Case: Shivagonda Subraigonda Patil And Ors Vs. Rudragonda Bhimagonda Patil And Anr

inams mentioned in it which categories do not include the service inams. There is another Sarsubha wat 4 of 1333 fasli issued on 28-3-24 for granting permission only to nawawala wajirdars, watandars to purchase lands from pot bhaubands. These two wats Nos. 4 of 1323 and 4 of 1333, it is said, vary the absolute prohibition against alienation by permitting patelki-watan service inam to be mortgaged like other service inams, though alienation would be void if it is made in favour of any one other than bhauband and without permission even to bhaubands. It was sought to be contended before the High Court and also before us that though initially under the Bombay Hereditary Offices Act III of 1874, which was made applicable to the State of Kolhapur by notification of 1297 fasli published in the Karvir State Gazette (Kolhapur) on 3-3-1888, Section 5 which prohibited the alienation if not made with the sanction of the government, was substituted by a subsequent amendment by Bombay Act V of 1866. This amended section, however, only prohibited alienations in any form in favour of any person who was not a bhauband beyond the natural lifetime of the watan holder. This amended provision also was applied to the Kolhapur State in the same way as the main Act was applied. It is, however, urged that the Bombay Watan Act and the amendment were only applied in spirit that is according to the obvious meaning or import unlike other Acts which were applied to the Kolhapur State in their entirety without any limitation. But the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258 at p. 259), observed:"The decision of this question has been made somewhat difficult by reason of the fact that in the State of Kolhapur the Watan Act has been made applicable in spirit and there are a large number of vat-hukums issued in respect of questions relating to inami lands from time to time......In dealing with the questions pertaining to the watans the courts in Kolhapur have therefore to consider this mass of vat-hukums and apply them to the facts before them. In doing so they have also to bear in mind the fact that the spirit of the Watan Act had also been made applicable to the State. Mr. Justice Madgavkar who presided over the Supreme Court at Kolhapur for several years strongly critised the application of the Watan Act in spirit only on the ground that he was unable to understand what such an application of the spirit of the Act really meant. Either an Act in any or all of its sections, applies, or it does not observed Madgavkar, J. "To apply it in the spirit but not in the letter is beyond the power of the courts....With respect we agree with this criticism made by Mr. Justice Madgavkar".What the Full Bench was dealing with was the question whether under the wat hukums of the Kolhapur State, the sanadi inam land which was impartible reverts to the State on the death of the holder, and after an examination of all the wat hukums it expressed the view that whatever the restrictions may be upon that land which does not make the property the absolute property of the watandar, that property does not revert to the State but descends to the next heir by the rule of primogeniture.We are not concerned with that aspect of the matter but only with the question whether the alienation in favour of the plaintiffs father was valid, and we think on the construction of the various wat hukums that it was not. We agree with the Full Bench that the Bombay Hereditary Offices Act (Watan Act) did not apply to the Kolhapur State so as to override the specific directions of the wat hukums which had legal and binding force in that State. It may be observed that notification of 3-3-1888 whereby certain laws in force in what was then British India were applied in toto with modifications but the Watan Act is applied only "to go according to the obvious meaning or import". What was perhaps intended was that where there were no specific hukums the general principles of the Watan Act may be applicable. At any rate in this case as there is a specific prohibition from alienating patel-ki-watan and other similar inams we need not rely on the provisions of the Bombay Act.5. On the other question namely whether the suit is barred by limitation, we are of the view that it is not. The facts as narrated will show that in one case possession was given to the plaintiffs widow after the mortgage was redeemed.But the Collector under a misapprehension effected a forfeiture and took possession but subsequently perhaps realising the mistake, released the property but handed over possession to the wrong person namely the defendant. It is only after that, that a right would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on the ground of his title. There is no validity in the submission made on behalf of the defendant that the plaintiff was out of possession from 1928 till the date of suit - April 17, 1953.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]5. On the other question namely whether the suit is barred by limitation, we are of the view that it is not. The facts as narrated will show that in one case possession was given to the plaintiffs widow after the mortgage was redeemed.But the Collector under a misapprehension effected a forfeiture and took possession but subsequently perhaps realising the mistake, released the property but handed over possession to the wrong person namely the defendant. It is only after that, that a right would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on the ground of his title. There is no validity in the submission made on behalf of the defendant that the plaintiff was out of possession from 1928 till the date of suit - April 17,the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258   at p.the High Court of Bombay did not find it necessary to go into the question as to whether the Bombay Act or its amendment applied in letter or spirit, because according to it, the Kolhapur law was also precisely the same as the law prevailing in the Bombay Sate. We have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited; in so far as application of the Bombay Act and its amendment is concerned, we are one with Gajendragadkar, J., as he then was, who, when delivering the judgment of the Full Bench consisting of himself, Chagla, C. J. and Shah, J. as he then was, in R. Vanappa Akale v. Laxman M. Akale, 52 Bom LR 839 at p. 841 = (AIR 1951 Bom 258   at p.the Full Bench was dealing with was the question whether under the wat hukums of the Kolhapur State, the sanadi inam land which was impartible reverts to the State on the death of the holder, and after an examination of all the wat hukums it expressed the view that whatever the restrictions may be upon that land which does not make the property the absolute property of the watandar, that property does not revert to the State but descends to the next heir by the rule of primogeniture.We are not concerned with that aspect of the matter but only with the question whether the alienation in favour of the plaintiffs father was valid, and we think on the construction of the various wat hukums that it was not. We agree with the Full Bench that the Bombay Hereditary Offices Act (Watan Act) did not apply to the Kolhapur State so as to override the specific directions of the wat hukums which had legal and binding force in that State. It may be observed that notification ofwhereby certain laws in force in what was then British India were applied in toto with modifications but the Watan Act is applied only "to go according to the obvious meaning or import". What was perhaps intended was that where there were no specific hukums the general principles of the Watan Act may be applicable. At any rate in this case as there is a specific prohibition from alienatingand other similar inams we need not rely on the provisions of the Bombay Act.