John Beaumont, J. - (1.) THIS is an appeal from a judgment and decree of the High Court of Judicature at Bombay, dated March 8, 1940, which reversed a judgment and decree of the Joint First Class Subordinate Judge of Belgaum, dated October 28, 1937, dismissing the plaintiff's suit with costs.
(2.) THE property in suit is an impartible estate governed by the rule of lineal primogeniture and is deshgat, patilki and nadgavdki watan property. It consists of land subject to Government assessment and is governed by the Bombay Land Revenue Code, 1879, and the Bombay Hereditary Offices Act, III of 1874, (known as the Watan Act) as amended by Act V of 1886. THE parties are Hindus, subject to the Bombay school of the Mitakshara law. The question for decision in this appeal is as to the nature of a transaction which took place in the year 1887. On that date Rayappa and his younger brother Mallappa were members of a joint family. Whether the family included the members of a younger branch to which the appellant belongs, it is not necessary to consider. Rayappa, as the eldest male member of the family, was the watandar in possession of the suit property. He seems to have been an improvident person, and. had incurred debts to the amount of Rs. 30,000 to Rs. 35,000, some of which were charged on parts of the suit property, and in respect of which creditors were pressing. On February 8, 1887, Rayappa made an application to the Collector of Belgaum (Exh. 114) in which, after explaining his financial difficulties, he informed the Collector that Mallappa had suggested that his name should be entered in the khata in respect of the entire lands as well as in the register of the Patilki Turn to enable him to make arrangements for the entire debts; that Rayappa had accepted this suggestion and accordingly he prayed that the Collector would be pleased to remove his name from the khata and the register for Turns and to enter the name of Mallappa therein.
(3.) ON February 19, 1887, both Rayappa and Mallappa were examined before the Mamlatdar of Athni. Rayappa made a further statement (Exh. 118) confirming his previous request and asking that his statement should be treated as in the nature of their rajinama (conveyance) and arrangements should be made accordingly. Mallappa made a statement (Ex. 115) in which he referred to Rayappa's debts, and stated that he had taken on himself the responsibility regarding the management of all these debts. The statement continued : In accordance with the consent of our elder brother, his name, which is at present in the Pali register, may be removed therefrom and my name may be entered. We alone are entitled to the 16 annas Goudki (right of Patilki service ). Thus is the statement got written. We two brothers are joint. On some date in February, 1887, which is not specified, the wife of Rayappa made an application to the Governor of Bombay (Exh. 120) in which she objected to the proposed transfer to Mallappa on the ground that she might bear a son to Rayappa, who ought to succeed to the estate. On February 23, 1887, the Mamlatdar of Athni was directed (Exh. 167) to ascertain whether there would be any objection to the name of a possible son of Rayappa being entered in the khata. On March 1, 1887, Mallappa made a further statement in which he stated : If hereafter any male issue is born to him (Rayappa) and when that boy comes of age, I will have no objection whatever to get the entry made in his name, considering him to be the direct heir. Knowing that day by day, my brother is involving himself in greater difficulties on account of debts, this method has been adopted for managing everything. But there is no intention to defeat in future the right which would go to Rayappa's direct issue. Rayappa agreed to this in a statement (Exh. 117) made on the same date. As Rayappa never had any male issue, it is not necessary to determine the legal effect of this arrangement. It is clear that under Hindu law it was not competent to confer any interest in the property upon an unborn son of Rayappa, and the highest the ease could be put against Mallappa (apart from contract) would be that his interest was made defeasible in an event which did not happen.;