M. C. Chagla, C. J. - (1.)THIS appeal arises out of a suit filed by the plaintiff for partition and for possession of his half share in the properties in suit. The plaintiff's ease was that these properties were joint family properties, and the joint family consisted of his father Narayanrao, his elder brother Balasaheb and himself. Narayanrao died in 1927, Balasaheb died on January 5, 1934, and according to the plaintiff he became the karta of the family on the death of Balasaheb. Balasaheb left two sons, defendants Nos. 1 and 2. According to the plaintiff, there were disputes between him and defendants Nos. 1 and 2 and hence he filed a suit for partition. He also in this suit challenged various alienations made by his father Narayanrao and brought the alienees on the record of the suit. The defence of defendant No.1 was that the properties in suit were watan properties, they were impartible and governed by the rule of primogeniture, and therefore on the death of Narayanrao, Balasaheb would inherit those properties, and on the death of Balasaheb, he as the elder son would be entitled to them. He also contended that the junior branch of the family were entitled only to maintenance and that the plaintiff was only entitled to maintenance and that such maintenance had been given to him. The learned trial Judge gave a declaration in favour of the plaintiff that he was entitled to half share in the properties in suit. With regard to the alienations lie held that they were binding on the parties to the suit.
(2.)IN this appeal two main questions have been argued. The first is with regard to the question whether the properties in suit constitute an impartible estate or whether they are subject to the same ordinary Hindu law of succession. It is now well settled law that to every estate, whatever its character, the ordinary Hindu law of succession applies, and it is for the party who alleges that a different law of succession applies to prove as a matter of custom. The plaintiff's case with regard to these properties was that they were given by the Adilshahi dynasty to Parsoji Basaji as watan lands in lieu of services to be rendered by him, that these lands were impartible, and that they descended by primogeniture. After Parsoji there were two branches of the family which have been referred to in this litigation as the Eksambekar branch (which we shall call the E branch), and the Ghosarwedkar branch (which we shall refer to as the G branch ). It was the case of defendant No.1 that for some time the lands were wrongfully seized by the G branch, but ultimately in 1707 the lands were regranted to Sambhaji belonging to the E branch, which according to him was the senior branch. Subsequently, part of these lands again went to the G branch, and when the British Government arrived on the scene in 1836 they recognized the G branch as the representative Watandars. Then one Janabai, the mother of Narayanrao, filed a suit in Belgaum Court, being suit No.135 of 1879, against Gangabai, the representative of the G branch, for possession of the suit lands. This litigation ultimately ended in appeal to the High Court on March 24, 1887, and by a consent decree Janabai was given 25 lands and Gangabai was ordered to pay the whole of the judi. These are the lands which are now in suit.
Now, let us briefly consider what is the evidence with regard to the question of custom with regard to impartiality. It is perfectly true that an estate may be impartible by the terms of the grant itself. But that is not the case here. It has not been suggested that the grant made to the ancestors of the plaintiff and defendant No.1 contained any term (making this estate impartible, and therefore the only question that arises on this point determination is whether a custom to has been established which would go to show that these particular watan lands descend by primogeniture and not by the ordinary principles of Hindu law. Defendant No.1 has relied for this custom on certain documentary evidence. In the first place, there are certain lavani patraks, exhs. 247 to 257, which according to defendant No.1 go to show that the lands were granted to the junior members of the family for maintenance, which would further show that the properties were not divided between the different sons but went to the eldest son and the younger sons merely got maintenance. We have looked at these lavani patraks. The lands described in these patraks except in the case of one, exh. 251, do not show that they form part of the watan lands, nor do they show in all cases that the lands were granted for maintenance. Apart from that, as the learned Judge has pointed out, these patraks do not establish that all the junior bhaubands received maintenance from the senior members of the branch. In order to establish their case, defendant No.1 would have to prove that only the eldest member inherited the properties and all the junior members were given some lands in lieu of maintenance and that they had no independent right to these lands. But these lavani patraks do not help defendant No.1 in establishing that position. Reliance was also placed on certain record of rights and ledgers which also show lands assigned to various members of the family, but these documents also suffer from the same infirmity from which the lavani patraks suffer and to which we have already drawn attention. Defendant No.1 also relied on the dial evidence of two witnesses in order to establish custom. They are exhs. 283 and 284. These witnesses were called to establish similar custom in other families, and they said in their evidence that they had certain properties given to them for maintenance. Exhibit 283 did not produce any document showing that the land in his possession was given to him for maintenance, and exh. 284 rather gave away the case when he admitted in cross-examination that there was a partition of the lands granted to him between him and his brothers, although he said that those lands were for maintenance, and he also admitted that patilki deshmukhi and deshpandeki watans were invariably impartible. But, in our opinion, there is on the other side clear and convincing evidence which goes to show that far from there being a custom of impartiality there has always been partitions in this family with regard to these very watan lands. Janabai's sait itself, suit No.135 of 1879, was based on partibility. Her case was that there was a partition between the two branches E and G and she was entitled to certain lands on the basis of that partition, and her witness Limbajirao in that suit stated that partition was traditional in their family and that a partition had taken place in the days of Shivaji Maharaj between Vithalrao and harayanrao who represented the two branches. He also referred to another partition which took place 35 years before he gave evidence between himself and two other members of the family. Then Narayanrao himself filed a suit, being suit No.451'of 1915, for a declaration that he was the rightful patilki watandar, and in the plaint in that suit he contended that the ancestors of himself and of defendants who represented the G branch had acquired lands over 200 years ago and the lands were divided into two shares about that time, one share going to the plaintiff's branch and the other to the defendants' branch. But the easiest and the simplest way for defendant No.1 to have established this custom was to have proved, as he in fact did allege, that plaintiff got some property by way of maintenance on the death of Narayanrao. No attempt whatever was made by him to establish that, and that to our mind conclusively shows that the case set forth by defendant No.1 was without any basis that the junior member of the family did not get any share in the property of his father but only received maintenance. The learned trial Judge in a very careful judgment has considered the whole of the evidence, both oral and documentary, led by both the parties on the question of custom, and having considered the evidence we are entirely in agreement with him that defendant No.1 has failed to discharge the burden which was on him to establish custom which departs from the ordinary Hindu law of succession. Therefore, the learned Judge was right when he held that on the death of Narayanrao, Balasaheb and the plaintiff became entitled to a half share each in the properties left by Narayanrao and therefore the declaration he gave in favour of the, plaintiff must be upheld.

The other question raised in this appeal is with regard to the alienations made by Narayanrao and which are challenged by the plaintiff and supported by defendants Nos. 1 and 2 under Section 5 of the Watan Act. These alienations are five in number and they arc represented by exhs. 294, 295, 309, 308 and 285. Exhibits 294, 809 and 285 are possessory mortgages. Exhibits 295 and 308 are leases, and Mr. Madbhavi does not challenge the finding of the trial Court that rent has been received after the death of the alienor and that they have become annual tenants of the parties and they can only be ejected by a proper notice to quit served according to law. Therefore, with regard to these exhibits the decision of the trial Court must be upheld, viz. that they cannot be challenged by the plaintiff. But the difficulty arises with regard to the possessory mortgages, exhs. 294, 309 and 285. The learned trial Judge held that Narayanrao was not a Watandar within the meaning of the Watan Act and that therefore these alienations cannot be challenged under Section 5 of the Act. Section 5 of the Act contains a prohibition against alienations of watan property and watan rights, and such alienations if made cannot endure beyond the lifetime of the alicnor. But the question that falls to be determined is whether Narayanrao was a Watandar within the meaning of the Watan Act. If he was not a Watandar, then the ordinary law would apply and there is no reason why these alienations should not hold good. Watandar has been defined in Section 4 of the Act in these terms : Watandar means a person having a hereditary interest in the Watan. It includes a person holding Watan property acquired by him before the introduction of British Government into the locality of the Watan, or legally acquired subsequent to such introduction, and a person holding such property from him by inheritance. It includes & person adopted by an owner of a Watan or part of a Watan subject to the conditions specified in Sections 33 to 35. And the question is whether the first part of the definition is an exclusive and exhaustive definition and the latter part merely illustrative, and further whether the illustrations given in the latter part must fall within the ambit of the exclusive definition given in the first part, or whether the whole definition must be looked upon as one, the second part being supplementary and additional to what is contained in the first part. The importance of deciding this will become immediately apparent, because if the first part of the definition is exclusive and exhaustive, then only such a person would be watandar who has a hereditary interest in the watan, and watan is defined as not only watan property but also the hereditary office and the rights and privileges attached to them, the property and the rights together constituting watan. Therefore, if a person acquired property before the introduction of the British Government into the locality of the watan, without at the same time acquiring a right to the privileges of the office, he would not be a Watandar. Similarly, if he acquired watan property subsequent to the introduction of the British Government, he would equally not be a Watandar unless the property tarried with it a right to the office. In this case it is admitted and it is not in dispute that the plaintiff and defendants Nos. 1 and 2 have no right to the office of the Watandar. They only hold watan property, and if the definition of Watandar is to be construed in the light which we have suggested, then undoubtedly the trial Court would be right and Narayanrao would not be a Watandar and the alienations made by him could not be challenged in this suit.

(3.)NOW, the trial Court relied on a judgment of a Divisional Bench of this Court in Tarabai v. Murtacharya (1939) 41 Bom. L. R. 924. The bench consisting of Sir John Beaumont, Chief Justice, and Mr. Justice N. J. Wadia, were considering the question of the special law of inheritance to watan property enacting the Watan Amending Act of 1886. That Amending Act lays down certain rules as to succession to property in watan families and it prefers male members to female members, postponing the latter till the male members are exhausted, and this bench took the view that this special law of inheritance did not apply to a person who merely acquired watan property without acquiring the office and without being under any obligation to perform the services attached to the office, as he was not a watandar within the meaning of the Watan Act, and in coming to that conclusion Sir John Beaumont considered the definition of watandar in the Act and came to the conclusion that the primary definition of a watandar was that he was a person having a hereditary interest in a watan, that is, the office and the property if any, and that the subsequent words were merely explanatory of the primary definition and did not curtail it. With very great respect to this bench, in coming to this conclusion they overlooked several important considerations. In the first place they overlooked the fact that what they had to decide with regard to Section 2 of Act V of 1886 was, what was a watan family, and watan family was defined under Section 4 of the Watan Act and that definition was that family includes each of the branches of the family descended from an original Watandar. Therefore, the watan family was confined to the branches of the original acquirer of the watan land. If there was an alienation, the alienee and his family could never become watan family within the meaning of the Act, and Section 2 of Act V of 1886 only applied to the watan family. That is, the special law of succession laid down only applied to the original acquirer and his family, and, undoubtedly, in the case of the original acquirer he would have not only the watan property but also the right of office. They also overlooked the fact that before the advent of the British Government alienations by Watandars were not prohibited and watan properties had passed to various alienees and such alienations undoubtedly would be without the right to office going with it. Therefore, if that was the true definition of Watandar, then all persons who had acquired watan lands in the pre-British Government days could never fall into the class of Watandars. They also overlooked the fact that the Act defines a representative Watandar as a watandar registered by the Collector under Section 25 as having a right to perform the duties of hereditary office, and therefore the Act itself clearly makes a distinction between a Watandar who may merely possess watan property and a Watandar who not only possesses watan property but also has the right to perform the duties of the office. Therefore, to say, with great respect, that every Watandar within the meaning of the Act must have a right to perform the duties of the office seems to be contrary to both the intention of the statute and the plain language used by it in distinguishing the two cases of a Watandar and a representative Watandar. Section 5 itself deals separately with the two cases of a Watandar alienating any watan or part thereof or interest therein and the case of a representative Watandar alienating any right with which he is invested as such under the Act. This, again, contemplates a Watandar having only watan lands without the rights of office alienating1 those lands or part of those lands. Again, with respect, to the bench, the case in Kadappa v. Krishtappa (1935) 37 Bom. L. R. 599 was not cited before them, otherwise in coming to the decision they did they ought to have held that that case was wrongly decided. That was a case where there was an alienation of watan property by a Watandar to his bhaubandh for maintenance and Mr. Justice Rangnekar and Mr. Justice Divatia held that that alienation was valid beyond the lifetime of the Watandar because the alienation was to a Watandar of the same watan. NOW, obviously, when watan land is given to a bhaubandh for maintenance, it does not carry with it any right to an office of a Watandar, and if the right to office is a pre-requisite of a person being a Watandar then obviously a bhaubandh who received property for maintenance can never be a Watandar. If that be so, then the alienation in this case was to a person who was not a Watandar and the decision of Mr. Justice Rangnekar and Mr. Justice Divatia was wrong, if the decision in Tarabai v. Murtacharya was right. Tarabai v. Murtacharya came to be considered by another Divisional Bench of this Court consisting of Mr. justice Broomfield and Mr. Justice Macklin in Venkatrao Shrinivasrao v. Basavprabhu Lakhamgouda (1942) 45 Bom. L. R. 754 and this Bench accepted the same definition of Watandar as given in Tarabai's case. An application was made to them to refer the case to a Full Bench and they declined to do so. The case of Mallappa v. Tukko (1936) 39 Bom. L. R. 288 was cited before them for the purpose of showing that there was a conflict of decisions with regard to the definition of Watandar in this Court, and Mr. Justice Macklin took the view that in Mallappa's case the point was not specifically raised and therefore no question of conflict arose. It is true that in Mallappa v. Tukko on the facts it is clear that there was a grant by the inamdar of a pot-inam to the ancestor of the plaintiffs in that case and the plaintiffs filed the suit for a declaration that they were the Watandars, and Mr. Justice Broomfield himself, who was a party to the decision in Venkatrao Shrinivasrao v. Basavaprabu, Lakhamgouda, at page 293, discussing the findings of the lower Court, states that on the merits the Judge finds that there was a grant of lands to the plaintiffs' ancestor in 1811 and that they are therefore Watandars of the same watan within the definition in Section 4 of the Watan Act, and then turning to the issues. that arose, at p. 294 he sets out the third issue as follows : Whether the plaintiffs are watandars of the same Watan, which means, as admittedly they are; not members of the watan family, whether there was a grant to them before the introduction of the British rule in 1827 or 1828 : see the definition of 'watandar' in Section 4 of the Watan Act. Therefore, the right of the plaintiffs to be declared as Watandars depended upon their acquiring watan land before the introduction of British rule and that was independently of their having received the right of office. On the contrary, it is clearly assumed that the plaintiffs had no right to the office of Watandars as they did not belong to the watan family. But Mr. Justice Macklin is right when he says in Venkatrao Shrinivasrao v. Basavprabhu Lakhamgouda that this particular question was not argued at the Bar or considered by the Court when they decided Mallappa's ease. But; we find that the ease of Kadappav. Krishtappa was not cited before that Bench. If it had been, we feel certain that it would have been very difficult for that Bench to resist an application for the point being referred to a Full Bench. This matter again came before my brothers Sen and Bavedekar JJ. in First Appeal No.108 of 1943, and Mr. Justice Sen delivering an interlocutory judgment realised the difficulty created by the decision in Tarabai's case and he also realised the necessity for a clarification of the matter by a Full Bench. But the matter was not referred to a full bench because the findings of fact by the lower Court were not clear, and therefore Mr. Justice Sen and Mr. Justice Bavdekar sent back the case for a finding on certain issues. When the case came back, this Court (Bavdekar and Dixit JJ.) held that the acquirer of the watan land had also a hereditary interest in the office and therefore the case fell under the first part of the definition of Watandar and it was not necessary to consider what was the true meaning of the second part of the definition of Watandar, and therefore no necessity arose for a reference of this question to a Full Bench.
But in this case before us, the point fairly and squarely arises, and I think it is necessary that a Full Bench of this Court should decide whether the case of Tarabai v. Murtacharya was rightly decided inasmuch as it construed the definition of Watandar under the Watan Act. We therefore formulate the following question for decision by the Full Bench. Whether the person who merely acquires watan property without acquiring the office and without being under any obligation to perform the service attached to the office, is or is not Section Watandar within the meaning of the Watan Act of 1874? The appeal as between the plaintiff and defendant No.1, as we have stated earlier, results in the decree of the trial Court being affirmed in favour of the plaintiff. The appellant, therefore, must pay the costs of the appeal to respondent No.1. With regard to the question as between the plaintiff and the alienees, the appeal will stand over till the decision of the Full Bench.