VINAYAK HARI PARANJAPE Vs. PROVINCE OF BOMBAY

JUDGEMENT

(1.) THIS is an appeal from the judgment dated June 30, 1942, of Mr. M. B. Honavar, who was then Assistant Judge, Thana, whereby he allowed the appeal of the Province of Bombay, who was defendant No.2 in the suit and dismissed the cross-objections of respondent No.1 the plaintiff, who claims to be the mortgagee in possession of certain inam rights under a mortgage deed dated October 29, 1929. The only other party to the proceedings is the mortgagor, the inamdar, and he raises no opposition to the plaintiff's claim as mortgagee, which, so far as is material, is contained in paragraphs 1 and 5 to the prayer of the plaint: (1) It may be declared that the plaintiff is entitled to get his name as mortgagee in possession entered after the name of Sambhaji Shivaji Raje Shirke against the inam right in mouje Jamgaon and Kudli in the taluka of Roha and in mouje Vidhat in the taluka of Mangaon mentioned in Clause 3 above, in the relevant Government records. (5) Defendant No.2 may be ordered to pay to the plaintiff defendant No.1's amount that is credited with Government in respect of the inam right in the three villages mentioned in Clause 1 above and the amount that will be credited with Government every year hereafter till payment of the mortgage amount.

(2.) I must confess that I find the attitude of Government in this matter somewhat difficult to understand, for there is no doubt that the grant of this inam, which dates from before the British connection in India, is an absolute grant to receive one half of the revenue of these three villages and that the right is heritable, partible and alienable at will; nor is there any doubt that the mortgagor is the present holder of the inam rights, subject to the estate and interest therein of the appellant as his mortgagee.

(3.) I am unable to see how that definition has any material bearing on what we have to consider. The Code does not provide that Government shall pay nobody except the "superior holder. " But the position taken up by Government is really grounded on the decision of Dattatraya v. Sadashiv (1939) 41 Bom. L. R. 882, in which it was held that the relationship between Government and the inamdar, who was the superior holder, under the Bombay Land Revenue Code, was not affected by the sale of the superior holder's rights, and that an injunction against Government to pay the plaintiff direct would be contrary to the spirit of the Land Revenue Code. In delivering the judgment of the Court consisting of Mr. Justice Macklin and himself, Mr. Justice Broomfield said (p. 891): We must hold, therefore, that this suit as against Government is barred. It follows from that that no order can be made that plaintiff's name should be entered in the village papers, and defendant No.2 must remain as the superior holder. From that again it seems to follow that Government cannot be ordered not to pay the revenue to defendant No.2 but to pay it to the plaintiff direct. The definition of superior holder in the Land Revenue Code, to which I have already referred, shows that he is entitled to the revenue. Section 85 of the Code provides that he is to receive his dues through the village officers. Under Section 86 the superior holder only is entitled to assistance from Government. So that an injunction against Government to pay the plaintiff direct, and not to pay the superior holder, would be contrary to the spirit, if not to the express terms of the Land Revenue Code. The relation between Government and the superior holder is not affected by the sale of the superior holder's rights.