LAXMAN GOPAL Vs. VISHNU RAGHOBA

JUDGEMENT

(1.) THESE three revnl. applns. raise an interesting question as to whether the mulgenis are tenants within the meaning of Bombay Act XXIX [29] of 1939. The petnrs. in all the three cases before me are mulgenis. Three suits had been filed against them by their respective landlords claiming rent from them on the basis of an agreement between them. The mul-genis resisted the claim on the ground that the rent under the agreement could not be recovered having regard to the provisions of Section 15 (2), Bombay Tenancy Act. That naturally raised the question as to whether the mulgenis were tenants within the meaning of Section 2a of the said Act. The learned Judge who tried the three suits came to the conclusion that they are not tenants within the meaning of the said section and as such are not entitled to the protection of Section 15. He has, therefore, decreed the pltfs. ' claims. In their present revn. applns. before me the mulgenis have contended that the learned Judge was wrong in holding that they were not tenants and in coming to that conclusion he has not properly appreciated the real nature and incidents of the mulgeni tenure. This tenure prevails on an extensive scale in the Dist. of Kanara and so the question raised in the present proceedings is of considerable importance so far as that district is concerned.

(2.) THIS question has been considered by this Ct. on several occasions in the past and the case for the petnrs. is that their contention is fully borne out by the decisions of this Ct. Before referring to these decisions, however, it may be convenient to discass the literal meanings of some of the relevant terms as they are found in Wilson's Glossary. "mulagar" or "mulgar" means owner or original proprietor; he is sometimes described as Mulavargdar. "gaini" or "geni" means rent paid to the landlord or proprietor. "mulgeni" means permanent tenants. Thia word is used in contradistinction to temporary tenants who are called "chali-Genis. "

(3.) THE question as to the nature of the mulgeni tenure was considered incidentally in the well-known case of Vyakunta Bapuji v. Government of Bombay, 12 Bom. H. C. R. App. l. This case is some-times described as the Kanara case. In 1875 a question arose before the Dist. Ct. in Karwar as to whether Govt. could enhance the land revenue payable in respect of land held by the mulavargdar. This Ct. thought thab the question was of such general importance that it directed the case to be transferred from the Dist. Ct. of Karwar to itself and tried the issues arising between the pltf. and the Govt. of Bombay. Westropp C. J. and West J. , heard the suit and the judgment was delivered by the learned C. J. in which he exhaustively considered the rights of the mulavargdars in respect of the lands held by them and the rights of the Govt. to enhance the land revenue in respect of such lands. In dealing with the rights of the mulavargdars it was inevitable that the learned Judges should have incidentally considered the rights of the mulgenis also. A distinction was drawn between gaini-varg and mulgeni. "the gaini-varg is held directly from the State," observed Westropp C. J. , "whereas the mul-gaini tenure is said to be a permanent tenancy under the rayut or mulavargdar at a fixed and invariable rent. " The ques-tion as to the mulgeni's rights, however, directly arose for decision eight years later in Vyankatraya v. Shivrambhat, 7 Bom. 256. In this case the pltf. who had obtained a decree against a mulgeni, wanted to attach the mulgenis' rights in the land in execution of his decree. The mulavargdar or the proprietor objected to the attachment and sale of the said rights on the ground that there was a clause in the lease passed in favour of the mulgeni which expressly prohibited the mulgeni from alienating his rights by mtg. , sale or lease and which further stipulated that he was "not to let it be sold, or attached and sold in satisfaction of judgment debts;" and that if he did, the landlord might take away the land and give it to others for cultivation. In the suit from which the appeal arose the D. H. had claimed a declaration that the mulgeni's rights were liable to be attached and sold in execution of his decree against the proprietor who was the deft. Both the Cts. below had held that the clause in the lease on which the proprietor relied was invalid. But this view was reversed by Sargent C. J. and Melvill J. In dealing with the nature of the mulgeni tenure and the rights of the mulgenis under this tenure Sargent C. J. referred to the historical material then available to the Ct. The first document in point of time was the report of Sir Thomas Munro made in 1800. In this report, Munro had described how the land in Kanara was parcelled out amongst a prodigious number of proprietors who paid a fixed rent to the Govt. and that these proprietors had under them an infinite number of lesser proprietors holding their lands of them with all the same proprietary rights as those under which they held their own of Govt. It would thus appear that Munro was disposed to treat the mulgenis not so much as tenants, as sub-proprietors or occupants of the land. The second document to which the learned Chief Justice referred was a minute made by the Revenue Board on 6-1-1818. This minute showed that the exclusive rights to the hereditary possession and usufruct of the soil is in Kanara termed varga, and it had been vested in the military tribe of the Nayrs, who were at one time the exclusive mulis or landlords of that Province. The Nayrs had under them a number of inferior rayats called genis or tenants who fell in two distinct classes--the mulgenis, or permanent tenants and the chali-genis, or temporary tenants. "the mulgenis, or permanent tenants of Kanara," according to this minute