SHIDHRAJ BHOJRAJ DESAI Vs. DARI SANTARAM MALI

JUDGEMENT

(1.) THE plaintiff sued to recover possession of the land comprised in Survey No. 143 situated in Mangsuli in Athni Taluka. He obtained a decree in the trial Court, which has been confirmed in first appeal. THE only questions which were argued in first appeal were whether the Rajinama was admissible in evidence for want of registration and whether it extinguished the rights of the plaintiff s family in the suit land. THE appeal Court found both these questions in the negative. This village is an alienated village and unsurveyed, and so it does not appear that the persons in actual occupation of the land paying rent to the Inamdar could be said to be in the same position as occupants in unalienated villages. THE definition of "holder" in Section 3(11) of the Bombay Land Revenue Code, is not a satisfactory one for it includes superior holders and inferior holders as defined in Section 3(13) and 3 (14) of that Act. THErefore where the word holder of alienated land is used it is necessary to look at the context to see whether it refers to a superior holder or an inferior holder. For instance, in Section 217 the word holders evidently refers to inferior holders. In Section 88 the word holder refers to superior holders, and it is further clear that in Section 76 the word holders of alienated land also refers to superior holders. It is only when the Survey Settlement has been introduced, or when the powers contomplated in Section 88 have been given to the Inamdar, that he is entitled to receive notices of relinquishment under Section 74 from the persons in occupation of the Inam lands. Only such notices are exempt from registration under Section 90 of the Indian Registration Act. It Beems to me, therefore, that the learned appellate Judge was right in holding that in this case the Rajinama did not come within the exemption of Section 9i) and was inadmissible for want of registration. THErefore it could not be proved that the rights of the plaintiff s family in the plaint land had been extinguished. THErefore the appeal is dismissed with costs. Fawcett, J.

(2.) I am of the same opinion. I think that, Section 76 only operates to apply the provisions of Section 74 mutatis mutandis to the case of a holder of alienated laud who wishes to relinquish his holding to Government. It seems to me that this is clearly supported by the proviso to the section, which, with reference to Sections 49 and 51, in effect provides for the interests of Government under those two sections not being unduly prejudiced by the relinquishment. Then, again, in my opinion, Section 88 clearly shows the intention of the Legislature that the holder of an alienated village or group of alienated lands shall not receive elinquishments from his inferior holders, as if he were a Mamlatdar or a Mahalkari receiving relinquishment from an occupant under Section 74, unless his village or lands have been surveyed and he has been specially authorized to receive such relinquishments. If Section 76 had the extensive effect, that the appellant s counsel contends it has, it would be quite unnecessary to provide for such an authority being conferred upon the Inamdar, inasmuch as he already has that authority under Section 76; and the Court should, in accordance with an ordinary rule of interpretation, where the grammatical construction of an enactment does not prevent it, construe Section 76 so as to fit in with Section 88 and not in a manner which makes its provisions repugnant to those of the latter section. No doubt the expression "holders of alienated land" in Section 76 would ordinarily, as pointed out by the learned Chief Justice, mean superior holders. But at the same time there can be a case of a holder of a small Inam, such as a religious Inam or an Inam for duties useful to the village, where the holder himself cultivates his holding, and is neither a superior holder or an inferior holder. The Legislature, therefore, had to use the general expression " holders of alienated land ", and it is unfortunate that owing to this the section is liable to misconstruction. In the case of Bhutia Dhondu v. Ambo (1888) I.L.R. 13 Bom. 294 this question of registration has not been considered; and in Imam valad Ibrahim v. Bhau Appaji (1917) I.L.R. 41 Bom. 510, 19 Bom. L.R. 329 the transactions took place at a time when it was not necessary according to the law that there should be any document evidencing the transfer. Also it was held that in any case the Rajinamas did not operate to extinguish an interest in land of the value of Rs. 100 or upwards. I do not think, therefore, that these cases should deter us from deciding that the lower Courts have taken a correct view of the provisions of Sections 74 and 76 of the Bombay Land Revenue Code, read with Section 90 of the Indian Registration Act. Accordingly the appeal must be dismissed with costs.