritti appertaining to the services of Chitnis and Kotnis and the Vritti appertaining to service in respect of the management of the Koti. The emoluments granted in your favour in respect of these two services are as particulars mentioned below.
4. Then after setting out the particulars, the document concludes:
I have granted you in Inam as above, Rupees four hundred as emoluments in cash and the said Kamat lands in respect of both services. And I have settled and granted you the Kaulavani of the aforesaid Pargane and Kanu (rights) in respect of Sanads &c.; You, your sons, grandsons and other descendants from generation to generation arc to go on enjoying the above property, and you and your descendants from generation to generation are to perform both the services and live happily. There is no reason for any one to cause obstruction. May this be known.
5. Mr. Setalvad for the plaintiff has urged that upon a true reading of this document there is a sharp distinction between the cash which is to be the remuneration for future services, and the lands which, according to the learned counsel, are granted in exchange for services already rendered. But upon carefully attending to the language of the document, I feel sure that the Vernacular words cannot bear the weight of any such distinction. It is quite true that the word 'vetan' (xxx) remuneration, occurs after the word 'cash', but that after all is the place where one would expect to find it, and if the document be read as a whole, it seems to me, impossible to deny the force of the constant occurrence together of the cash and the lands, and the constant bracketing and coupling of the services already rendered with the services to be rendered in future as constituting jointly the integral consideration for the grant. The thing itself is more than once called a Vritti, and that word is defined in Molesworth's Dictionary as meaning any office, situation or business, senses which are familiar to the Courts in connection with this particular word. If reference be made to Exhibits 202,242 203 and 459, it will, I think, be seen that the sense which I am attributing to the instrument is the sense which the parties to it have always accepted. In Exh. 202, for instance, which is a letter from the Desai to Nilkanth, we have the following passages:-
The deceased Rudropant had no issue. He therefore took you in adoption. As to that, you requested that the adoption should be confirmed by (us) the Sarkar. On a consideration thereof, it appears to us that the fact of your having been adopted by Eudropant is true. Your adoption is therefore confirmed and you are made owner to his Vritti. Therefore, the land, Haks and Kanubabs and the Koulavni &c.; in the several villages appertaining to the said Chitnishi Vritti acquired by and continued from your ancestors...are granted. The whole land including the above and Haks, Kanubabs and emoluments in respect of writing as continued from ancient times, you should enjoy and you should do your own writing work in respect of Chitnishi and by enjoying the lands &c;, as mentioned above you should faithfully perform the service of the Sarkar.
6. In Exh. 242, which is a letter to the Desai from Nilkanth, we find the following language :-
You the Sarkar have now made me the owner of the Vritti of Rudropant and granted a Sanad in my favour to the effect that I should manage the work of writing in respect of Chitnishi and in respect of the Jamabandi of the several villages and goon enjoying the property....I shall accordingly enjoy the said Vritti and perform the two duties of writing and live honestly and loyally in the service of the Sarkar.
7. These documents, if their assistance is needed, seem to me to confirm the meaning which I am attributing to Exh. 202, that is to say, they seem to support the construction that the lands in question and the cash allowance are granted, to use the language of the Privy Council, pro servitia imperials et impendendis, that is, on account partly of services already rendered and partly of services to be rendered in the future. In other words, as I read the Sanad, the continued performance of the services is upon the true construction of the grant the condition on which the lands are to be held, and if that is so, then according to the Privy Council's decision in Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 438, the lands may unquestionably be resumed for wilful default, The decision which I have just cited was considered by Sir Lawrence Jenkins in Lakhamgavda v. Keshav Annaji (1901) I.L.R. 28 Bom. 305, but I cannot concede that the judgment of the Chief Justice affords any support to the plaintiff's case in our present circumstances. All that was laid down there was that, where the grant is a grant in consideration of past and future services, as here, and where, as here, there is no express provision in the grant that the interest in the lands should cease when the services are no longer required, the lands held under the grant are not resumable at will. But then that is not the defendant's case. He claims to be able to resume the lands, not at will, but by reason of the wilful default in the service which was a condition precedent to the enjoyment of the lands.
8. That there was a wilful default cannot, I think, be questioned. The mortgage of 1879 was made by Sundrabai to the Desai when the hitter was an infant, and at that time the managers of the Sansthan were the Desai's mother assisted, if one should say assisted, by a person named Bhau Ramchandra. This Bhau Ramchandra is found upon the evidence to have been related to the family of Sundrabai, and it is enough to say that ultimately he had to be removed for mismanagement of the estate. In 1885 the Desai attained majority, and in 1889 the mortgage money was paid to him. It is important, however, to observe that the endorsement on Exh, 56 recites that the deed is given back. It does not recite that possession of the lands was delivered to Narayan, and the Desai, whom I believe, has sworn that possession of the lands was not delivered. It is true that on the day before the redemption Narayan made the statement Exh. 462 upon which Mr. Setalvad has placed reliance. But it cannot, I think, be effectively argued from this statement that Narayan genuinely professed an honest willingness to continue the service as Chitnis. The statement is very much in the form of a self-serving petition the object being that his name should be entered in the accounts of the Sansthan, and he says that 'Nazrana in respect of adoption and the heirship inquiry has already been given by Sundrabai according to the custom of the Sansthan.' The statement appears to have been made in the Kutcheri of the Sansthan in the presence of some representative of the Desai and it would seem that Narayan's attention was called to the fact that no record was discoverable showing that Nazrana had been paid in respect of the adoption. 'We were asked', therefore, ho says, 'to state whether or not we are now willing to pay Nazrana in respect of the sanctioning of the adoption. As to this, I beg to state that at present my family is in straitened circumstances as debts &c.; have been incurred. I am therefore willing to act up to any order that may graciously be passed and to pay now only whatever amount &c.; that may be found due this day to the Sansthan and to render service &c.;' That no doubt, so far as words go, is a profession of willingness to serve, but as it seems to me, a profession of willingness to serve on terms which were Narayan's and were not the Desai's. Admittedly, however, Narayan never served, and though the Desai's books were put in evidence in the Court below, it is not suggested that any Nazrana, was ever paid by Narayan, nor is it alleged that the adoption of Narayan was ever recognised by the Desai. The Desai himself in his statement made on the 21st January 1894, Exh. 200, explains what happened in these words. 'The opponent (i. e. Narayan) had been told to perform service. He did not perform it. He absconded. The order to perform service had been made orally. The remuneration for service had been settled previously, that is, before the Vahivat came into my hands. After the administration came into my hands, he was told to join service. He absconded.' It is indeed clear upon this record not only that Narayan failed to offer himself for service on the terms that the Desai could approve, but that he lost no time in putting himself in a position of irreconcilable hostility against the Dosai whose tenants he sought to estrange. In his deposition in the present suit the defendant speaks as follows on the present point: 'On the satisfaction of the mortgage, I told the plaintiff's husband that if he was not able to render the service, that he might appoint somebody to do it and learn the work under him and promised to deliver the lands if he did so. He did not appear to render the service and did not depute any one for the purpose.'
9. So much as to the position occupied by Narayan, But what concerns us more intimately is the position of the plaintiff herself, and that is disclosed in no uncertain terms in the early paragraphs of the plaint. In the first paragraph, after setting out the lands in suit, she goes on : 'The said lands have been continuing as Pot Inam from ancient times with the plaintiff's family from the ancestors of the defendant No. 25 the Khatedar and are of the full ownership of the plaintiff'.' And in paragraph 3 she says t that the plaintiff's husband Narayan Balkrishna recently died, and that she herself, the plaintiff, is his only heir.' I conclude, therefore, that in this case there has been not only a wilful default to render the services which were the condition precedent to the enjoyment of the lands, but the present suit is based upon an open disavowal and repudiation of the defendants' interest in the property. It appears to me, therefore, that on the terms of the Sanad the defendant was, and is, entitled to resume the lands.
10. Next it remains to deal with the question of possession. In the first place, it is essential for the plaintiff not only to prove her title, but to show that within twelve years next preceding the suit she had possession of the land: see the Privy Council's decision in Dharni Kanta v. Gahar Ali (1912) 15 Bom. L.R. 445. P.C. Well, if that is the burden lying upon the plaintiff, it appears to me, that a complete answer to the suit is the fact that certainly during the twelve years preceding the suit the possession of this property was with the defendant and not with the plaintiff. This fact is clearly proved, and so far as I have understood the arguments, is not contested by the appellant. I need not, therefore, labour the point, but will say that to me it is plain upon the record that at least ever since 1893, the defendant has sole possession in his own right, that his tenants have been in occupation, and that through them he has received all the rents and profits of the lands and has received them to the knowledge of the plaintiff and her predecessor.
11. Upon the question whether the defendant's possession can be regarded throughout as adverse or not the appellant relies upon the twelve year rent notes obtained by Narayan in 1889, and the argument has been that the possession of the Desai could not be adverse as against Narayan until those leases had expired in 1901. Unfortunately for that argument, the learned Judge below has found that the Kabulayats and rent notes in question are not honest documents, but were obtained by Narayan in collusion with the tenants and in fraud of the Desai. That finding is fully explained in the last paragraph of the Subordinate Judge's judgment, and I need not say more than that I agree with the reasoning there employed. It is notorious that Indian peasants are ready enough to pass such rent notes to any one, the peasant's sole desire being to be allowed to stay on the land which he occupies. As to Mr. Setalvad's contention that this young man would not have been able to collude with the tenants to the detriment of the powerful Desai, the answer appears to me to be extremely simple, for, I think, that any misrepresentation made by Narayan would have produced the desired effect, as for instance, if Narayan had told the tenants that his adoption had been sanctioned by the Desai. We are, however, without any evidence as to what precisely happened, so that all this is a matter of speculation. I wish only to say that the theory that Narayan colluded with the tenants is not in my opinion exposed to the slightest difficulty on the ground of actual practice. I should add that I myself feel quite sure that in October 1889 and in the events that had by then happened, Narayan certainly did not suppose that he was honestly entitled to take these rent notes from the tenants, or to obtrude himself into the position of the landlord. I think his object was,' as is not infrequent in such cases, merely to create documentary evidence to assist him in the future.
12. But then it was said that the Desai's own accounts from 1891 to 1911 indicate that in his opinion these lands were still held by the plaintiffs as remuneration for the Chitnis service. We have been carefully taken through all these entries by the learned Counsel, and though at first sight they seem to raise a difficulty in the defendant's way, that difficulty is, I think, dispelled by a little consideration. In the first place, ever since 1889 it is indisputable that the Desai has been in open hostility to the plaintiff, openly claiming that the lands had been resumed because there had been default in the service. It is unlikely, therefore, that he would make himself, or ever authorize any agent to make, account entries which are flagrantly in contradiction with his own sustained action. The explanation, however, is not far to seek. In the first place, it is noteworthy that this point is not referred to in the long and elaborate judgment of Mr. Koppikar, so that I must infer that at the trial the plaintiff' felt that no importance could attach to it. It was reserved for the Court of appeal. That is the more unfortunate because both the Desai himself and his Karbhari were examined at the trial, and if any point were to be made by the plaintiff of the Desai's account books, it was, in my opinion, manifestly essential that that point should be put either to the Desai or to his Karbhari or both in order to afford them an opportunity of giving a reply. As I say, no such opportunity was afforded, and the point was reserved for the Court of appeal after all the evidence had been finally closed. Even here, however, it so happens that the matter is not difficult. I fully accept Mr. Coyaji's explanation, which is that as a matter of accounts these lands were in the Desai's office ear-marked or allocated to the Chitnisi office, and have never yet been formally dissociated from that, office, The entries, therefore, would be continued to be made by the clerks in the ordinary routine, and Mr. Coyaji has stated without contradiction that even after the Desai's written statement was filed in this suit, the entries continued to be made as before. It seems to me, ' therefore, that no use can be made of these entries in contradiction of the clear attitude which the Desai has preserved since 1889. If, then, the learned Judge below is right, as I think he is right, in finding that the rent notes were collusive, there also is an end of the plaintiff's case, for it cannot be that the plaintiff's position is improved by reason of the collusion of her predecessor-in-title.
13. Lastly, I will shortly state my opinion upon the assumption that Mr. Koppikar and I are wrong in regarding the Kabula-yats as collusive. Even so, I do not think that the result would be different. There is no need to cast any doubt upon the general proposition that ordinarily during the currency of a lease no adverse possession can be obtained by a third party against the landlord seeing that the landlord is not usually entitled to resume possession until the expiry of the lease. But as Mr. Justice Batty's elaborate judgment in Tarubai v. Venkatrao I.L.R(1902). 27 Bom. 43; 4 Bom. L.R. 721 shows, this broad proposition is subject to qualification and reserve. At page 57 of the Report the learned Judge observes : 'In the case of landlord and tenant, the mere ouster of the tenant was shown to be insufficient so to affect the landlord as to put him to the necessity of vindicating his position. But when the landlord was entitled to rent and the rent was not merely left unpaid (a fact which would give the real owner no unmistakable notice of his rights being infringed), but was actually refused and paid to another person, then there would be such virtual dispossession of the rightful owner as to put him to his remedy.' Now here the facts are exceptionally strong against Narayan and the plaintiff. To their knowledge, their tenants are ejected by the Desai after open conflict with him, and ever since 1893, those new tenants of their enemy pay their rents to the Desai. It is, I think, upon these facts not possible to resist the conclusion that Narayan's alleged rights were openly invaded, and his alleged title was openly challenged and jeopardised by the Desai. It follows, therefore, in the words of Mr. Justice Batty, that he was put to his remedy against the Desai whose acts manifestly assailed his own position and not merely the position of the tenants.
14. I have already observed that after the payment of the mortgage money, though the mortgage bond was handed back the lands were not delivered. I may now add that Narayan's successful suits of 1892 and 1894 were brought against the tenants only, and that the Desai was no party to them. The judgments in Narayan's favour proceed merely on the execution of the Kabulayats by the tenants, and not on any finding that Narayan had made over actual possession of the lands to the tenants. Moreover, the Desai not being a party, the Courts neither did, nor could, consider the question of actual possession, as that question arose between Narayan and the Desai. But upon this question we have in the present suit very notable admissions. The plaintiff's own brother and agent who is conducting this suit on her behalf Keshav Sheshgiri, Exh. 194, says in cross-examination: 'I am not prepared to swear that the lands were not granted as remuneration for service. I do not know if plaintiff's ancestors did or did not render service to the family of defendant 25. Defendant 25 has been in possession of the plaint lands for the last 10 or 15 years, and enjoying the profits wrongfully. Plaintiff's husband last recovered the rent of the plaint lands in 1891-92, but not afterwards. Defendant 25 recovered rents subsequent to 1891-92. In 1892-93 defendant set up title as owner and claimed to be in possession and refused to part with it.' Then Balvant Daso, Exh. 206, a witness for the plaintiff, and a person who bears no good will towards the Desai, says in cross-examination: 'I cannot say from what tenants defendant 25 has been taking Kabulayats in respect of Subraya's portion since the miscellaneous proceedings of 1892-93. Since 1895 defendant 25 has been recovering the rent of Subraya's portion of the plaint lands.' And the plaintiff's witness Nilappa Ningappa, Exhibit 219, speaks to much the same effect. 'I do not remember,' he says, 'how long the tenants of defendant 25 have been occupying the plaint lands. It may be 20 or 22 years. They have been paying the rent to defendant 25 and they told me so 7 or 8 years ago. They commenced paying rent to defendant 25 about 20 years ago.' In the face of reluctant admissions of this sort, it seems to me that the Court is bound to believe the otherwise credible and respectable testimony of the Desai, Exh. 199, when he says: 'I did not deliver possession of the lands after satisfaction of the mortgage. I have remained in possession all the time since satisfaction of that mortgage in my capacity as owner.' On this evidence I come to the conclusion that ever since 1893 on any computation the Desai has excluded the plaintiff and her predecessor from possession and enjoyment to their knowledge and in open assertion of his adverse claim. The facts seem to me to be so strong that if Mr. Justice Batty and I are right in thinking that in special circumstances adverse possession can run against a landlord during the currency of a lease, I cannot doubt that such possession will run against Narayan in the circumstances of this case even upon the violent assumption that the Kabulayats taken by him from the tenants were not taken collusively and in fraud of the defendant.
15. Upon all these grounds, I am of opinion that the decree of the Court below is right and ought to be affirmed with costs', this appeal being dismissed.
16. Plaintiff sues to recover possession as owner of the plaint lands together with mesne profits. Defendant 25 is the Sar Desai of Vantmuri and the plaintiff's claim is based on a Sanad granted by the then Desai to one Narayan Jivaji, plaintiff's ancestor, on 24th September 1774 (Exh. 201). Plaintiff's case is that the lands comprised in the Sanad were given to her family as a sub Inam without any condition or power of resumption and that the service of Chitnis or secretary rendered by the members of the plaintiff's family was in consideration of a money payment which used to be made to the family and that the grant was not in consideration of part and future service in that office. Defendant 25 alleges that the subject of the grant was the office and not the lands, that the office used to be remunerated by the income of the land, that he has the right of dispensing with the service and resuming the lands and that he did both about 1890-91. The other defendants are tenants on the lands in question.
17. In my opinion, it is of little avail to look at the Sanada in decided cases to construe the Sanad in suit. The construction of a Sanad in each case depends on its terms.
18. The present Sanad acknowledges the services of the grantee and his father in the capacities of Secretary and Store-keeper and records that the right of both these services shall be allotted to this grantee and continued to him from generation to generation. The remuneration for these services is detailed as property consisting of lands at Kamatnur and other places and Rs. 200 in cash payable every year with some perquisites for the office of Secretary and an equal amount and lands in different villages for the office of Store-keeper. The Sanad then goes on to say : 'I have granted you in Inam as above Its 400 as emoluments in cash and the said Kamat lands in respect of both services And I have settled and granted you the Kaulavani of the aforesaid Pargane and Kanu rights in respect of Sanads &c.; You, your sons, grandsons and other descendants from generation to generation are to go on enjoying the above property, and you and your descendants from generation to generation are to perform both the services and live happily.'
19. The proper construction of this document seems to me to be grant of an office to be remunerated from cash and lands. I do not agree with the plaintiff's contention that the lands were granted apart from the services, nor with the defendant's contention that he has the right of dispensing with the services and resuming the lands. So long as the grantee and his descendants performed the services, they were entitled to the remuneration of the cash and the lands.
20. In 1843 a dispute arose between the two branches of the plaintiff's family which was settled by the Desai allotting to one branch this right of service as Store-keeper with the cash and lands pertaining thereto and to the other branch (represented in this case by the plaintiff) the office of Chitnis with the cash and lands relating to that office.
21. Subsequently, the holder in 1843, of the office of Chitnis, died without issue and his adopted son, Nilkanth, on paying the customary Nazrana was recognised by the Desai who invested him with the office and the lands and perquisites of his adoptive father and enjoined him to the writing work connected with the office of Secretary, enjoy the lands, &c;, as aforesaid and render the service with devotion. After Nilkanth's death Gopal was recognised as his adopted son, invested with all the rights and powers of his ancestors and directed to discharge his duties with devotion.
22. After Gopal, his adopted son Balkrishna was recognized on agreeing to pay the customary Nazrana and perform the service (Exh. 459).
23. On Balkrishna's death, as his widow Sundrabai was unable to perform the service or depute a fit person to do so, the Desai withheld some of the perquisites and applied the proceeds towards the remuneration for the service which apparently he took from others. In 1881, Sundrabai adopted Narayan, the plaintiff's deceased husband. Narayan made an application on 13th August 1889 to have the perquisites restored as he was willing to serve the Desai. He also prayed that he might be excused the payment of the customary Nazrana (Exh. 492). It does not appear that the Desai ever recognized his adoption or accepted his offer of service. Indeed he says that Narayan refused to perform the services which would be a sufficient ground to defeat this suit for the ' performance of services was a condition to the enjoyment of the lands.
24. On 25th November 1879, Sundrabai mortgaged the lands with the Desai with possession for Rs. 2,500 (Exh. 56). The Desai was then a minor and did not attain his majority until 1885.
25. On 14th October 1889, Narayan redeemed the mortgage and received back the deed with satisfaction endorsed upon it but the Desai remained in possession of the lands.
26. The plaintiff contends that Narayan was in possession by virtue of Kabulayats passed by the tenants on 8th October 1889, but these Kabulayats (Exhs. 179-184) were obtained from tenants who had come in through the Desai during the currency of the mortgage.
27. Now. it may be that in a grant of this kind when the last holder of the office dies without issue, the services may be performed by somebody deputed by his widow. In the present case, as Sundrabai was unable to perform the service and did not depute any one to do it for her, the Desai withheld some of the perquisites and applied the proceeds towards the remuneration for the service from others. Narayan, Sundrabai's adopted son, did not perform the service nor was his adoption recognized by the Desai.
28. What, however, we are concerned with in the present case is that the plaintiff, who is Narayan's only heir, claims the lands as owner and I am of opinion that having regard to my construction of the terms of the Sanad her claim as owner must fail. Where the office is alive and involves the continuous performance of the duties I think she can only claim the remuneration from, as distinct from the ownership of, the lands if she depute somebody acceptable to the Desai to perform the services. But her suit claiming the property absolutely must fail.
29. Then it is shown the Desai was in possession in 1902. The plaint was filed on 21st December 1912. In order to succeed the plaintiff here must show not only title against the defendant but that she was dispossessed within twelve years of suit (Dharni Kanta v. Gabar All Khan (1912) 15 Bom. L.R. 445: this she cannot do. Narayan died in 1902-3. Even if the Kabulayats passed to Narayan in October 1889 by the six tenants who were put in by the Desai during the mortgage be considered as bona fide it is proved that all these six tenants had been ejected by the Desai who was in possession through his tenants for more , than twelve years before the suit.
30. But I question whether Narayan really ever secured possession after the mortgage. The six tenants had passed Kabulayats to the Desai during the mortgage: when it was paid off the then existing Kabulayats had not expired and before their expiry Narayan purported to secure these tenants as his tenants. The period of those Kabulayats was twelve years and it is improbable that the Desai who all along contested Narayan's right would give over possession as alleged. It is a matter of common knowledge that it is an easy matter to secure a Kabulayat from a tenant of this class. Such a Kabulayat is not therefore of high probative value. It is true Narayan obtained decrees for rent up to 1891 but to those suits the Desai was not a party and they cannot, therefore, be taken as evidence of possession against him.
31. Then it is contended that the entries in the Desai's account books show that he admitted the land belonged to Narayan and that he did not really set up an adverse title as against him. I do not think much value can be attached to the contents of these entries because it is shown that the entries continue in this form right up to the filing of the accounts and, even if the Desai knew of the form of these entries and that they would be used as evidence against him, they cannot affect the legal rights of the parties as established by the clear words of the Sanad. If the plaintiff says that the Desai waived the right of service the answer to that is that is not the plaintiff's suit.
32. I, therefore, think the suit fails and the appeal should be dismissed with costs.