Bose - (1.) THE plaintiff appeals.
(2.) THE suit relates to a Saranjam estate in the State of Bombay. THE plaintiff claims to be the sole Saranjamdar and seeks certain declarations and other reliefs appropriate to such a claim. The first and second defendants are members of the plaintiff's family while the third defendant is the State of Bombay (Province of Bombay at the date of the suit). The only question is whether the suit is barred by section 4 (a) of Bombay Act X of 1876 (Bombay Revenue Jurisdiction Act). The following genealogical tree will show the relationship between the parties: JUDGEMENT_138_AIR(SC)_1952Image1.jpg The facts are as follows. A common ancestor of the present parties was given the Gajendragad estate as a Saranjam some time before the advent of the British. When they arrived on the scene they decided, as far as possible, to continue such Saranjams, jagirs and inams as had been granted by the earlier rulers, and accordingly they framed rules under Schedule B, Rule 10 of Bombay Act XI of 1852 (The Bombay Rent Free Estates Act of 1852) to regulate the mode of recognition and the succession and conditions of tenure to Saranjams, which are analogous to jagirs. In compliance with this, the common ancestor shown at the head of the genealogical tree set out above was recognised by the British government as the Saranjamdar of the Gajendragad estate. He may for convenience be termed the British Grantee. The Register Ex. P-53 shows that the estate consisted of 26 villages. We do not know the date of the British recognition but the nature of the tenure is described as follows :-- `Continuable to all male legitimate descendants of the holder at the time of British conquest, viz., Bhujangrao Appasaheb, the first British Grantee, son of Bahirojirao Ghorpade.`
(3.) ON the death of the British Grantee (Bhujangrao Appasaheb) he was succeeded by his son Daulatrao I who died on the 24th of July, 1864. This Daulatrao I left three sons, Bhujangrao I, Yeshwantrao and Malojirao. In the year 1866 Bhujangrao I and his brother Yeshwantrao alias Annasaheb sued Malojirao for possession of this Saranjam. A question of impartibility was raised but the Bombay High court declared that the property in British India was partible. They further declared that Bhujangrao I was the head of the family and as such was entitled to a special assignment which was not to exceed a quarter share, for the expenses and duties which might devolve on him by virtue of his position, and that after this had been set aside each of the three brothers was entitled to an equal one-third Share in the landed property in India. This judgment is reported. The duties enumerated at page 170 included the `keeping up of armed retainers for the fort of Gajendragad, and for the improvement of that village, which was the chief seat of this branch of the Ghorpade family, and also to enable him to distribute on ceremonial occasions the customary presents to the junior members of the family.` The judgment is dated the 12th of October, 1868. As a consequence a division of the property was effected. Malojirao separated himself from his brothers and was allotted seven villages. The other two brothers continued joint and took the remainder. But this was only with respect to property situate in British India. The parties also had property in the State of Kolhapur. That was left undivided. ;