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Ramchandra Ganpatrao Dalvi Vs. Lakshmibai Shamrao Kalkundri - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 198 of 1934
Judge
Reported inAIR1938Bom331; (1938)40BOMLR400
AppellantRamchandra Ganpatrao Dalvi
RespondentLakshmibai Shamrao Kalkundri
DispositionAppeal dismissed
Excerpt:
.....it is a saranjam village' and 'as between government and the dalvis the village is simply an inam village to them by a herekar. that seems to be the meaning of the expression used in exhibit 59 that there was no reason for interfering with the state of the village, and also the meaning of the following passage in exhibit 103 :government having recognised the original alienation need not interfere in the case of any further disposition by the alienees so long as it is clearly understood that the villages form part of the here saranjam and are resumable on the extinction of the herekar family. as it was found that the plaintiff's family was in possession and enjoyment of the village as inamdars since long before the advent of the peshwas, the commissioner and subsequently government..........jointly with defendants nos. 2 to 8, with mesne profits and costs. he alleged that the suit village had been acquired by the ancestors of the plaintiff and defendants nos. 2 to 8 before the advent of the peshwa rule; that in 1858 the british government recognised ramchahdrarao and yeshwantrao, the plaintiff's ancestors, as sarva inamdars and entered in the records the property in suit as sarva inam political saranjam class i, descendible to the male heirs of the holders and not to be interfered with as long as the here jahagir existed ; that the holders had nothing more than a life interest in the property ; that in 1890 five out of the then seven holders of the estate jointly passed two registered sale-deeds in favour of two brothers named kalkundris in respect of the entire.....
Judgment:

Sen, J.

1. The plaintiff-appellant and defendants Nos. 2 to 8 belong to the family of the Dalvis of the village Kurnibujavade. The plaintiff sued to recover possession of the plaint village Kurnibujavade jointly with defendants Nos. 2 to 8, with mesne profits and costs. He alleged that the suit village had been acquired by the ancestors of the plaintiff and defendants Nos. 2 to 8 before the advent of the Peshwa rule; that in 1858 the British Government recognised Ramchahdrarao and Yeshwantrao, the plaintiff's ancestors, as sarva inamdars and entered in the records the property in suit as sarva inam political saranjam Class I, descendible to the male heirs of the holders and not to be interfered with as long as the Here Jahagir existed ; that the holders had nothing more than a life interest in the property ; that in 1890 five out of the then seven holders of the estate jointly passed two registered sale-deeds in favour of two brothers named Kalkundris in respect of the entire village ; that the other two holders gave a manyatapatra to the vendors acquiescing in the sale ; that the vendees sold the property in 1900 to one Huilgolkar, who sold it again next year to Shamrao Vithal Kalkundri ; that Shamrao was in possession of the property till his death in 1924 ; and that his widow, who is defendant No. 1, succeeded to him.

2. The plaintiff, originally a son of Daulatrao, one of the two holders who gave the manyatapatra in 1890, claims to be the adopted son of Ganpatrao Krishnarao Dalvi, Krishnarao being a brother of Daulatrao and sen ofRamchandra, son of the eldest son of Nag Dalvi, the original acquirer of the sarva inam. Of the eight defendants only defendant No. 1 resisted the plaintiff's claim. She contended inter alia that the suit was barred by limitation as well as by res judicata; that neither the plaintiff nor defendants Nos. 2 to 8 were members of the saranjam family ; that the plaint village was not a saranjam of the plaintiff and defendants Nos. 2 to 8, though it might be a saranjam of the Here jahagir, and that the law applicable to the Here jahagir saranjam was not applicable to the plaintiff and defendants Nos. 2 to 8.

3. On these pleadings the learned First Class Subordinate Judge raised issues, all of which, except one, he decided against the plaintiff, and he dismissed the suit accordingly.

4. On the question of the plaintiff's adoption to Ganapatrad the learned Subordinate Judge came to the conclusion that the adoption was not proved. His grounds were : first, that two important witnesses were unreliable, being relatives of the plaintiff; secondly, that there was delay of more than a year between the alleged date of the adoption and the date of the adoption deed produced ; and, thirdly, that for more than a year after the alleged adoption the plaintiff continued to sign his name as Bhausaheb Daulatrao Dalvi and not as Ramchandra Ganapatrao Dalvi, which would be his name if the adoption was true. We think that on the evidence the learned Subordinate Judge was perfectly right in his conclusion and we see no reason to come to a different conclusion.

5. The main contention of the plaintiff in this case was that the plaint village was a saranjam in respect of which the plaintiff's family had the rights and obligations of the saranjamdar and that an alienation made by a saran-jamdar of saranjam property beyond his lifetime is void and illegal. Without: examining this general proposition regarding the effect of the alienation of saranjam property beyond the lifetime of the saranjamdar, we propose in the first place to examine the question whether the plaint village constituted a saranjam village and whether the plaintiff's family can be said to be the saranjamdar's family in respect of that village. The plaintiff bases his contention in this respect on the decision given in 1858 by the Inam Commissioner Major Gordon appointed by Government under Act XI of 1852. That decision is to be found in exhibit 59 which is called a faisal-nama. Its heading shows that the village was being continued as a sarva inam in the dumalazada of 1855 in the name of Ramchandra bin Narappa and Yeshwant bin Girjappa Dalvi. The faisalnama states that the aforesaid village forms part of the jahagir of the Herekar chief; that so long as the jahagir is continued to the Herekar chief, there is no reason for interfering with the state of the aforesaid village, and that the aforesaid decision does not at all affect the right of the inamdar of the village, by which expression it is admitted that the Herekar chief is meant. An abstract of this decision was shown in a register kept for the purpose I (exhibit 58) in which Ramchandra bin Narappa and Yeshwant bin Girjappa Dalvi were shown as having claimed the entire village as sarva inam, and a summary of tha decision (exhibit 59) is given in this register. A somewhat similar summary also appears in the register of alienated villages and lands (exhibit 57) kept under the Bombay Land Revenue Code. The appellant has relied on the entries in this register in columns 3 and 4, In column 3 the names of ' the present alienees ' are given as Krishnajirao Ramchandrarao and Lingo-jirao Girajrao Dalvi, and in column 4 the class of alienation is shown as Class I political saranjam. The entry under columns 5 to 10 shows that the entries were based on the decision of Major Gordon in 1858. In column 11 the duration of the tenure is given as 'to be continuable so long as the Herekar jahagir of which this village formed a part is allowed to remain in the possession of the Herekar.' It seems to us that the preparation of this register being based on Major Gordon's decision in 1858, except as regards the area, survey assessment, etc., it cannot be held to record anything as to the class or nature of the tenure in excess of what is contained in the said decision. This seems to us clear from the entries in columns 5 to 10 and column 11. The entry in the third column, namely, as to the names of the present alienees must, therefore, mean the names of the alienees from the original grantee if there was any subsequent alienation. And the entry in column 4 ('class of alienation') as Class I, political saranjam, must have reference to the original alienation, though it is no doubt prima facie possible to read the two entries as referring to the same alienation. Major Gordon did not decide the alienation in favour ofKrishnajirao and Lingojirao or of any other member of the Dalvi family as holding a political saranjam. We, therefore, think that the entry in column 4 must be interpreted as having reference to the original alienation and not to the one subsequent to the original grant. In 1900 Government passed a resolution (exhibit 103) regarding the status of the holder of Kurnibujwade, which is described in the heading as a pot-inam village of the Here saranjam. The following passages in this resolution appear material :

The Here saranjam consists of forty-seven villages-twenty-three in the actual possession of Herekar, the saranjamdar, and twenty-four which have been alienated by his ancestors, in the possession of the alienees or their present representatives. According to the rules, which have been in force for many years, a saran-jamdar cannot alienate any portion of his saranjam ; and therefore the alienations of these twenty-four villages by the saranjamdar, if made after the rules were passed, would have been illegal and not recognised by Government.'

Having already recognised the original alienation by the saranjamdar of these twenty-four villages, they (i.e. Government) have no interest or concern in preventing the further sub-alienation of the same twenty-four villages, whether by sale or by decree of a Court.'

The village was given in inam by the ancestor of the present Herekar to an ancestor of the Dalvis. But the Herekar remains the saranjamdar while the Dal-vis are only inamdars. As between Government and the Herekar it is a saranjam village which would lapse to Government with all the Herekar's other saranjam villages, whether still in the Herekar's possession or granted in inam to other persons by a Herekar, on the extinction of the Herekar family in the male line. As between Government and the Dalvis the village is simply an inam village granted to them by a Herekar. In neither case have Government at present any concern with it.

6. Thus the saranjam appears to have originally consisted of forty-seven villages out of which twenty-four, including the plaint village, had been already alienated at the date of Major Gordon's decision, and Government recognised these alienations. One of the previous saranjamdars, the then head of the Herekar family, granted an inam consisting of the plaint village to one of the plaintiff's ancestors. There seems to be no doubt that the saranjamdar could make a grant of such an inam. Such a case is dealt with in Sakharam V.Trimbakrao (1920) 23 Bom. L. R. 314 which was a case of a grant of mirasi and inarni rights in certain lands by the saranjamdar of a village. This case lays down that such grant is binding on the successor of the saranjamdar. It is not contended by counsel for the appellant that the Herekars themselves had no right to make such an inam grant beyond the lifetime of the original grantor. Such a contention would cut away the very basis of the plaintiff's title. But it has been contended by Dr. Ambedkar for the appellant that it is possible for a saranjamdar to grant a saranjam to an outsider, the grant itself constituting a fresh saranjam. For this proposition he has relied on Sir Sayaji Rao v. Madhavrao : (1928)30BOMLR1463 That was a case in which the Raja of Satara had granted a saranjam to the Gaekwar of Baroda by a sanad and there was a subsequent grant out of the same lands by the Gaekwar of Baroda to one Limbaji as a new inam. With great respect, we have found it difficult to follow the line of reasoning at pages 1471 and 1472 which is relied on, as it is not easy to discover which grant is being referred to. Reference is first made to Divan Bahadur Rao's contention that the grant contained the expression ' a new inam,' and that the word ' inam ' did not mean ' saranjam.' Thereafter Mr. Justice Fawcett has come to the conclusion that the grant to the Gaekwar must be held to be one of saranjami. In this case it further appears that the Gaekwar had accepted the position that the grant made by himself was a saranjam grant and ultimately Mr. Justice Fawcett appears to have decided the point mainly on the ground that primarily it was for the Government to determine in any particular case of this kind whether a political tenure such as the saranjam existed. We think that this case is no useful guide to the question whether a saranjam can be created by the saranjamdar. It appears that in the present case all that the Inam Commission recognised was that the grant by the saranjamdars, i.e. the Dalvis, was an inam or a sarva inam, but as subject to the condition of forfeiture in case of the extinction of the Herekar family. It cannot be said that the plaintiff's family were grantees from Government or that the inam was created by Government. A saranjam, which is a political inam, appears by its very nature to be incapable of being created except by Government or the sovereign power alone. It does not appear from the decision of the Inam Commissioner, which must be the basis of the appellant's contention, that the Inam Commissioner even recognised the position of Dalvis as saranjamdars. All that the decision stated was that the plaint village was a part of the saranjam of Herekar and that it could not exist beyond the lifetime of the Here saranjam.

7. In this connection it is significant that in the resolution of 1900 (exhibit 103) it is distinctly stated : ' As between Government and the Herekar it is a saranjam village' and ' as between Government and the Dalvis the village is simply an inam village to them by a Herekar.' It is also to be remembered that exhibit 58 shows that the claimants before the Inam Commissioner in 1858 claimed the village only as a sarva inami and as nothing higher than that. We are left in some doubt as to the exact meaning of the expression ' sarva inam.' This expression, as we have seen, was to be found in the dumalazada of 1855, and therefore appears to have been used with reference to this village prior to the decision of Major Gordon. Dr. Ambedkar for the appellant has contended that ' sarva inam' is used in contradistinction from expressions such as ' baki inam,' i.e. an inam in which the original grantor's rights, or some of them, are saved, and that ' sarva inarn' means a grant of all the original grantor's rights, i.e. the complete saranjam in this case. This village, however, has not been treated either by the Inam Commissioner or in the Government records as a saranjam separate from the Herekar's, with an independent existence of its own as a saranjam. As the saranjamdar had no right to create a saranjam, the interpretation that is sought to be put by Dr. Ambedkar on the expression ' sarva inam' appears to us to be impossible.

8. With regard to the entry in column 4 in exhibit 57 I have already stated that that entry cannot be used to support the appellant's contention that it was the plaint village which was being referred to therein as a Class I, political saranjam. It thus appears to us that the village Kurnibujavade cannot by itself be regarded as a saranjam and that it was made inam by one of the saranjamdars the Herekars ; and it seems to us that there is nothing in the evidence to show that such alienation of the village was intended to be restricted in any way. That seems to be the meaning of the expression used in exhibit 59 that there was no reason for interfering with the state of the village, and also the meaning of the following passage in exhibit 103 :

Government having recognised the original alienation need not interfere in the case of any further disposition by the alienees so long as it is clearly understood that the villages form part of the Here saranjam and are resumable on the extinction of the Herekar family.

9. As the appellant has not succeeded in showing that he was the saranjamdar of the plaint village, it appears to us unnecessary to examine the further question whether a saranjamdar can alienate the whole or any part of his saranjam beyond his lifetime and whether such alienation would be void or illegal. Dr. Ambedkar has referred us to several cases to show that a saranjamdar, though holding a hereditary estate, cannot be said to have an absolute interest therein, in the sense that he can alienate the saranjam beyond his lifetime. It becomes unnecessary for us to go into these cases in view of the conclusion we have arrived at. We must, therefore, hold that the main contention] of the appellant fails. Two further points arise as to limitation and res judicata.

10. On the question of res judicata, we find that in 1903 Shamrao Vithal Kalkundri brought suit No. 135 of 1903 for a declaration that he was the owner of the plaint inam village and as such was entitled to have his name entered in the register as a khatedar. Krishnajirao Ramchandrarao and Lingoji-rao Girajrao Dalvi, the same persons as those named in exhibit 57 as the holders of the suit village, opposed the suit. In this case there was no issue as to the capacities in which both parties were claiming to be the owners of the village, though it is possible to argue that the question of the Dalvis holding the village as saranjamdars was a necessary issue arising in the suit. We think, however, that though there is considerable force in Mr. Thakor's argument, it is not necessary for us to express any opinion as to whether the decision in the suit of 1903 operates as res judicata.

11. On the question of limitation, Dr. Ambedkar has referred us to Narsinh v. Vaman Venkatrao I.L.R. (1909) Bom. 91 : 11 Bom. L. R. 1102 in which certain lands belonging to two brothers were leased by one of them under a perpetual lease which was attested by the other brother, arid a suit was brought for recovery of the lands within twelve years of the death of the brother who died last for the recovery at the lands leased. The defendants defended the suit on the ground, inter alia, of limitation, the suit not having been brought within twelve years fromi the date of the lease, and it was held that limitation began to run from, the date of the death of the survivor of the joint lessors. We think that this decision which dealt with a watan property is not applicable to the facts of the present case in which the property has been held by us to be a sarva inam. The learned Subordinate Judge has also come to the same conclusion, and has held that the cause of action arose in 1890 when the sale-deeds were passed. We think, however, that the period of limitation would begin to run from the date of the death of the plaintiff's father, Daulatrao, who died in 1914. The suit having been instituted seventeen years after this date is, therefore, barred by limitation. The result, therefore, is that the appeal must be dismissed, with costs.

Rangnekar, J.

1. I agree. It seems to me that upon the evidence before the learned First Class Subordinate Judge there was only one conclusion to which he could come. The plaintiff's case was that the village in suit was a saranjam village and therefore the alienations made by his predecessors-in-title in 1890 were not binding upon him upon the death of the survivor of his predecessors-in-title. He relied upon several documents, the main document being a faisalnama of the Inam Commissioner of 1858 (exhibit 59) and the connected document (exhibit 58). Exhibit 59 was, if I may say so, the root of his title.

2. It is quite clear that the Inam Commissioner could not and in fact did not create or grant any new inam or saranjam. His duty was to adjudicate the claims made by the claimants upon the evidence brought before him and to record his decision. The documents show that the claim made before the Inam Commissioner in 1858 by the predecessors-in-title of the appellant was that they were the holders of a sarva inam. The Commissioner upon the evidence found that this formed part of the ancient saranjam tenure which was granted long before the advent of the Peshwa rule to the Herekar family. As it was found that the plaintiff's family was in possession and enjoyment of the village as inamdars since long before the advent of the Peshwas, the Commissioner and subsequently Government did not like to disturb the alienation, but made it clear that the alienation would only be good and valid as long as the Herekar saranjam was not extinguished. The Commissioner's actual decision was that the plaintiff's family should continue in the enjoyment and possession of this village until the extinction of the saranjam on failure of the male line of the Herekar family. This was accepted by Government.

3. That being so, I think the plaintiff's claim that the Herekar family granted the village in saranjam to his ancestor must fail.

4. Apart from that, it seems to be extremely doubtful whether a saranjamdar can create a saranjam out of the whole or any part of the property in favour of a stranger. A saranjam or jahgir, as is well known, is a political tenure created from or dependent on political considerations, the existence of which can only be determined by Government, and it seems to me to be difficult to hold that it would be open for a saranjamdar to create a saran-jam out of his own property in favour of a stranger.

5. I think, therefore, apart from the other evidence which my learned brother has referred to, the conclusion reached by the learned First Class Subordinate Judge upon these documents is correct and the appeal fails.

6. On the question of limitation I need only say that the case relied upon by the learned Counsel for the appellant has no application to the facts of this case, if the finding at which the Court below and we have arrived is correct. At the latest the cause of action to bring the present suit accrued to the appellant upon the death of his father in the year 1914. The present suit having been instituted more than twelve years after his death must be held to be barred by limitation.

7. As we have dealt with most of the points, I think it is necessary to record our finding on the subject-matter of issues Nos. 13 and 14 in this case. One of the contentions of the defendants was that assuming that the plaintiff succeeds in establishing that the sales of 1890 were not binding upon him, still he was not entitled to certain property which was not included in those sale-deeds. This property, the defendants contended, came to them by way of alienations not from any of the ancestors of the plaintiff but from a third party. The learned Judge accepted this contention and we think rightly.

8. The appeal, therefore, is dismissed with costs.

9. Respondent No. 1 alone will get the costs of the appeal. The appellant will have to pay Government duty.


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