(1.)This is an appeal on a certificate given by the High Court of Bombay, from the judgment and decree of the said High Court dated November 12, 1952, by which it reversed the decision of the Civil Judge. First Class, at Dharwar dated April 20, 1949, in Special Civil Suit No. 16 of 1943.
(2.)The material facts are these Gajendragad in Taluk Ron in the district of Dharwar is a Saranjam estate known as the Gajendragad Saranjam bearing number 91 in the Saranjam list maintained by Government. Within that estate lay village Dindur and survey filed No. 302 of Unachgeri, which are the properties in suit. One Bhujangarao Daulatrao Ghorpade was the holder of the Saranjam estate at the relevant time. In 1932 the Saranjam was resumed and regranted to the said Bhujangarao by Resolution No. 8969 dated June 7, 1932, of the Government of Bombay in the Political Department. This Resolution said :
"The Governor in Council is pleased to direct that the Gajendragad Saranjam should be formally resumed and regranted to Bhujangarao Daulatrao Gorpade, the eldest son of the deceased Saranjamdar Daulatrao Bhujangarao Ghorpade, and that it should be entered in his sole name in the accounts of the Collector of Dharwar with effect from the date of the death of the last holder. The Collector should take steps to place the Saranjamdar in possession of the villages of the Saranjam estate which were in possession of the deceased Saranjamdar.
The Governor in Council agrees with the Commissioner, Southern Division, that the assignments held by the Bhaubands as potgi holders should be continued to them as at present."
One of the younger branches of the Ghorpade family was Babasaheb Bahirojirao Ghorpade, to be referred to hereinafter as Babasaheb. He held by way of maintenance (as potgi holder) the aforesaid village of Dindur and survey field No. 302 of Unachgeri. He had an undivided brother called Dattojirao, who was defendant No. 2 in the suit and is appellant before us. In this judgment we shall call him the appellant. Babasaheb died on May 14, 1940. On his death he left a widow named Abayabai and the appellant, his undivided brother. On July 10, 1941, Abayabai adopted Vijayasinhrao as a son to her deceased husband. Vijayasinha was the plaintiff who brought the suit, and is now the principal respondent before us. It will be convenient if we call him the plaintiff- respondent, and state here that he was the natural son of Bhujangarao's younger brother, another Dattajirao to be distinguished from the appellant who also bears the same name. On Babasaheb's death Abayabai asked for sanction of Government to her taking a boy in adoption; this application was opposed by the appellant. On December 17, 1941, the Government of Bombay passed a Resolution in the following terms :
"1. Government is pleased to direct that the Saranjam potgi holding of village Dindur and Survey No. 302 of Unachgeri, which were assigned for maintenance to the deceased potgidar Mr. Babasaheb Bahirojirao Ghorpade at the time of the regrant of the Gajendragad Saranjam, should be continued to his undivided brother Mr. Dattajirao Bahirojirao Ghorpade.
2. Government is also pleased to direct, under Rule 7 of the Saranjam Rules, that the new potgidar Mr. Dattajirao Bahirojirao Ghorpade should give to Bai Abaibai, widow of the deceased Potgidar Mr. Babasaheb Bhairojirao Ghorpade, an annual maintenance allowance of Rs. 300 for her life.
3. These orders should take effect from the 14th May, 1940, i.e., the date on which the deceased potgidar Babasaheb Bahirojirao Ghorpade died.
4. The Commissioner S. D. should be requested to communicate these orders to Bai Abaibai, widow of the late potgidar, with reference to her petitions addressed to him and also to the Rayats of Dindur, with reference to their petition, dated the 12th May, 1941. The orders should also be communicated to the present Saranjamdar of Gajendragad."
(3.)On February 8, 1943, the plaintiff respondent brought the suit against the Province of Bombay as defendant No. 1 the appellant as defendant No. 2 and Abayabai as defendant No. 3. The suit was contested by the Province of Bombay (now substituted by the State of Bombay) and the appellant. Abayabai supported the case of the plaintiff-respondent, but the died during the pendency of the suit.