Tungabai Gopal Desai vs Krishnaji Ramchandra Deshpande

Norman Macleod, C.J.—The plaintiff sued to recover from defendants Nos. 1 to 5 and 9 and 10 by equitable partition her one-third share in the properties mentioned in Schedules A, B and D of the plaint or one-third share in the Linda in Schedule C even if the property in A was Deshpandegiri Vatan and for mesne profits. The properties in A, B and D originally belonged to one Gurnath Dattatraya Deshpande who died leaving three sons, Dattu, Shripad and Bhimappa. Shripad was the last owner as survivor and he died in January 1903 without issue, but leaving three sisters who filed three suits for partition. It was further urged by the plaintiff that though the property in Schedule C was Vatan, the occupancy rights were not Vatan as they existed before the grant of the Inam. The defence was that the lands were Vatan and so the plaintiff was not entitled to succeed. One decree was passed in the three suits, The trial Court held that the occupancy rights in the lands in Schedules C and D with certain exceptions were not Vatan, The plaintiff was also held entitled to certain sites in Schedule A. The lower appellate Court held that the plaintiff was not the owner of the occupancy rights in the lands mentioned in Schedules C and D with the exceptions mentioned in the decree The plaintiff has appealed and the only question argued in the appeal was whether the lands in the village of Gudgudi were ordinary Inam or Vatan.

The case has been unduly complicated by the view taken by the trial Court that the rights of the plaintiff''s ancestors in the village were partly Inam partly Vatan, that the original grant was a grant of the royal share of the revenue, and any occupancy rights they possessed were acquired afterwards, so that they could not be considered as subject to the rules of succession to Vatan property. The learned appellate Judge seemed to think that this was a possible inference, but came to the conclusion that the grant included extensive proprietary rights and was a grant of the soil in that sense subject to rights already existing. Now if we concede that whatever rights the plaintiff''s family now possess in the village arose from the original grant, it follows that those rights are either Inam or Vatan according to the purpose for which that grant was made. If, however, only the royal share of the revenue was granted for Vatan services it would not be impossible for the Vatan family to have acquired afterwards proprietary rights in the village lands which would be their personal property and would descend according to the rules of Hindu law. But it has not been suggested in this case that the occupancy rights in the village have been acquired apart from the original grant or the Sanad issued in 1901.

Exhibit 112 contains a copy of the original grant, from which it appears that the village of Gudgudi was given as Palkhi Inam to the plaintiff''s ancestors who were admittedly Deshpande Vatandars.

The village was described as having fallen fallow, the revenue being 150 Hons. 600 Hons were to be paid as premium while the Vasul was to be paid at stated times. Judged by the rules laid down by the decisions of the British Courts, it might be said that this was only a grant of the revenue, but I quite agree with the learned appellate Judge that those rules have been laid down without considering from the lessons of history what were the actual conditions when grants going back 250 years, as this one does, were made. To quote from the judgment, they assume a stabilised condition of the village granted where all cultivable land is occupied by cultivator who are entitled to remain on the soil so long as they pay a definite amount out of the produce or a definite share of the produce to Government. In such a case nothing would be left to Government to give away except what it received itself as revenue. But we cannot assume that those conditions existed in the seventeenth century. The grantee may or may not have recognized existing rights but what those rights may have been it is impossible for us to say. That occupancy rights were recognized by Governments previous to British Rule may be admitted, but I very much doubt whether those Governments in making grants considered that such grants were anything more than grants of the rights which existed in Government at the time they were made. However that may be, it is clear that the village was granted to the Vatandars to pay their Palkhi expenses and was therefore an appanage of the Vatan. Under the Gordon Settlement which dealt with service Inams, the village was classified as Deshpande Vatan and the Sanad, which was eventually issued in 1901, after reciting that certain lauds and cash allowances were entered in he Government accounts for the years 1863-84 as held in service tenure, declared that the said lauds and cash allowances should be continued hereditarily by the British Government on certain conditions. No distinction was made between the right to levy the assessment and the right to occupy the land so that it cannot be said that only the former was settled to be Vatan by the Sanad.

A very similar question arose in Amrit v. Hari I.L.R (1919) Bom. 237: 22 Bom. L.R. 275. The original grant was made in 1734 by a Maratha Ruler or maintenance in return for service. In 1884 the grantee accepted a settlement on the lines of the Gordon Settlement and the Sanad issued was in the same terms as the Sanad in this case. Shah J. said (p. 249): "In the absence of any clear proof that the occupancy right in the Survey Number in suit was vested in the plaintiff''s ancestor independently of the grant and that the land in suit was outside the lands dealt with in the settlement of 1884. I think it must be held to be Vatan property like the village itself ...Thus where the whole village is mentioned in a Sanad evidencing a settlement u/s 15 of the Hereditary Offices Act it is for the party alleging that a particular Survey Number of that village is outside the scope of the settlement to prove it." Even in the case of Inams, the decisions of this Court that in the absence of evidence as to the terms of an Inam grant made by a Native Ruler before British Rule, there is a presumption of law that the grant was only of the royal revenue from the land and not of the soil may require to be reconsidered since the decision of the Privy Council in (1918) ILR 41 1012 (Privy Council) Their Lordships said at p. 218: " In their Lordships opinion there is no such presumption of law. But a grant of a village by or on behalf of the Crown under the British Rule is in law to be presumed to be subject to such rights of occupancy, if any, as the cultivators at the time of the grant may have had."

This judgment was referred to with approval in (1919) L.R. 46 I.A. 123 (Privy Council) .

I think the decision of the lower Court was right and all the appeals must be dismissed with costs.

Shah, J.—The principal point argued in this appeal is whether the lands in the village of Gudgudi held by the Deshpandes is an ordinary Inam or part of their Vatan property. If it be an ordinary Inam, whatever the nature of the grant, whether the grant be of the soil or of the royal share of the revenue, it would go to the heirs of the last holder according to the Hindu law. If it be a part of the Vatan property the females would be postponed to the male members of the family under Bombay Act V of 1886.

It is urged on behalf of the original plaintiff that the original grant was made in favour of the defendants'' ancestors, who were the Deshpandes, by the then King of Bijapur about the end of the seventeenth century, and that it was given in Inam for Palkhi allowance and not as part of the remuneration of the office which the Deshpandes held. On the other hand it is an admitted fact that the whole of this Deshpandegiri Vatan was settled on the lines of the Gordon Settlement and the usual Sanad was issued in 1901 in which the lands in question are referred to as part of the Deshpandegiri Vatan.

Both the lower Courts have found that it is part of the Vatan property and not an ordinary Inam. This finding is amply supported by the terms of the Sanad and by the fact that at least under the British Rule the grunt has been treated by the parties and the Government as part of the Vatan property and as a part of the remuneration for services. It is no doubt possible that a Palkhi allowance, which was made in favour of the original grantee by the Bijapur authorities, might not necessarily be part of the remuneration of the office held by the grantee. But it is also possible that it might be an appanage of the office and as such would go with the office. The terms of the original grant so far as they are available do not throw any light on the point and the way in which the parties and the Government had treated it is indicated by the Sanad. This contention of the plaintiff must be disallowed.

It is further urged that even in the case of Vatans the distinction must be made between the occupancy rights and the Inam rights, which would be limited to the royal share of the revenue. In view of the observations relating to Vatan property in Amrit v. Hari (1919) L.R. 44 Bom. 237: 22 Bom. L.R. 275 Mr. Kelkar did not press this point seriously. It is clear on the terms of the Sanad that the grant must be taken to be a grant of the soil and not merely of the royal share of the revenue as was held in Amrit v. Hari on the terms of a similar Sanad. It is true that the terms of the original grant by the Bijapur Kings in this case do not clearly indicate a grant of the soil, but merely a grant of the royal share of the revenue. The usual expression (jal, taru, etc.) indicating a grant of the soil is not to be found: and if the matter depended entirely upon the terms of that grant there would be some difficulty in holding that it was anything more than a grant of the royal share of the revenue. So far this case differs from the case of Amrit v. Hari. But in determining the nature of the Vatan Inam I think that regard should be had to the terms of the Sanad and the nature of the settlement under which the Sanad was issued and on that point this case is similar to the case of Amrit v. Hari. I do not think that any real basis is made out for making such a distinction in the case of this Vatan, and for holding that it is the royal share of the revenue and not the land or the occupancy right therein that forms part of the Vatan.

The result is that the appeal must be dismissed with costs. The other companion appeals also will bo dismissed with costs.

I desire to make it clear that in taking this view as to the nature of the Vatan in this case, I do not mean to doubt in any sense the correctness of the view accepted in this Presidency as to the Inams and other similar grants being treated as implying a grant of the royal share of the revenue and not necessarily of the soil unless words suitable to indicate a grant of the soil are used in the document evidencing the grant. I have nothing to add to what I have stated in the last but one paragraph of my judgment in Amrit v. Hari as regards the effect of certain observations in (1918) ILR 41 1012 (Privy Council) on the view so far accepted in this Presidency beyond this that the ratio decidendi in the recent case of 25 CWN 818 (Privy Council) appears to me to support that view.