Krishnaji Vishram Nadkarni vs Gangaji Ambaji Metry

Norman Macleod, Kt., C.J.—The plaintiff brought this suit for pos possession of certain lands, saying that defendant No, 1 held them as occupancy tenant, but he had forfeited his right to hold them u/s 10 of the Khoti Settlement Act by passing a mortgage of the said lands. Defendants Nos. 3 and 4, who are sons of defendant No. 1, contend that their share of the property, which was ancestral, was not affected by this forfeiture. The trial Judge held that the forfeiture affected the whole property, as the mortgage was passed by the father as manager of the family during the minority of his sons.

The appellate Judge held that forfeiture u/s 10 of the Khoti Settlement Act, 1880, affected only the share of the father, which was one-third in the property, and the decree of the lower Court was modified to that extent.

The plaintiff has appealed. Section 10 of the Khoti Settlement Act is as follows :-

If the land held by a privileged occupant for failure of heirs or is forfeited on the occupant''s failing to pay the rent due in respect thereof, or if any permanent tenant resigns his land or portion of his land or does any act purporting to transfer his land or any portion thereof or any interest therein without the consent of the Khoti except in the cases provided for in Section 9 his land shall be at the disposal of the Khot as Khoti land free of all encumbrances, other than liana or charges created or existing in favour of Government.

This highly penal enactment was passed in the interest of the Khot and it must be construed strictly. We do not think that it was intended if the manager of joint family mortgaged the interest of the family in property held under Khoti tenure, that the interest of all the remaining members of the family should be forfeited.

Prior to its amendment by Bombay Act IV of 1913, Section 10 provided that:-

If the occupant did any act purporting to transfer such land or any portion thereof or any interest therein without the consent of the Khot, such land should be at the disposal of the Khot.

By the amendment, the word "his" was substituted for the word "such." That appears to be an important amendment, and shows that the legislature intended only the interest of the occupant purporting to transfer the land should be at the disposal of the Khot, if the Khot''s consent to such transfer had not been obtained.

We think, then, that the order of the appellate Judge was right. The appeal is dismissed with costs.