N.J. Wadia, J.
1. These two appeals arise out of two suits Nos. 130 and 134 of 1930 filed by the respondent Gurunath Malhar Gumaste against Hanmant Raghunath Nadgowda and Ramchandra Anandrao Nadgowda to recover a one-fourth share in the suit properties by partition with mesne profits for three years before suit, future mesne profits and costs. The plaintiff in both the suits was the same. The defendants in the two suits were the descendants of the original holders of the Nadgowda watan. The suit property consists of the watani nadgowdki inam lands of Hippargi Para-gana. The plaintiff claimed that his ancestors were the gumastas of the Nadgowda watandars, and that by a sanad (exhibit 51) of the year 1791 Shamrao Anandrao Nadgowda the then watandar had made a grant of one-fourth of the lands to the plaintiff's ancestor Kashirao Honno for the gumastagiri service performed in the past and to be performed in the future. He claimed that his ancestors up to the time of his adoptive father Malhar Honno had been in enjoyment of this one-fourth share. In 1866 Shamrao Chintaman, the uncle of the present defendants and the grandson of Shamrao Anandrao the grantor of exhibit 51, mortgaged with possession his three-fourth share of the income of the plaint survey numbers to the plaintiff's ancestor Malhar Honno and Malhar remained in possession and enjoyment of the entire income of the suit lands till his death in 1907. In the meanwhile there had been a partition between the members of the defendants' family, and in 1906 and 1907 two suits were filed, suit No. 57 of 1906 by Hanmant Raghunath the defendant in the present suit No. 130, and suit No. 543 of 1907 by Ramchandra Anandrao the defendant in the present suit No. 134, for redemption of their shares of the property mortgaged by their uncle Shamrao. Malhar died during the pendency of the first suit and his widow Sundrabai was brought on the record. The second suit No, 543 of 1907 was filed against Malhar's heir Bai Sundrabai. Decrees were passed in these suits in favour of the plaintiffs, the present defendants, awarding them joint possession of the three-fourths share along with Sundrabai. To these suits certain persons to whom Malhar had mortgaged some of the suit lands had also been made parties. In execution of the decrees in these suits the defendants obtained possession of their three-fourths share, and soon after, in 1910, dispossessed Malhar's widow Sundrabai of the remaining one-fourth share also. The plaintiff was adopted by Sundrabai in 1920. He claims that his right dates back to his adoptive father's death in 1907, and that he is not affected by the dispossession of his adoptive mother Sundrabai by the defendants.
2. The principal questions for consideration in both the suits were whether the grant to the plaintiff's family was a grant of land burdened with service as alleged by the plaintiff, or a grant of an office to be remunerated by a share in the profits of the land as alleged by the defendants, and whether the grant wasresemble.
3. Three documents were principally relied on by the plaintiff as the basis of his title. The first document is the original grant by Shamrao Anandrao to Kashirao Honno in 1791 (exhibit 51). In 1849 another sanad (exhibit 31) was granted by Shamrao Chintaman, the grandson of the original grantor Shamrao Anandrao to Honappa Kashirao the son of the original grantee Kashirao Honno, and in 1863 a third sanad (exhibit 52) was granted by the same grantor Shamrao Chintaman to the same grantee Honno Kashirao. It is upon a consideration of these three documents that the two questions whether the grant was a grant of land burdened with service or a grant of an office to be remunerated by a share in the income of the land, and whether the grant is resumable or not, are to be decided. The trial Judge took the view that the grant was a grant of an office to be remunerated by a one-fourth share in the income of the lands but that the grant was irresumable. He therefore made decrees in favour of the plaintiff for separate possession of one-fourth share in the suit lands with mesne profits and costs. In appeal the District Judge of Bijapur agreed with the view taken by the trial Court that the grant was a grant of a fourth share in the net income of the plaint property and that it. was not resumable. But he held that as the plaintiff had no proprietary interest in the lands he could not claim to be put in possession of them either jointly or by partition, and varied the decree of the trial Court by giving the plaintiff a declaration that he has a hereditary interest in the suit lands to receive or recover one-fourth share in the net income thereof annually after rendering the services mentioned in the three sanads (exhibits 51, 31 and 52). Against that decree the defendants Nadgowdas have appealed, and the plaintiff has filed cross objections.
4. The contention of the appellants-defendants is that the grant having been held to be a grant of an office was prima facie resumable and that the suits should therefore have been dismissed. The plaintiff in his cross-objections has asked that possession of the lands should be awarded. The appeals from both the suits were heard together in the District Court and were disposed of by a single judgment. In this Court also both appeals have been argued together since the same questions are involved in both.
5. The trial Court and the lower appellate Court have both taken the view that the original sanad of 1791 (exhibit 51) and the later sanad of 1849 (exhibit 31) merely granted an office to be remunerated by a one-fourth share in the income of the watan lands and that the remuneration that was granted was not a one-fourth share in the lands themselves, but a one-fourth share in the income of the lands. The trial Court however took the view that the third sanad (exhibit 52) of the year 1863 was an amplification of the grant made in the original sanad of 1791 and that it contains words which implied that what was granted was a fourth share in the lands themselves. It was in consequence of this view that the learned trial Judge awarded the plaintiff actual possession of a fourth share of the watan lands by partition. The learned appellate Judge was of opinion that exhibit 52 was merely confirmatory of the earlier grants and did not confer anything more than had been conferred by the earlier documents.
6. In the first place, it is to be noted that the plaintiff himself expressly states in his plaint that he bases his claim on the original grant of 1791 (exhibit 51) and that the two subsequent sanads merely confirmed the grant which had been made in 1791 without in any manner altering the nature of the grant. According to the plaintiff himself therefore the grant made by exhibit 52 was not in amplification of the grant made in the two earlier sanads. Reading the first two sanads (exhibits 51 and 31) it seems that the view taken by both the lower Courts that these sanads conferred merely an office, viz. the office of the watani gumasta and were not a grant of land, is correct. Exhibit 51 begins by saying that Honno Kashirao, the father of the grantee, had exerted himself very much for the grantor's watan and had rendered very great service and that therefore the watan of gumasta had been conferred on him. The sanad further says that the grantor will continue the post of watani gumasta to the grantee without break so long as the sun and the moon endure. After referring to the fact that a separate sanad has been granted for one-half Chavar land out of the inam lands to the grantee for the maintenance of his family, the sanad says : ' You should take accordingly and should take one-fourth having given us three-fourths after crediting the lease-hold, share produce or cash, rent of all the inam lands in the various villages of the pargana.' Again, referring to all the three grants made, the sanad says : ' You should pay the inam cess on the half Chavar land given to you as akshaya inam, and one Chavar given to you as palkhi inam in all one Chavar and a half, and the one-fourth share of the amount due under the inam lands on the various villages'. The sanad concludes by saying : ' We should continue hereditarily the gumasta watan which is bestowed on you by us with pleasure. No one of our descendants is entitled to take away the gumastaship. If any one tries to do so, may the curse of the family Goddess be on him. Our descendants should continue as agreed by us in writing and you should be honest and loyal towards us, and should serve obediently by doing the pargana service, keeping in touch with Government and managing the watan.' There is not a single word in this sanad which can be interpreted as meaning that a share in the lands had actually been given to the grantee. The one and half Chavar of land which had been actually given to the grantee by a separate sanad are throughout distinguished from the grant of a share in the amount due under the inam lands which was granted by exhibit 51. The language of the sanad in my opinion leaves no room for doubt that what was conferred was the post of watani gumasta.
7. The second document of 1849 (exhibit 31) takes the plaintiff's case no further. That document begins by saying that the grantee Honno Kashirao had been ' making vahiwat as per sanad of watani gumasta given to his father by the grantor's grandfather Shamrao Anandrao.' It mentions that Honno Kashirao had requested the grantor's father Chintaman Shamrao to give an inam sanad and that Chintaman had promised to do so but died before he could do so. The grantor then says : ' It was his command and as you also now desire for an inam patra, we pass with pleasure the following inam sanad of the watan gumastaship of the said pargana as per past vahiwat.' After referring to the half share in the cash allowance, perquisites, etc., which had been given and to the gift of one and half Chavar of land, the sanad says : ' Excluding those, you are to give us three-fourth share in the yield...of the inam lands in the various other villages and you should take the remaining one-fourth '. The sanad concludes by saying : ' We will continue as above the gumastaship to you hereditarily. None of our descendants will ever raise any objections'. This document again clearly mentions the fact that what was conferred was the office of the watani gumasta and that the remuneration for that office was in the shape of a one-fourth share in the income of the lands. There is absolutely no reference to any actual share in the lands having been given.
8. The third sanad of 1863 (exhibit 52) undoubtedly contains some words which appear to go further than the two earlier sanads, exhibits 51 and 31. Exhibit 52 begins by saying 'our forefathers have passed a sanad to your father in respect of the watani gumastaship of the Hippargi Pargana. According to it you are making vahiwat hereditarily. Now that you demanded an inam deed on a stamp paper according to the Government Jaw, we admit all the previous sanads passed by our forefathers and pass this one..' After referring to the grant of one and half Chavar of land, the sanad says :
Out of this deducting the land given in charity gift to others assessed at Rs. 50, there remain fourteen villages and inam lands assessed at Rs. 303-8-0. In these, our share is three-fourths and your share for watani gumastaship is one-fourth and is with you in all the villages since long. According to this old custom, you should enjoy hereditarily. You should give us the income of our share year after year. We have no concern to let out the lands in the villages directly and to collect the income. Yourself and your descendants should enjoy and give us our three-fourths share annually according to the letting value and you should make your one-fourthshare.... In the above manner, you should make vahiwat of the watan for all times till the sun and the moon endure. We have no concern at all to question you for anything else except our share described above.... Yourself and your descendants should make vahiwat of the watani gumastaship till the sun and the moon last.
9. The language used in this sanad is slightly different from that used in the two earlier sanads. In spite of this fact however the sanad repeats in more than one place that what was conferred was the watani gumastaship and what the grantee was to take as his remuneration was one-fourth share in the income. That exhibit 52 was not intended to confer anything more than what had been granted by the earlier sanads may also be inferred from the fact that it expressly mentions that what was conferred by exhibit 52 was ' according to this old custom....'. The three sanads read together do not, in my opinion, confer anything more than the office of gumasta and provide that the office was to be remunerated by a one-fourth share in the income of the watan lands.
10. The principles on which ancient grants of this nature are to be interpreted have been discussed and laid down on more than one occasion. In Forbes v. Meet Mahomed Tuguee1 their Lordships of the Privy Council held in a case in which it had been proved that certain lands had been granted by sanads for the purpose of certain service which though then obsolete might again be required to be performed, that the sanads created a Chakeran, or service tenure, and were proservitlis impensis et impendendis, partly as a reward for past, and partly as an inducement for future, services ; and that the grantees, though liable to forfeit the lands, if they wilfully failed in the performance of the duties imposed by the sanads, were not liable to have such lands resumed, on the ground that there was no longer occasion for the performance of the particular services required. The grant in that particular case was clearly a grant of land burdened with services. The judgment mentions that the lands had been granted to the grantee, who had done, and was doing good service in repressing or preventing the incursion of wild elephants. After discussing the case-law on the subject, their Lordships say (p. 464) :
The conclusion which they would draw from the decided cases, as well as from the reason of the thing, is, that in every case the right to resume must depend in a great measure upon the nature of the particular tenure, or the terms of the particular grant.
They agree with the observation of Mr. Justice Jackson, Weekly Reporter, Vol. 6, p. 209, that there is a clear distinction between the grant of an estate burdened with a certain service and the grant of an office the performance of whose duties are remunerated by the use of certain lands.
They have already stated that, in their opinion, the grant in question does not fall within the latter category.
11. In Chandrappa v. Bhima bin Dassappa I.L.R. (1918) Bom. 37 : 6 Bom. L. R. 364 which was a case of a grant ' forming part of a deshgat vatan in remuneration for peon's service, it was said by Beaman J. (p. 40):
Where ancient grants in this country are brought into controversy at the suit of the grantor seeking to resume, the law has in this Presidency at any rate been clear, simple and invariable ever since I have had any practical knowledge of it. All grants of that kind for the purpose of applying this law fall into two main categories : grants of lands burdened with service, and grants of office to which lands are annexed by way of remuneration instead of or along with cash. The former grants are always irresumable, unless the grantor can show that they have been specially conditioned so as to enable him to resume for failure to perform these services, or at his own will to discontinue the services and resume the lands. Grants under the second category are always resumable, unless the grantee can show that they have been specially conditioned otherwise so as to prevent their resumability. The first category has been sub-divided, though I think quite unnecessarily, for the purpose of discussing the broad principles of law in the case of Lakhamgavda v. KeshavAnnaji I.L.R. (1901) Bom. 305 : S.C. 6 Bom. L. R. 364 into (a) grants burdened with service; (b) grants for services rendered in the past and to be rendered in the future, or, as we find in the older cases, pro servitiis impensis et impendendis. For the purpose of ascertaining the grantor's right to resume, this sub-division seems to me to have no relevance and to be of no assistance. Thus in every case of the kind it is always a question of fact and nothing more to determine whether the grant in suit falls within the first or the second category. If it be found to fall within the first category, it is always prima facie irresumable. If it be found to fall within the second category, it is always prima facie resumable. And in every case the burden of proof must necessarily be upon the grantor seeking to resume to show that either the grant was of a kind falling under the second category, or, if a grant of the kind falling under the first category, that it was specially conditioned.
12. The decision in Forbes v. Meer Mahomed Tuquee was relied on in a subsequent case before the Privy Council in Lakhampuda v. Baswantrao : (1931)33BOMLR974 , in which it was said by their Lordships (p. 976) :
The substantial question is, whether the land was resumable at the will of the plaintiff whether service was tendered or not. Similar problems are familiar in the Indian Courts. Principles for their solution were formulated by this Board in 1870 in the case of Forbes v. Meer Mahomed Tuquee. The distinction to be borne in mind is between the grant of an office to be remunerated by the use of land and the grant of the land burdened with service. In the former case the land will prima facie be resumable; in the latter case prima facie it will not : but the terms of the grant or the circumstances in which it was made may establish a condition of the grant that it was resumable.
According to the principles here laid down, it is clear that the grant in the present case being a grant of an office to be remunerated by a share in the income was a grant falling within the second category and therefore prima facie resumable, unless the grantee could show that there were special conditions in the grant which made it irresumable.
13. Mr. Belvi for the respondent relied on the decisions in Forbes v. Meer Mahomed Tuquee and Lakhamgavdav. Keshav Annaji in support of his contention that the grant in this case was not resumable. In the latter case Sir Lawrence Jenkins C.J. after discussing the case-law on the subject said (p. 309) :-
The cases appear to us to establish that the combination of an interest in land and an obligation as to service may fall at least under three heads; there may be a grant of land burdened with service, there may be a grant in consideration of past and future services, and there may be the grant of an office the services attached to which are remunerated by an interest in land.
It may no doubt be made a condition of either of the first two classes of grants that the interest in the land should cease when the services are no longer required, but in the absence of a provision to that effect lands held under those grants are not resumable at will.
Mr. Belvi relies on these two rulings as showing that where the grant is in consideration of past and future service, it is irresumable. But the grants in consideration of past and future services which are referred to in these two cases are grants of land. In discussing the case of Forbes v. Meer Mahomed Tuquee I have already pointed out that the grant in that case was a grant of land. In Lakhamgavda v. Keshav Annaji also the grant was a grant of land. The plaint itself alleged that the land had been granted by the plaintiff's ancestors to the ancestors of the defendant in consideration of service. The decisions in these two cases cannot help the respondent, once it is held, as in my opinion it must be, that the grant in this case was not of land but of an office to be remunerated by a share in the profits. On this view of the case the question whether the grant was a grant for future service only or for past and future services becomes immaterial. The grant being one of an office only would be resumable whether it was for past and future services or for future service only. I do not therefore think it necessary to discuss this question at any length, though if it were necessary to give an opinion I would say that the grant in this case was not for future service only, but for past and future services. The sanad of 1791 (exhibit 51) mentions that the watan of gumasta had been conferred on the grantee because he had exerted himself very much for the grantor's watan and rendered very great service. The mere fact that by a separate sanad certain land had also been given for the maintenance of the grantee does not mean that the grant of the office made by the sanad (exhibit 51) was not for past service. On the view which I take of the law however the fact that the office of watani gumasta was conferred on the grantee in recognition of past service and as remuneration for future service will not make any difference so far as the question of resumability is concerned. The grant being a grant of an office to be remunerated by a one-fourth share in the profits of the watan land is clearly resumable unless the respondent can show that there were conditions attached to the grant which made it irresumable.
14. The learned Assistant Judge has made a distinction between services which were to be performed by the grantee as the Deputy of the Nadgowda for Government and the services to be performed for the grantor. He has held that the services to be rendered to Government as watani gumasta by the defendant came to an end in 1872 after the Gordon Settlement, when they were dispensed with by Government, but that the services to be performed for the Nadgowdas continued. This would in my opinion make no difference on the question of resumability. Admittedly in 1910 the appellants Nadgowdas obtained possession of the whole of the watan lands and since then the services have neither been demanded by them nor performed by the plaintiff.
15. All the three sanads contain words which appear to suggest that the grant was intended to be irresumable. The first sanad (exhibit 51) says :
We shall continue the post of vatani gumasta of Hippargi to you without break so long as the sun and the moon endure.... We should 'continue hereditarily the gumasta watan which is bestowed on you by us with pleasure. No one of our descendants is entitled to take away thegumastaship. If any one tries to do so, may the curse of the family Goddess be on him.
16. Similar phrases occur in the other two sanads, exhibits 31 and 52. In Shekh Sultan Sani v. ShekhAjmodin I.L.R. (1892) Bom. 431. their Lordships of the Privy Council in interpreting expressions of this kind used in sanads said (p. 447):
With regard to the expression contained in some of the sanads previously cited of the grant being to the person named, 'his son, grandson, &c;, from generation to generation', it has been observed by many writers of authority on this subject that they do not, as might be supposed, impart a fixed hereditary tenure. Colonel Etheridge, in his preface to the narrative of the Bombay Inam Commission, quotes the language of Sir Thomas Munro in a minute of the 15th March, 1822, in which he states that the 'terms in such documents (sanads) 'for ever', ' from generation to generation ', or in Hindu grants, ' while the sun and moon endure', are mere forms of expression, and were never supposed either by the donor or receiver to convey the durability which they imply, or any beyond the will of the sovereign.'
The mere use of the language which I have quoted above cannot therefore be taken to indicate that the grant was intended by the donor or understood by the donee to be irresumable. That the parties did not so understand the grant seems also to be indicated by their conduct. In spite of the grant of the sanad in 1791, it is evident from the subsequent sanads that the plaintiff's family, the grantees, asked for and obtained fresh sanads from every succeeding Nadgowda. Both the subsequent sanads, exhibits 31 and 52, make mention of such requests. Apart from these terms used in the sanads there is no evidence to show that there was any condition attached to the grant in suit which would take it out of the ordinary rule laid down in Chandrappa v. Bhima bin Dassappa that grants of office to be remunerated by a share in the income are always resumable.
17. Mr. Belvi for the respondent has referred to the opinion of Mr. Phadnis in his commentary on the Bombay Hereditary Offices Act, 4th edition, p. 32, that ' A deputy, whose office was created before the introduction of Regulation XVI, 1827, into the locality, or was created or recognised by the authority which created the principal Watan office cannot be superseded by the watandar principal and the deputy can legally hold his mutaliki vritti notwithstanding his principal'. Mr. Phadnis has based this opinion on the decisions in BhimajiBalvant v. Giriapa Timapa Desai I.L.R. (1889) Bom. 82 and Lakshman Krishna v. NaraymraoRavlojirao (1896) P.J. 355. Both these cases however were cases of grants of land, not of office. In Bhimaji Balvant v. Giriapa Timapa Desai it is stated in the sanad that in consideration of the services rendered which were of a very special nature (p. 87).. I have of my own free will given to you by this writing, as remuneration on account of mutialliki, a third share in the wholedeshgat (in) the inam villages and kamat-katte, jamin-jumala, hak-dak, jakat and kul-bab kulkanu-a third share in whatever that is continued (to us). Therefore you are to enjoy the mutaliki estate through your sons, grandsons, &c.;
18. In commenting on this sanad, exhibit A, Sargent C.J. said (p. 89) :
It is to be observed that exhibit A is not merely the creation of a permanent office, for the services of which a certain share in the vatan is allotted as remuneration, but that it proceeds on the special service to be rendered to the family by the recovery of the vatan itself. In other words, the performance of the service as mutalik is not the entire consideration or motive for the grant, nor does it expressly provide for the grant ceasing when the services should be no longer required. This distinguishes it from the grant in Krishnaji v.Vithalrao I.L.R. (1887) Bom. 84 and brings it within the principle upon which the Privy Council decided in favour of the continuance of the grant in Forbes, v. Meer Mahamad Tuquee where there was no longer any occasion for the service to be performed...
The principle upon which the Privy Council decided Forbes v. Meer Mahomed Tuquee was that the grant being one of land for services rendered and to be rendered was irresumable. That principle, as I have already said, cannot apply to the present case. In LakshmanKrishna v. Narayanrao Ravlojirao the grant was clearly of a very different nature from that with which these suits are concerned. A watandar of deshgat land had granted land to the plaintiff's family for mutaliki (service) rendered in past times and for money payments made in the interest of the watan, nothing being said in the grant about any future service nor any obligation of service being imposed by it. Neither of these two decisions can help the respondent. In my view therefore the grant in this case was one of an office to be remunerated by a one-fourth share in the income of the watan land. There is nothing in the language of the sanads which can be taken to imply that the grant was irresumable. The grant is one which the appellants-defendants were entitled to resume. They must be taken to have resumed it in 1910 when they admittedly obtained possession of the whole of the watan property from Sundrabai the widow of Malhar and ceased to demand or receive any service from the grantees.
19. It was argued that the contention of the appellants that the grant was a grant of an office and not of land and that they were entitled to possession of one-fourth of the watan property was barred by res judioata by reason of the decisions in two suits, No. 57 of 1906 and No. 543 of 1907, which had been brought by them against Malhar Honno the adoptive father of the present plaintiff and Sundrabai kom Malhar the adoptive mother. These suits, however, were suits for redemption of the property which had been mortgaged by Shamrao Chintaman to Malhar Honno in 1866. The question whether the present plaintiff or his predecessors-in-title Malhar or Sundrabai were entitled to hold one-fourth of the watan land under the terms of the sanads of 1791, 1849 and 1863 was not specifically raised in that suit nor was it decided. The suits did not relate to the one-fourth share of the grantees with which the present litigation is concerned. I agree therefore with the view taken by the lower appellate Court that the decisions in those suits cannot operate as res judicala in the present suit. Nor can the decision in suit No. 7 of 1871 operate as res judicata. As has been pointed out by the trial Judge the decision in that suit proceeded on the ground that there was no failure on the part of Honno to perform the service and that therefore Anandrao was not entitled to eject Honno or to possession of the land. The appellant's contention that the grant wasre-sumable is not therefore barred as res judicata.
20. The plaintiff has therefore failed to show that the grant made to his ancestors in 1791 and subsequently affirmed by the sanads of 1849 and 1863 was a grant of land burdened with service. The grant was one of an office of watani gumasta to be remunerated by a one-fourth share of the income of the land. As such it was clearly resumable and in 1910 the appellants-defendants did actually resume the grant by obtaining possession of all the lands. Service has neither been demanded by the defendants nor performed by the plaintiff since then. The plaintiff's suit must therefore fail.
21. Both the appeals will therefore be allowed, the decrees of the lower appellate Court reversed and the plaintiff's suits dismissed with costs throughout. The cross-objections will also be dismissed with costs. For the purpose of pleader's fee the claim in the cross-objections in appeal No. 338 of 1933 will be valued at Rs. 2,500 and in appeal No. 339 of 1933 at Rs. 2,800.