NARAYAN RAGHUNATH KULKARNI Vs. KRISHNAJI GOVIND KULKARNI

JUDGEMENT

(1.) The question involved in this second appeal is whether a watandar can validly devise his watan property by will in favour of a watandar of the same watan.

(2.) The lands in suit are admittedly Kulkarni watan lands. The Kulkarni service is commuted. Mere commutation of service does not affect the rule as to inalienability embodied in Section 5 (1) (a) of the Watan Act unless the right of alienation without the sanction of Government is conferred on the watandars by the terms of the settlement or has been acquired by them under the same terms. The property in suit is not alleged to be watan property assigned under Section 23 as remuneration of an officiator. Section 7 of the Watan Act will not, therefore, apply. It is common ground that Section 5 (1) (a) of the Watan Act applies to the property in suit. Section 5 (1) (a) of the Watan Act says that it shall not be complete to a watandar to alienate for a period natural life any watan to watandar of the same watan. Under Section 5 (1) (a) of the Watan Act the power of alienation of a watandar is restricted to his lifetime only in case the alienation is to a stranger and not to a watandar of the same watan. Ad, alienation to a watandar of the same watan is \not prohibited. In the present case the devise by will is in favour of defendants Nos. 1, 2, and 3 who are watandars of the same watan. The plaintiff claims the property by inheritance ""along with defendant No. 4.

(3.) The question therefore, in the case is whether the word " alienate " excludes a devise by will. It is urged on behalf of the appellant that the word " alienate " means to transfer by sale. It is conceded on behalf of the appellant that the watandar can make a gift of the watan property to a watandar of the same watan. If a watandar can alienate the property by gift inter vivos, he would presumably have the right to alienate by will in favour of a watandar of the same watan. The word "alienation," according to Stroud's Judicial Dictionary, Vol. I. means "to make a thing another man s." "Alienate according to Wharton's Law Lexicon, means " to transfer property." Alienation would, therefore, include a devise by gift if the effect of it is to make the property another man's by means of a bequest. It is urged on behalf of the respondents that if the word " alienation " excludes a bequest it would lead to the anomalous result that a bequest in favour of a stranger would not be prohibited by Section 5 (1) (a) of the Watan Act.