N.H. Bhatt, J.
1. This is an interesting petition, raising the question of interpretation of the grant, Annexure B. The petitioners are collaterals of one Hamirsinhji, who died on 8-1-75 and who was the brother of the onetime Ruler of the Idcr State. The Ruler had conferred on said Hamisinhji the rights of two villages, Techava and Acharal, as per his order No. 14 dated 11-3-48. Said Hamirsinhji was carrying on operations of extracting China clay from the sub-soil of those two villages and he had entered into an agreement of lease with one firm M/s. Ambee India Private Ltd. On the demise of said Hamirsinhji, the present petitioners, who are his near agnates claimed to have inherited all the rights, which deceased Hamirsinhji had. The Collector, however, held by his impugned order, Annexure D, that despite the recognition of the rights of deceased Hamirsinhji vis-a-vis the State by the Division Bench of this Court in the reported judgment of M/s. Ambee India Pvt. Ltd. v. Rao Raja Hamirsinhji A.I.R. 1972 Gujarat 137, (which matter is lying on the anvil of the Supreme Court in the appeal filed by the State of Gujarat and, therefore, a subjudice matter). The present petitioners claiming not as the lineal descendants, but as agnates of late Hamirsinhji presumably had. The present petitioners have, therefore, moved this Court for a declaration of their rights of inheritance under the principles laid down under the Hindu Succession Act on intestate succession.
2. The Collector interpreted the grant, Annexure B, which was translated by the Division Bench in that M/s. Ambee India Pvt. Ltd. (Supra) against the petitioners. The said translation is reproduced below:
Parvana (Order) No. 14.
Maharaja Dhiraj Shri Maharajaji Himatsinghji Saheb bahadur Samsthan Idar Hamirsinhji by Hazur Order No. 2356/- 25-2-1948.
I have given you by way of gift for maintenance (Jivarak) the two villages Techava and Achral. You may enjoy from generation to generation income of the suit villages accruing every year including-Padya Pan Sudh-i.e. all income right from the smallest thing to everything. And you shall continue to serve the State with 'Shyam Dhharma'. The jurisdiction of the Darbar was to continue for these two villages in respect of issuing commands or order (Aan) taxation (Dan) and civil and criminal jurisdiction. Dated 11th March 1948 HimatsinghiMaharaja, Samsthan Idar.
3. The Division Bench of this Court interpreted the said parvana or order to mean an absolute grant to Hamirsinhji. In the course of the judgment, the Division Bench has observed as follows:
Therefore, in the conveyancing context the aforesaid term would mean that all income which accured every year from the two villages including that from the smallest thing and convering everything, was in terms granted. It is true that the expression 'Jivarak' has been used which means maintenance but it is equally certain that the grant is not a lifetime grant only to the plaintiff or one creating a life interest only. The purpose may be of maintenance by the operative portion of the grant in terms states at the outset that both the villages were given to the plaintiff by way of gift. To make the whole gift complete, it was further added that all kinds of income arising from the villages of whatever kind was to be enjoyed by the plaintiff and his heirs from generation to generation. The only reservation which was made by the sovereign ruler was in the last Clause by indicating that he was creating a non-jurisdictional estate by reserving to him all sovereign powers of issuing all sovereign orders, taxation and civil and criminal jurisdiction. Therefore, reservation makes it amply clear that a full non-jurisdiction, estate was conferred on the plaintiff. The grant was not merely of the annual produce of the soil of these two villages but of the soil itself. The grant was not of any lessor interest by carving out something but a complete grant conferring full proprietorship in the soil of the two villages by in terms stating that it was a gift from the sovereign. There was no reservation as regards any kind of revenue which was to accure from the villages, whether agricultural or other revenue from the trees, minerals or anythings which was capable of yielding such a recurring annual income, but all income of whatever description was in terms granted. In the face of such a categorical sovereign grant, where not only the proprietorship of the village soil is transferred but where by express words income of all kind is transferred to the plaintiff, there can hardly be any doubt in the present case that the sovereign did not intend to pass full ownership to their plaintiff in the soil of these two villages, including sub-soil rights.
4. The Collector, however, interpreted the word 'Vansha Parmpara' occurring in Annexure B as the words importing restriction on inheritances. According to the Collector, the word 'Vansh' means lineal descendancy and would by necessary implication exclude the branch lines. I am called upon to decide whether the word 'Vansh' occurring in Annexure B is the word of restrictive import or having the import in some other manner. It has been decided by a catena of authorities that when a grant is made to a person absolutely with the addition of the word descendants of his, the latter words are words not of restriction but are the words conveying absolute gift or bequest. The word 'Vansh-Parampara' occurring in Annexure D does not and cannot mean to limit the inheritance only to lineal descendants and to exclude the passing of the property to agnates. It is customary for the people to use the word 'Vansh Parampar' or he and his descendants to indicate the absolute character of gift. These words are never understood to suggest any limitation on the possibility or mode of inheritance. The division Bench itself has construed these words in the company of other words and even though the matter is pending in the appeal before the Supreme Court, I feel bound to respectfully follow the view of the Division Bench of this Court, which still holds the field, of course subject to the possibility of its being dissented from and, therefore, over-ruled by the Supreme Court. As long as that judgment is not annulled, I sitting as a Single Judge am bound to respect the interpretation placed by the Division Bench.
5. Mr. M.B. Shah, the learned Assistant Government Pleader appearing for the respondents with appreciable vehemence urged that the words 'Jivarak' with which the operative portion of the grant Annexure B commenced was certainly indicative of the limited duration of the operation of the grant. The word 'Jivarak' also had come to be considered by the Division Bench, it is clear that according to the Division Bench 'it is equally certain that the grant is not a lifetime grant only to the plaintiff...the purpose may be maintenance but the operative portion of the grant in terms states at the outset that both the villages were given to the plaintiff by way of gift.' In other words, the Division Bench has ruled that the maintenance furnished an occasion to the Ruler to make the absolute gift and it was not the foundation of the gift as we some times explain the relevant phrases. Reference was solicited to Clause (ix) of Sub-section (1) of Section 2 of the Bombay Merged Territories and Areas Jagir Abolition Act by the learned Assistant Government Pleader Mr. Shah. The Division Bench in this connection has observed as follows:
The present jagir is not a Jiwai Jagir as such which would fall in the definition of Section 2(1)(ix), which is held by the holder thereof for the purpose of his maintenance. The purpose could not cut do the operative terms of grant itself which expressly state that the grant was to operate as a full gift.
Mr. Shah in this connection submitted that the question before the Division Bench of this Court was whether the sub-soil was also gifted alone with the soil. It is no doubt true that it was so, but in order to decide that question, the Division Bench necessarily examined the question of the character of the grant by special reference to the words 'Jivarak' and 'Vansh Parampara'. It is, therefore, too late in the day for the respondent now to urge that the grant Annexure B should be construed differently because of the different context in which the present dispute has arisen.
6. Mr. Shah had also invited my attention to some judgments. They are: (1) 1967 Section 346, (2) 1924 Patna 721 ; (3) 21 Bombay Law Reporter 496 and (4) the recent judgment of the Division Bench of this Court, consisting of S.H. Sheth & G.T. Nanavati JJ. in the special civil application No. 1954 of 1974 decided on 20-7-79. I have carefully gone through those judgments, but the very documents between the very parties or their predecessor-in-title has been the subject matter of elaborate discussion and a clinching finding at the hands of the Division Bench of this Court and so long as it is holding the field, it is not possible for me to, strike departure and interpret the document differently.
Mr. Shah then urged that I must at the most quash the order, Annexure D, and remand the matter to the Collector, who may re-examine the case in the light of the various submissions, which were made by Mr. Shah before me and also to enable the State to decide the question in the light of the custom, similar to the one which was noted by the Privy Council in the case of Pratapsingh Shivsing v. Thakorshri Agarsinghji, Raisinghji 21 B.L.R. 496 (Supra). It is difficult for me to accede to that request.
7. The result is that the petition is required to be allowed. The impugned older, Annexure D, is set aside and it is held that the petitioners are entitled to enjoy the rights granted under the said Paravana, Annexure B, in favour of late Hamirsinhji and the respondents are required to be restrained from disturbing their possession and enjoyment of rights in respect of the lands in question. Rule is accordingly made absolute with no order as to costs.
It goes without saying that if the Supreme Court per chance allows the state's appeal, the petitioners will forfeit the benefit of the judgment.