Broomfield, J. -
(1.) THE suit from which this appeal arises was brought by respondent No.1 claiming as the adopted son of one Anandrao who died in 1912, to establish his right to the property of his adoptive father in the hands of the defendants. Anandrao died without issue but leaving three widows, the eldest of whom, Krishnabai adopted the plaintiff on November 4, 1924. Defendants Nos. 1 and 2 are the other two widows. Defendant No.3 is the brother of defendant No.1 and is in possession of some of the property sold to him by her in 1920. THE other defendants are tenants in occupation of some of the lands. THE lands in suit are situated in the villages of Chikurde and Peth. THEy were formerly Deshmukhi watan, but the watan lapsed to Government in 1923. THE only contesting defendants were Nos. 1 and 3. At the trial of the suit they made various allegations, denying the adoption, alleging that Krishnabai had been abandoned by her husband, that she had been prohibited from making any adoption, that the sale by defendant No.1 to defendant No.3 was for legal necessity, and so on. But the trial Court has decided all these issues of fact against the defendants, and their contentions in that respect are no longer persisted in.
(2.) IN order to understand the points raised by the learned counsel on behalf of the defendants in this appeal, it is necessary to state some further facts. The whole of the Chikurde watan originally belonged to Vithalrao Deshmukh, who had four sons, Ganpatrao, Nilkanthrao, Anandrao and Shankarrao. The estate was by custom impartible, and the rule of primogeniture applied to it. IN the year 1894 a suit was brought by the younger sons Nilkanth and Anandrao, (Shankar being then dead), against their father and elder brother to obtain a share of the lands for their maintenance. The dispute was referred to arbitration and the award was made a decree of Court on March 15, 1894. I shall refer to the terms of this decree (exhibit 46) later on. At present I merely say that a specific share consisting of lands in the villages of Chikurde and Peth was assigned to Anandrao. Anandrao was in possession and enjoyment of these lands until his death on June 6, 1912. During his lifetime he was entered in the Record of Rights (exhibit 207) as occupant of the land, the description of the nature of his right being "hisedar (sharer) by partition. " After his death the name of Firan-gojirao, the son of Nilkanthrao, was entered in his place. The entry in column 10 as to the nature of his right was " By heirship to Anandrao who was the sharer inamdar according to the decree in Civil Suit No.137 of 1894. " Firan-gojirao died in 1919. On September 23, 1921, Government made an order declaring his daughter Bhimabai to be entitled to succeed to him, and her name was entered in the Record of Rights in place of that of her father. By Government Resolution dated October 11, 1923, that order was cancelled and the watan was declared to have lapsed. The Government Resolution is exhibit 217, IN spite of this Resolution Bhimabai continued to be shown in the Record of Rights in column 9 as occupant. IN column 10 there was a reference to the Government Resolution and it was noted that the lands had been ''resumed " and had been " omitted from mam. " IN the appropriate column in the Register the full assessment was shown as leviable on the lands. As 4 have already mentioned, the plaintiff was adopted by Krishnabai on November 4, 1924. IN spite of the entries in the Record of Rights, to which I have referred, the evidence shows that Anandrao's widows continued to be in de facto enjoyment of the lands. Firangoji collected the rent from the tenants and paid it to the widows. After his death defendant No.3, to whom some of the lands were sold by defendant No.1 in 1920, appears to have managed the rest of the estate on behalf of the widows and paid the income over to them. Bhimabai's estate is being managed by the Court of Wards. But the evidence of exhibit 92, who is a clerk to the Collector and Court of Wards, shows that the income of the lands has been and still is paid to the widows of Anandrao and not to Bhimabai. His evidence is important and some of his statements must be referred to. He says: The practical effect of the lapse was got ascertained by the Collector from Government and from them it was learnt that the property that was subject of watan inam was converted into khalsa and raitawa property. It was, therefore, made subject to payment of full assessment. I have seen the award of 1894. The lands thereby allotted to Anandrao have been allowed to be retained in possession of the three widows of Anandrao. The khata of those lands too stands in Bhimabai's name. Defendant No.3 pays the local fund cess in respect of the lands allotted to Anandrao by the said award, to the Court of Wards on behalf of the three widows. The Court of Wards in its turn pays that amount to Government on behalf of the ward. Further on the witness says: The profit of suit lands is not being received and credited by the Court of Wards and on behalf of the ward. The Court of Wards made no change in the possession of suit lands that were allotted to Anandrao by the award of 1894, nor in the possession allowed to be held by his widows after his death. IN cross-examination he said : There is no express order by the Collector or by Government confirming the possession of suit lands with Anandrao's widows. The Collector has allowed the suit lands to remain with Anandrao's widows as per the award. The Collector supposed the widows as owners of suit property as per the award.
The main contentions of the learned counsel for the appellants in this appeal are these: (1) The award decree was not an absolute grant to Anandrao and his heirs but a grant for the maintenance of himself and his descendants only, giving no right of inheritance to his widows. On his death without issue the estate lapsed to the only male member of the family then surviving, Firangojirao, the son of Nilkanth. Firangojirao became the owner and was succeeded by his daughter Bhimabai. (2) In 1923 Government resumed the watan, and the rights of Anandrao's family, even assuming that any rights remained, were then extinguished. The subsequent adoption of a son to Anandrao, therefore, gave him no title to the suit property.
For his first contention Mr. Jayakar relies on the construction of the award decree (exhibit 46 ). This begins by reciting that the income of the properties is impartible and that by the custom of the family the law of primogeniture applies to it. It then states that the plaintiffs Nilkanth and Anandrao are to be given some of the income for the maintenance of themselves and their descendants (here the word used is santati), and a land for building a house for residence. Then follows a description of the lands allotted to Nilkanthrao, at the end of which it is stated: "he should accept the same and the permanent vahiwat should continue with him and his heirs. " (Here the word used is waras ). Then the lands allotted to Anandrao are specified, and there is a similar statement in his case that he should accept the same and the permanent vahiwat should continue with him and his heirs. It was provided that the judi on the lands given to Nilkanthrao and Anandrao was. to be paid by the defendants, but they were to pay the local fund cess. Then the award decree recites that the remaining immoveable and moveable properties, the cultivated and uncultivated lands, the rocky lands, the hilly forest, the Samsthan Vada, all the fallow land in the Gavthan, all the servants kept for service by the grant ' of lands from the Samsthan, the lands which are with them, all the income of the lands for houses and open spaces, the rights of taking service from the village officers and Balutes, all the Haks which are on the record and which are continued by vahiwat, and so on-were to remain with Ganpatrao the eldest son. He and his father were to do vahiwat of all the property excepting that which was given to the plaintiffs in the suit, and it was all to continue permanently with Ganpatrao and his heirs. It was also provided that if defendant No.1, i. e. the father Vithalrao, assigned his right to Ganpatrao, all the ownership (malki) would pass to Ganpatrao from that time. Then there is an important concluding paragraph: It is decided as aforesaid to give the lands to both the plaintiffs. The right of cultivating and producing crops on these lands is with the plaintiffs and their heirs (waras ). The plaintiffs and their heirs are to be maintained on that income. The liability for that does not lie in any way on the property of the defendants. Defendants are the owners (malak) and vahiwatdars of the Samsthan. Therefore, there is no risk attaching to the plaintiffs for the debts due to or due from the Samsthan.
(3.) I think it is obvious that this decree does make a clear distinction between the rights accorded to the two younger sons and those accorded to the eldest son. The words malak and malaki which are used in respect of the latter are nowhere used in respect of Nilkanthrao or Anandrao. I think that Mr. Jayakar is right in his contention that the grant to the younger sons was not an absolute grant but a grant of the lands for their maintenance. However, the language used in the decree shows that the grant was permanent so long as any heir remained. I am not prepared to accept die learned counsel's contention that the decree gave no right to the widows of Anandrao. It is true that the word " Santati", which is used at the beginning of the decree, means progeny or offspring and would not include widows of the grantee. But the word " Waras ", which is used elsewhere, is a general word which would include the widows. Ekradeshwar Singh v. Janeshwari Bahuasin (1914) L. R. 411. A. 275 : S. C. 17 Bom. L. R. 18, cited by Mr. Jayakar, does not, in my opinion, justify the conclusion that the widows should be held to be excluded. In that case the widows were excluded by the custom of the family. Here no such custom is proved, nor I think can it be presumed to exist. The learned counsel also cited Rama Rao v. Raja of Pittapur (1918) L. R. 45 I. A. 148 : S. C. 20 Bom. L. R. 1056 where it was held that "an impartible Zamindari is the creature of custom; it is of its essence that no coparcenary in it exists. Apart, therefore, from custom and relationship to the holder, the junior members of the family have no right to maintenance out of it. " A fortiori, Mr. Jayakar says, the widows would have no right to maintenance. In the present case, however, no one is claiming a right to maintenance. The plaintiff's case is that the widows of Anandrao took as his heirs, and he takes as Anandrao's adopted son. I do not find anything in the decision or in the reasoning in this case which is inconsistent with the proposition that the grant to Anandrao and his heirs might include his widows.
Further, it seems to me to be doubtful whether it is open to the defendants to set up a plea that the widows took nothing under the decree. Until the case came to be argued their contention had always been that Anandrao's widows took the property as his heirs. In exhibit 33, which is the sale-deed in favour of defendant No.3, defendant No.1, the vendor, stated " we three widows are the heirs of our husband. " In the statement (exhibit 211), which she made before the Mamlatdar in February 1923, she stated that she and the other widows of Anandrao had been doing vahiwat under the award and that Firangojirao had no connection with the property. As to defendant No.3, he has admitted in his deposition in this suit that he was collecting the income of the lands as the agent of defendant No.1. Mr. Jayakar says that he has not admitted that he was the agent of the other widows. But he made a statement before the Mamlatdar in 1922 (exhibit 210) in which he clearly stated that Anandrao's widows were his heirs and in the vahiwat of his lands. Neither of them has ever asserted at any time that the widows had no right to Anandrao's estate because it had lapsed to the senior branch. There was nothing to that effect in the pleadings. Both these defendants put in a supplementary written statement in which they alleged that the plaintiff's claim was defeated by the lapse of the watan to Government, but did not allege any lapse of Anandrao's estate to Firangoji.;