PATALI BEGUM Vs. YESHWANT THITE

JUDGEMENT

(1.) THE suit out of which this appeal arises was filed by the plaintiff to challenge an order passed by the District Deputy Collector of Satara on December 17, 1923. THE plaintiff alleged that the suit land was the service inam land of the defendant Kazi family ; that the defendant's ancestors granted the land by way of gift to his ancestor free of any assessment; that the District Deputy Collector, Satara, levied full assessment on the plaint land by his order dated December 17, 1923, at the instance of the defendant's father and that the order was ultra vires.

(2.) THE District Deputy Collector in passing the order of December 17, 1923, purported to act under the Watan Act, and the only question that really arises in this appeal is whether the Watan Act applied to the lands held by the defendant's ancestors as Kazis. Mr. S. G. Patwardhan for the appellants has contended that the office of a Kazi is a hereditary office and that the lands given to the Kazis as service inam lands are watan lands within the meaning of the Watan Act. Now watan property is defined under Section 4 of the Watan Act, and that section provides that "watan property" means the moveable or immoveable property held, acquired, or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office. "Hereditary Office" is also defined as every office held hereditarily for the performance of duties connected with the administration or collection of the public revenue or with the village police, or with the settlement of boundaries, or other matters of civil administration. As far back as 1877 it was held by Sir M. R. Westropp, Chief Justice, and Mr. Justice Melvill in Jamal walad Ahmed v. Jamal walad Jallal (1877) I. L. R. 1 Bom. 633 that the office of a Kazi was not hereditary and they held that the appointment of a Kazi Should be made by the Sovereign with the greatest circumspection with regard to the fitness of the individual appointed; and though the State might have full power to make the watan attached to the office of Kazi hereditary, yet under the Mahomedan law it had no power to make the office itself so. THEy took the view that there might be a local custom which would have to be established whereby the office of a Kazi might become hereditary. In Baba Kakaji Shet Shimpi v. Nassaruddin valad Aminuddin Kazi (1893) I. L. R. 18 Bom. 103, an appellate bench of this Court consisting of Sir Charles Sargent, Chief Justice, and Mr. Justice Bayley held that the office of Kazi was not hereditary, and they specifically held that the property attached to the office of a Kazi was not watan property within the meaning of the Watan Act. Mr. Justice Fawcett and Mr. Justice Madgavkar in Kasamkhan v. Kaji Abdulla (1925) 28 Bom. L. R. 49 went a little further than, what was decided in Jamal walad Ahmed v. Jamal walad Jallal. In the case before them the plaintiff sued for a declaration that as a hereditary Kazi he was entitled to exclusively officiate at marriage contracts, funeral rites and other religious functions amongst the Mahomedan communities of Pawas and he complained that the defendant, who was not a Kazi, had officiated at certain marriages. Mr. Justice Fawcett in delivering the main judgment of the Court took the view that a custom by which certain Kazi families hereditarily officiate as the Kazis of a village was invalid as being opposed to Mahomedan Law, so far as any claim to hereditary and exclusive right to officiate as Kazi at marriage contracts, divorces and religious ceremonies was concerned, and he points out that the Mahomedan Law does not regard the office of Kazi as hereditary, that is to say, no person can claim to be a proper Kazi merely because he is the son or other descendant of a previous Kazi.

(3.) MR. Patwardhan concedes that if I hold that the Watan Act does not apply, then the order of the District Deputy Collector of Satara is bad inasmuch as he purported to act under the Watan Act.