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Madhavrao Raste Vs. Imam Bapu Sherkar - Court Judgment

LegalCrystal Citation
Decided On
Case NumberSecond Appeal No. 322 of 1923
Reported in(1926)28BOMLR433; 94Ind.Cas.737
AppellantMadhavrao Raste
Respondentimam Bapu Sherkar
DispositionAppeal dismissed
.....applicable to the personal grant made by the bombay government in 1830 to ardeshir, which was then under consideration. trimbakrao is based on the view that a saranjamdar like the plaintiff has an absolute and not merely a life-estate, i respectfully differ from it; 337 the plea of adverse possession by the defendants, who have all along held the lands as tenants, must fail;.....act of hers was beyond her authority and against the rule that a saranjamdar's estate is only a life estate, which is resumed by government on the death of the saranjamdar and granted again to his successor, and that accordingly the plaintiff is not bound by these particular grants or leases.3. the material facts are that in 1862 a young boy named gangadharrao was adopted by umabai, the widow of the last saranjamdar, and so he became the saranjamdar. on february 26, 1862, umabai granted the miraspaira, exhibit 16, to the ancestor of two of the defendants in suit no. 103, and in 1863 she granted a kabulayat, exhibit 31, to the predecessor-in title of the defendants in suit no. 101. in 1866 gangadharrao died a minor. in the same year the saranjam was attached and managed by government.....

Fawcett, J.

1. These appeals arise out of three suits Nos. 101 102 and 103 of 1920. They were tried together, and the appeals from the decision therein were also dealt with together in the lower appellate Court, Here also the three appeals can conveniently be disposed of in one judgment.

2. The plaintiff in each of these suits is Sirdar Raste, a Saran-jamdar residing at Poona, and he sued to recover possession of the plaint lands, alleging in each case that it was part of his Saranjam property; that Umabai, as guardian of the previous minor Saranjamdar, had let it under a kabulayat to the defendants' ancestor; that this act of hers was beyond her authority and against the rule that a Saranjamdar's estate is only a life estate, which is resumed by Government on the death of the Saranjamdar and granted again to his successor, and that accordingly the plaintiff is not bound by these particular grants or leases.

3. The material facts are that in 1862 a young boy named Gangadharrao was adopted by Umabai, the widow of the last Saranjamdar, and so he became the Saranjamdar. On February 26, 1862, Umabai granted the miraspaira, Exhibit 16, to the ancestor of two of the defendants in Suit No. 103, and in 1863 she granted a kabulayat, Exhibit 31, to the predecessor-in title of the defendants in Suit No. 101. In 1866 Gangadharrao died a minor. In the same year the Saranjam was attached and managed by Government up to 1873. While it was so under attachment, ITmabai granted the kabulayat, Exhibit 18, to the ancestor of the defendant in Suit No. 102. In 1873 Umabai, with the permission of Government, adopted another boy named Anandrao. In 1896, Anandrao came of age and presumably took over the management ot the Saranjam. He died in 1908, leaving the plaintiff, his son, a minor, The Saranjam was resumed by Government and regranted to the plaintiff on August 4, 1908. The plaintiff came of age in February 1917, and he brought these three suits within three years of his thus attaining majority. The trial Court dismissed all the three suite and this decision has been confirmed by the lower appellate Court. The lower Court has held that the lands in question are part of the plaintiff's Saranjam estate, and this is supported by Exhibit 19, which shows the lands as such.

4. As regards the defendants' interest in the lands, the lower appellate Court has not come to any finding, except that the recitals in the documents Exhibits 31,18 and 16, as to the existence of any prior interest in the land cannot be taken as conclusive. So far as the Yerande defendants in Suit No. 103 and Appeal No. 333 are concerned, tbeir title-deed, Exhibit 16, is in terms a miraspatra, and their tenancy (apart from any question as to the validity of the grant) is of permanent nature. The Sherkar defendants in Suit No, 101 and Appeal No. 332, and the Dhanwe defendants in Suit No. 102 and Appeal No. 334, are not in so secure a position, because the documents, Exhibits 31 and 18, though mentioning previous possession, do not in terms grant permanent tenancies of a mirasi or other kind. But in view of the facts that the plaints seek to recover possession of the lands only on the ground that the kabulayats, Exhibit 31, 18 and 16, are not binding on the plaintiff, and that his Mukhtyar, Exhibit 24, expressly admitted on the plaintiff's behalf that the Sherkar and Dhanwe defendants were treated as permanent tenants under the kabulayats, they must be taken to be also mirasdars. To hold otherwise would be to make out a new case for the plaintiff contrary to the pleadings.

5. The main issue, therefore, is the third one framed by the lower Court, viz., what is the effect of resumption and regrant of the Saranjam on defendants' interest in the property. The First Class Subordinate Judge held that it had none. Dewan Bahadur Rao for the appellant contends that the granting of a permanent lease is an alienation; that no Saranjamdar can validly alienate the Saranjam estate, which, as laid down in No. 5 of the Saranjarm Rules, is only a life-estate, for any period beyond his life-time; that the recognition of these permanent leases by the plaintiff's predecesaor-in-title was only a continuance of the tenancy for the Saranjamdar's life; and that the plaintiff, having sued within three years of his attaining majority, s entitled to a declaration that the kabulayats in question are not binding upon him.

6. In support of these contentions he has mainly relied upon Madhairao Waman v. Raghunath Venkatesh I.L.R.(1923) Horn, 798 : 25 Bom. L.R. 1005 and Vidya Varuthi v. Balusami Ayyar I.L.R. (1021) Mad 831: 24 Bom. L.R. 629 The first of these casea related to service watan lands, the alienation of which was prohibited by Section 20 of Regulation 16 of 1827 and is now prohibited by Section 5 of Bom. Act III of 1874. It no doubt affords clear authority for the contention that the grant of a right of permanent tenancy is an alienation within the meaning of those enactments. But the applicability of this ruling to the present case is clearly open to question. There is no direct prohibition by the legielatute e of alienation of Saranjam lands, as there is in the case of service watan lands. All that is enacted is that, as being lands held on po'itical tenure, they are 'resuniable and cotinuable in such manner and on such terms as Government on political considerations, may from time to time see fit to determine': see Bom. Act VII of 1863, Section 2, Clause 3; Act XI of 1852, Schedule B, Rule 10, read with Bom. Act II of 1863, Section 1, Clause 2, and Section 16(c); Hari Sadashiv v. Shaik Ajmudin I.L.R. (1886) 11 Bom. 235 and Shekh Sultan Sani v. Shekh Ajmodin I.L.R.(1892) 17 Bom. 431 In the Saranjam Rules of 1898, there is also no express prohibition against alienation beyond the life-time of a Saranjamdar, though Rule 5 no doubt implies that a Saranjamdar is a life-tenant and cannot alienate, mortgage or otherwise charge the estate beyond his lifetime; while Rule 10 provides for the removal of civil Court attachments, or other process, which operate to divert the Saranjam or its revenues from the Saranjamdar. This implied prohibition is iu accordance with the view taken by this Court in Krishnarao v. Rangrao (1867) 4 B.H.C.R. I and Dosibai v. Ishwardas Jagjvaddas I.L.R(1885) . 9 Bom. 581 and by the Privy Council in Gulabdas Jagjivan-das v. The Collector of Surat I.L.R.(1878) 3 Bom. 189 In cases where the object of the Saranjam grant is to make a permanent provision for the maintenance of an important family, the Saranjam or Jaghir, although ordinarily hereditary, is not alienable beyond the life of the actual holder, as laid down in these rulings. But in cases where the object of the grant is purely personal, e.g.,to ensure the rendering of certain services to the State or to reward an officer on retirement for faithful services, then (as was held in Dosibaiv. Ishwardas Jagjivandas I.L.R.(1885) 9 Bom 561 : I.L.R(1891) . 15 Bom. 222 the grant is, in the absence of express provision to the contrary, one of an absolute estate; and an alienation made by the holder (or the time being is binding upon his successors. Such a case is a special one and clearly inapplicable to Saranjams like the present one, which were entered in Col. Etheridge's Saranjam list as 'continuable hereditary,' under the circumstances detailed in Dandekar's Law of Land Tenures, Vol. I, pp. 171-173, Such Siranjama clearly fall under the first category of grants made for the maintenance of an important family, and in any case are subject to the express enactments in Act XI of 1852 and Bom. Act VII of 1863 making them continuable only in accordance with rules framed by Government. In Dosibai's case, Lord Hobhouse in his judgment says (p. 227):-' But where there is a grant to a man and his heirs, and nothing to control the ordinary meaning of the words, the grantee takes an absolute interest.' That principle was clearly applicable to the personal grant made by the Bombay Government in 1830 to Ardeshir, which was then under consideration. But in cases of Saranjams of a date prior to 1751, settled under Bom. Act VII of 1863, there are the clear provisions of Section 2, Clause 3, to control any words there may be in the original grant, purporting or operating to give an absolute title; and, therefore, the ordinary rule applies that the Saranjam is to ba considered a life estate, as mentioned by Lord Hobhouse in the course of his judgment. With great respect, I think that this distinction has been overlooked in the judgment in Sakharam v. Trimbak rao 1. L.R. (1920)45 Bom. 891 : 23 Bom L.R. 314 where Dosibai's case is relied upon as an authority for the view that the Saranjanadar takes ' an absolute interest in the subject-matter of the grant1'; and I adhere to my criticism of this ruling in Secretary of State v. Girjabai I.L.R(1921) . 49 Bom. 126 : 26 Bom. L.R. 1137 As pointed out by Shah Ag. C.J. in the same case (at p. 137), the Saranjam rules of 1898 do not in effect state anything more than what were ordinarily known to be the customary incidents of a Saranjam grant. So far, therefore, as Sakharam v. Trimbakrao is based on the view that a Saranjamdar like the plaintiff has an absolute and not merely a life-estate, I respectfully differ from it; and I agree with Diwan Bahadur Rao that an alienation beyond the life-time of the Saranjamdar, who makes it, is not ordinarily binding on his successors. I would, however, except oases wher8 estoppel, res judicata, limitation, or other legal impediment, may prevent this general rule applying.

7. I also agree with Diwan Bahadur Rao that, in view of the Privy Co.uncil rulings in Madhavrao Waman v. Raghunath Venkatesh I.L.R(1923) 47 Bom. 798 : 25 Bom. L R. 1006 and Nainapillai Marakayar v. Ramanathan Ohettiar I.L.R.(1923) Mad. 337 the plea of adverse possession by the defendants, who have all along held the lands as tenants, must fail; and this was conceded by respondents' pleaders. There was no precise plea of estoppel raised by the defendants nor any issue raised about it; and the mere fact that plaintiff's guardian and his predecessor-in-title have raised no prior objection to defendants remaining in possession cannot operate as an estoppel.

8. The main contention of Mr. Bakhale and Mr. Shingne for the respondents was that the Kabulayats did not constitute any real alienation of the Saranjam estate, but were given in the ordinary and proper exercise of the management of the Saranjam estate, which was for the time being in Umabai's charge. In considering this point. I revert to the Privy Council decision in Madhavrao Waman v. Raghunath Venkatesh I.L.R (1923) 47 Bom. 798 : 25 Bom. L.R 1005 It was there held, as already mentioned, that the granting by a watandar of permanent tenancy in lands of his watan would, undoubtedly be an alienation within the meaning of Section 20 of Bombay Regulation 16 of 1827. But in the same case, in dealing with the Full Bench ruling of Radhabai and Ramchandra Konher v. Anantrav Bhagvant Deshpande I.L.R(1885) . 9 Bom. 198 f.b. their lordships distinguish between the case of an alienation by a lease of a permanent tenancy to a tenant of the watan and the case of a sale and absolute assignment to a stranger to the watan. In the present instances, none of the kabulayats confers a rent free estate. The Saranjam estate continued, therefore; to get revenue from the lands, and (except in the case of the miraspatra Exhibit 16, which contains a stipulation against raising the rent) the Saranjamdar has tiie ordinary right to enhance the rents within the limits of custom: of, Prataprao Gujar v. Bayaji Namaji I.L.R. (1878) 3 Bom 141 and Vishvanath Bhikaji v. Dhondappa I.L.R. (1892)17 Bom. 475. There is no subjecting of the estate to a 'debt' or 'charge,' such as is mentioned in Saranjam rule No. 5. And, as has been pointed out in Madhavrao Hariharrao v. Anusuyabai I.L.R. (1916)40 Bom. 606 : 18 Bom. L.R. 768 this Rule 5 does not provide for freedom from all tenures, rights, incumbrances and equities created in favour of another person, such as is contained in Section 56 of the Bombay Land Revenue Code. Diwan Bahadur Rao's contention that even the grant of a lease from year to year extending beyond the Saranjamdar's life-time would not bind his successor would lead to many difficulties, and is not, in my opinion, correct. The cape-law on the subject does not (so far as I am aware) contain any autho rity for holding that a grant of mirasi rights is necessarily an alienation which will not be binding beyond the life-time of the Saranjamdar making the grant Sakharam v. Trimhak-rao Ramchandrarao I.L.R.(1920) 45 Bom. 694 is in fact an authority to the contrary, though I dissent from the main ground on which the judgment is based. No doubt in Trimbak Ramchandra v. Shekh Gulam Zilani I.L.R (1909)34 Bom. 729 : 12 Bom. L.R. 208 Scott C.J. says at p. 341: ' It was conceded that a Saraujamdar would not, except possibly for necessity, have power to create a Mirasi lease to enure beyond his life-time,' But, no such concession has been made before us and, in ray opinion, each case must stand on its own facts. A permanent lease may undoubtedly amount to a sale, or be otherwise so detrimental to the estate, as to constitute a clear case of alienation. But, on the other hand, as the passage I have just cited shows, it may be justifiable from necessity, or as a bona fide act of management benefiting the estate. Here we have to deal with agreements passed some filty-five or sixty years ago, which have been acquiesced in by plaintiff's predecessor iu-title and his own guardian during his minority. Owing to the length of time that has elapsed, it is impossible now to get evidence as to the exact circumstances in which the grants were made. Conditions then were different to what they are now; and, in view of the acquiescence already mentioned, it seems to me to be a case where the Court should presume that the grants were made for necessary purposes and. therefore, are binding on the present Saranjamdar. This is a presumption that was made as to a permanent lease granted by the manager of a temple in Chockalivgam Pillai v. Mayandi Chettiar I.L.R. (1896) Mad. 485 and approved by the Privy Council in Vidya Varuthi v. Balusami Ayyar I.L.R.(1921) Mad. 831 . Even on the view taken by Scott C.J. there is, therefore, in my opinion, legal ground for upholding the decision of the two lower Courts, I hold that they are right in deciding that the resumption and regrant of the Saranjam to plaintiff did not give him an estate freed from the defendants' rights under the documents, Exhibit 31, 18 and 16.

9. I may mention that Umabii was not of course a Saranjamdar; but obviously as de facto managing the estate on behalf of her adopted son, or while the estate was under Government attachment, she could not have higher powers than would belong to the Saranjamdar himself.

10. I would, accordingly, dismiss all three appeals with costs

Madgavkar, J.

11. I agree.

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