1. The first question before us is, whether the lower Courts have erred in holding that the plaintiff has a right to bring the present suits. On this point there is the decision in Ahmed Babu v. Ganesh Vishnu A.I.R. 1923 Bom. 462 that the temporary attachment of the village would not affect the other rights which the Khot might have independently of the right of management. Such right of management would, of course, cover acts such as letting out waste or uncultivated lands in the village, which he can do in his capacity as a Khot : see Secretary of State v. Wasudeo  31 Bom. 456. But here we are concerned with a condition against the. alienation of certain Khotinisbat lands without his consent. In my view, such a condition would be part of the terms of the tenancy on which the lands were; held, and the Khot would still be the, landlord in spite of the Government attachment. Section 160, paragraph 1, of the Bombay Land Revenue Code shows that an attachment under that section is; mainly directed to the protection of the public revenue and is without prejudice in other respects to the rights of individuals. No doubt, under paragraph 2 of that section, the Collector is entitled to manage the lands attached and to receive all rents and profits accruing therefrom for the time being, but the words are that the Collector 'shall be entitled to' do these acts of management, not that in every case the superior holder is debarred from doing such acts.
2. In the present case, it is not alleged or proved that the Collector did, in facts, exercise the power of the Khot, which is-now in question, namely, the power of sanctioning the alienation of Khotinisbat lands. On the contrary, the Record of Eights entry, Exhibit A in appeal, seems, clearly to show that the Collector went' on the basis that no alienation required such sanction, so that presumably he never exercised this power. Again, another point to be borne in mind is that the plaintiff is, as held by the Court below, a Watandar Khot, and this gives him higher rights than he might have, if he were an ordinary Khot. In this connexion, I may refer to the remarks in Bhikaiji Ramchandra v. Nijamali Khan  8 Bom. 525 and in Ahmed v. Ganesh A.I.R. 1923 Bom. 462. Then we have the further fact that in Ganpati Gopal v. Secretary of State A.I.R. 1925 Bom. 44 the attachment had been declared to be illegal, so that the Knot's rights are really unaffected by that attachment. The case, therefore, is entirely different from the one that was under consideration in Ramchandra Narsinha Mahajan v. Collector of Ratnaqiri  7 BN.H.C. 41. Consequently, I think, there can be no doubt that the plaintiff had a right to sue; and this also covers his right to recover mesne profits of the lands, if he succeeds in his suits. It is not shown that the mesne profits of the lands that would otherwise have gone to the Khot have, in fact, been paid to the Collector or any other person.
3. The second question in the appeal is, whether the lower Courts have improperly placed the onus of proof in regard to the custom of unrestricted alienation, which is pleaded by the defendants. The question of onus is, no doubt, to some extent, immaterial in a case like this, where in fact evidence was adduced on each side. But, in any case, I do not think that any sufficient ground has been shown for saying that the lower Courts wrongly placed the onus upon the defendants to prove the custom alleged. This follows from judicial authority, which practically amounts to establishing a presumption that the Khot's permission to an alienation of Khotinisbat lands is necessary in any Khoti village in the Kolaba District In Hari v. Gangadhar  18 Bom. L.R. 446 this question of onus was in fact argued; but as it is not referred to in the judgment of Scott, C.J., the contention that the burden of proof should have been put upon the Khot was presumably vetoed by the Court. I think this is supported by the wording of the proviso to Section 38 of Bombay Act I of 1865, which seems to contemplate that the general rule is that a tenant of the Khot has no-unrestricted right of alienation; and the corresponding Section 9 of Bombay Act I of 1880 clearly did put the burden of proof on the tenant.
4. However that may be, the decision in Gopal Anant v. Bhagirthi : AIR1918Bom152 undoubtedly adopted the view that throughout the Kolaba District a Khot tenant could not transfer his holding without the permission of the Khot; and in regard to Khotinisbat lands, with which we are now concerned, that ruling in effect lays down the presumption I have mentioned. It is, of course, still open to a tenant to prove a contrary custom in regard to his particular village, unless, of course, it has already been decided that. no such custom exists in the village. But;, I think, in view of the rulings just referred to, the burden of proof undoubtedly. Rests upon him to show that an unrestricted right of alienation exists in his village; and according teethe proviso to Section 38 of the Act of 1865 he would have to show that it also existed prior to 1865. On the other hand, as has been laid down in Abu Yesu v. Hari Keshav  P.J. 314 he may be able to satisfy this requirement by evidence of more recent transactions, from which an inference that the custom existed from prior to 1865 will arise. But in the case of this particular village (Maluk) we have the fact that it has already been held in Ganpati Gopal v. Secretary of State A.I.R. 1925 Bom. 44 that
it has been established by custom that al permanent tenant of Khoti-nisbat land cannotL transfer without the consent of the Khot.
5. No doubt, that was a suit between the Khot and Government, but, in the absence of strong evidence to show that the finding I have just mentioned is erroneous, it is one which must be given due weight in the present case. Accordingly, I think, the lower Courts have not erred in law in their consideration of this question of custom. On the merits also their finding seems clearly correct. The evidence adduced in favour of a custom of unrestricted alienation is very meagre; and the mere fact that there is a Record of Eights entry in support of it, made during the attachment of the village, is of very little weight; for, as was remarked in Gopal v. Bhagirthi : AIR1918Bom152 this record was not made until after the commencement of the litigation between Government and the Khot.
6. The third point that we have to consider is Mr. Desai's contention that the transfer of the occupancy in this case does not result in any forfeiture, so as to entitle the Khot to sue in ejectment, as he does in the present suit. It is true that the word 'forfeiture' is not the proper word to use in this connexion, as has already been mentioned in Hari v. Gangadhar  18 Bom. L.R. 446. What in effect has been held in the decided cases on this point is that, where there is an unauthorized transfer followed by the giving up of possession by the tenant to the alienee, it amounts to an abandonment of the land by the tenant. That is the basis of the ruling of the Court in Nargardas Sobhagyadas v. Ganu Balu  P.J. 107. The converse case of such a transfer not being followed by the giving up of possession is dealt with in Nagardas Sobhaggadas v. Hari Damji Shet  P.J. 133.
7. The discussion of the main cases on the point, in Yesa v. Sakharam  30 Bom. 290 shows this to be the basis of the ruling. Now, I think, there can be no doubt that this theory of abandonment does go beyond the English law in regard to surrender, as well as the corresponding law contained in Clauses (e) and (f) of Section 111 of the Transfer of Property Act. Apart from this particular class of cases, I can find no authority for saying that an implied surrender covers a case like the present. On the contrary, Section 115 of the Transfer of Property Act safeguards an under-lease in a case of this kind. On the other hand, that section does not apply to agricultural leases in the absence of a Government Notification such as is referred to in Section 117. Oases of un-authorized alienation are generally covered by an express condition in the lease giving a right of re-entry on breach of that condition : compare the provisions of Clause (g) of Section 111 of the Transfer of Property Act. On the other hand, we have the fact that there is judicial authority for applying this theory of abandonment to Khoti villages in the Kolaba district adopting the Bengal view of 1871 in Narendra Narayan v. Ishan Chandra  13 B.L.R. 274 at any rate from the year 1891; and we have also the fact that the law, so far as Khoti villages in the Ratnagiri district are concerned, has been amended so as to give clear effect to the view that if a tenant of Khotinisbat lands unauthorizedly alienates his holding, the Khot has a right to re-enter.
8. Accordingly, if a different view is taken in regard to Khoti-nisbat lands in the Kolaba district, it is very probable that legislation would be enacted in order to bring the law of that District in harmony with the law in the Ratnagiri district. In these circumstances, it seems to me that the principle of stare decisis applies in favour of our continuing the view that has already been taken. As has been laid down in West Ham Union v. Edmonton Union  A.C. 1:
great importance is to be attached to old authorities, on the strength of which many transactions may have been adjusted and rights determined. But where they are plainly wrong and especially where the subsequent course of judicial decisions has disclosed weakness in the reasoning on which they were based, and practical injustice in the consequences that must flow from them, I consider it is the duty of this House (of Lords) to overrule them, if it has not lost the right to do so by itself expressly affirming them.
9. In the present case, I do not think that any practical injustice results from this theory of 'abandonment,' having regard to the law in the analogous case of Khoti villages in the Ratnagiri district. Mr. Dasai strongly relied on Ramchandra v. Dattatraya  31 Bom. 257. Bat, if the judgment of Sir Lawrence Jenkins in that case is carefully considered, it will be seen that, although he points out that a transfer of land cannot ordinarily be said to be a resignation of the land, the decision really turns on certain provisions of the Khoti Settlement Act of 1880, which showed that, if such a transfer was deemed to be a resignation, very inconvenient consequences would ensue, and therefore he concluded that that could not be the meaning of the Act. That does not apply to a case arising under Section 38 of Bombay Act I of 1865.
10. Accordingly, I think that there is no sufficient ground for our interference in Second appeal, and I would dismiss both the appeals with costs.
11. The respective defendant-appellants in each of these two appeals obtained, in the one case by mortgage, and in the other case by sale, possession of Khoti-nisbat lands in the village of Maluk in the Mangaon taluka of the Kolaha district from the other defendants in each suit, who were the occupancy tenants, without the permission of Ganpati, the watandar Khot of that village, who is the plaintiff-respondent in both the suits. The latter claimed to forfeit the lands and to recover possession. He succeeded in both the suits in both the lower Courts. The defendant in each suit appeals.
12. The main question in both the appeals is whether in this particular village the occupancy tenant of Khoti-nisbat lands can mortgage with possession or sell the lands without the consent of the Khot, and, if not, whether the Khot can forfeit the lands. In the trial Court the issue framed was as follows:
Does the plaintiff prove that there is no custom in the village authorising the Khoti kuls in that village to alienate their khoti lands without the permission of the Khot?
throwing the onus on the plaintiff-respondent, the Khot. In appeal the District Court held that, according to the provisions of Section 38 of Bombay Act I of 1865, 'a Khoti tenant does not possess the right to transfer his occupancy right without the previous permission of the Khot.' Both the Courts held that the custom of transfer without the Khot's permission was not proved. The appellants have also raised two other contentions. It is admitted that, in 1915, the Government presented, for the signature of the respondent Khot, a new form of kabulayat, which the Khot declined to accept, and the village was, therefore, placed under attachment by Government. The illegality of this decision was decided in Ganpati Gopal v. Secretary of State A.I.R. 1925 Bom. 44. The sale and the mortgage in these two suits, respectively, were effected, and the suits were also brought during the period of attachment of the village by Government, The appellants, therefore, contended, firstly, that the Khot's permission was not necessary, at least during the attachment, and, secondly, that the suits being brought while the village was attached, the plaintiff-respondent Khot had no right to sue on the dates of institution. Both these contentions were disallowed by the lower Courts which decreed the suits.
13. On the question of custom and its onus, the lower appellate Court was, in our, opinion, wrong in holding that Section 38 of Act I of 1865 laid down that a Khoti tenant did possess the right to transfer without the permission of the Khot. That section runs as follows:
It shall also be competent to such officer, with the sanction of the Governor in Council, to fix the demands of the Khot on the tenant at the time of the general survey of a district, and the terms thus fixed shall hold good for the period for which the settlement may be sanctioned.
But this limitation of demand on the tenant shall not confer on him any right of transfer by sale, mortgage or otherwise, where such did not exist before, and shall not affect the right of the Khot to the reversion of all lands resigned by his tenant during the currency of the general; lease.
14. It will be seen that the first part of the section, relates to the fixing of the Khot's demand on the tenant for the period of the settlement and has no bearing on the present question. The second part, which apparently the lower appellate Court bad in its mind, merely; enacts that the right now in question, namely, the necessity of the Khot's consent or otherwise to a transfer by sale, mortgage, etc., was not affected by the passing of this Act. In other words, it left the question of these rights open in each case, and did not place the onus upon one side or the other. In the present case, the onus is not a matter of very great importance, as each side has adduced evidence on the alleged custom.
15. It is argued by Mr. Desai, for the appellant, that a mortgage or sale is not 'resignation' by giving up the lands, and does not entail forfeiture to the Khot. The argument is based upon Sections 9 and 10 of the Khoti Settlement Act Bom. Act I of 1880, as they originally stood until the decision in Ramchandra v. Dattatraya  31 Bom. 267 and subsequent amendments of these sections by Bombay Act VIII of 1912. Bombay Act I of 1880, however, applies only to the Ratnagiri District and not to the Kolaba District to which the present appeals relate. Although the words 'resigned by his tenants' occur in the concluding part of Section 38 of Bombay Act I of 1865, the earlier part expressly limits the tenant's right to transfer by sale or mortgage to the right existing at the date of the enactment of 1865. The question, therefore, remains one of the particular rights of the occupancy tenants in the village of Maluk. The legislature did not add words in Bombay Act I of 1865 similar to the amendment of Bombay Act I of 1880 by Act VIII of 1912. The question of the Khot's right to forfeit in the Kolaba District was considered by this Court in a series of oases such as Nagardas v. Hari Damji  P.J. 107 Aba bin Tesu v. Hari Keshav  P.J. 314 Hari v. Cangadhar  18 Bom. L.R. 446 and Gopal v. Bhagirthi : AIR1918Bom152 . The Ratnagiri decisions, such as Yesa bin Rama v. Sakharam Gopal  30 Bom. 290 and Damodar v. Vasudeo  44 Bom. 267 do not avail the present appellants. The decisions in Hari v. Gangadhar  18 Bom. L.R. 446 and Gopal v. Bhagirthi : AIR1918Bom152 both purported to
hold that a Khoti tenant in the Kolaba District cannot transfer his occupancy holding without the permission of the Khot, and, if he does so, the Khot is entitled to re-enter:
to the prejudice of the transferee; and Batchelor, Acting C.J., was of opinion in the latter case that the decision in the former case applies to the Kolaba District as a whole and is not restricted to the particular village of Pen from which the litigation in that case came.
16. On the other hand, in the latest Kolaba decision, referred to above, in which the present respondent was a plaintiff, Ganpati Gopal v. Secretary of State A.I.R. 1925 Bom. 44 it was held that:
The Khoti tenure in the Kolaba District is a customary tenure dating back to at least the 18th century, its incidents, as prescribed by custom, being nowhere denned, and in fact differing in different villages.
17. In considering the transactions given as evidence of custom, the appellate Court's attention was, perhaps, not directed to the following observations in Aba v. Hari Keshav  P.J. 314:
Although Section 38 of Act I of 1865 did not confer any right of transfer where such did not exist before, it did not operate to take away any right that had been acquired. It did not restrict the proof of the right to transactions prior to 1865-06, as the Khoti Act of 1880 has done. Such being the case, the point should be not whether the right existed prior to the survey of 1865, but whether it existed at present as to the particular land in question; for it is as to the present condition of the tenure that the Court has to come to a determination; and it would be open to the tenant claiming the right to prove its existence by evidence of transactions continuing down to the present time, for from that evidence the condition of the past can be inferred.
18. The present suit was instituted in 1921. Of the nine transfers without the Khot's permission, on which the appellants relied, two were compulsory sales in execution in Madat suits by the Khot, five were during attachment and after 1915. There remained only two, one of 1889 and the other of 1906, hardly sufficient to prove the custom set up for the appellants. The entry in the record of rights is recent and during attachment. The respondent proves one instance of consent. The number of instance on either side is, therefore, meagre. But, in view of the findings of both the Courts in the case against the custom as set up by the appellants, and of the previous decisions of this Court in Hari v. Gangadhar  18 Bom. L.R. 446 and Gopal v. Bhagirathi : AIR1918Bom152 the result, in my opinion, must go against the appellants.
19. On the other two points for the appellants, it need only be said that, as the attachment has been declared to be illegal, the Khot's rights could not be affected thereby. It is not shown, that there was any difficulty by reason of the attachment in obtaining his permission or that the permission of the Collector or the officer designated by the Collector to manage the village was sought. The liability for the permission remained and it was not discharged, and the suit is not incompetent on the date of institution by reason of an illegal attachment.
20. In the result, both the appeals fail and must be dismissed with costs.