BHAIJI ISHWARDAS SHAH Vs. TALUKPAIU SETTLEMENT OFFICER

JUDGEMENT

(1.) The plaintiff sued for a declaration that the defendant, the Talukdari Settlement Officer of the Gujarat Prant, had no right to take from him possession of the field described in the plaint, and. for a permanent injunction restraining the defendant from taking possession or causing it to be taken from him or from, obstructing the plaintiff in any way. The property mentioned id the plaint is part of the Talukdari estate which had been nettled in Jivai on a cadet branch of the Talukdari family. One Vakha in 1892 was the elder member of that cadet branch. He mortgaged the plaint property to the plaintiff, and his son Vaza, joined in the mortgage Vakha died in 1901. In 1905, Vaza executed, a sale-deed to the plaintiff of the property mortgaged in 1812. In 1908, the Talukdari Settlement Officer issued a notice directing him to give-up possession. The learned District Judge has confirmed the decree of the lower Court which dismissed the suit.

(2.) In appeal, the first point that was taken was that Vakha and Vaza were not Talukdars within the meaning of Section 31(1) of the Gujarat Talukdars Act, VI of 1888. That question, we think, has been decided by the decision of this Court in Thakarshi Trikam v. Chudasama Akhuhha S.A. No. 428 of 1910 (Unrep.), and we agree with the learned District Judge in thinking that that case cannot be distinguished from this case. The parties there were Bhayats, and so are they in this case. The only distinction that can be drawn between the two cases is that in Thakarshi Trikam s case (1), the whole village had been granted in Jivai, whereas in this case only a few fields. The fact remains that a grant was made in Jivai to cadets of the Talukdar s family, and they therefore must be considered as co- sharers and in the same position as Talukdars.

(3.) Then it was argued that as Vaza was joint with his father, he had an interest in the Jivai property as if it were joint family property. We cannot agree with that argument. The land held in Talukdari tenure is totally distinct from land ordinarily held as joint family property by a Hindu family. It is not Subject to the ordinary law of inheritance or succession, and we have only to refer to Part III of the Gujarat Talukdari Act to see that partition of Talukdari land is governed by particular laws. It is only a person who has obtained a final decree of a Court of competent jurisdiction declaring him to be entitled to a share of a Talukdari estate, and every co-sharer whose name has been recorded, as such, in the Settlement Register prepared in accordance with Section 5, who can be entitled to have his share divided from the rest of the estate. Then the subsequent sections enact how partitions should be effected. Therefore, I cannot think that in 1892 Vaza was a co-sharer with his father in the Jivai property, and not having any interest in the property at the time, he was not competent to encumber the interest to which he might succeed on his father s death. Therefore, all that was mortgaged by the document of 1892 was the life interest of Vaklia, since Yakha was not competent owing to the provisions oft Section 31 (1) of Act VI of 1888 to enter into a valid mortgage beyond his life-time. Then it would follow that Vazo became entitled to the Jivai land on the death of his father, and there is no necessity to consider whether there was any equity between him and the mortgagee owing to his having been a partly to the mortgage of 1892. But in 1905 he sold the property to the plaintiff. That, clearly was an invalid alienation under Section 31 (2) of the Gujarat Talukdars Act. The Talukdari Settlement Officer therefore was entitled to issue notice under Section 79 Act the Bombay Land Revenue Code read with section/31 (2) of the Gujarat Talukdars Act