KESHAV JAGANNATH DIKSHIT Vs. GANGADHAR YADNESHWAR DIKSHIT

JUDGEMENT

(1.) These are cross-appeals arising out of an order made by the First Class Subordinate Judge of Jalgaon in an execution matter arising out of an award decree. The facts of this case are lengthy, but it is not necessary to go into the past history of the property, because questions relating to this property have been before this Court before, and have formed the subject of various judgments, and there is one reported case, Narayan Jagannath Dikshit V/s. Vasudeo Vishnu Dikshit (1890) I.L.R. 15 Bom. 247, in which the history of this property has been dealt with. For the purposes of this case it is sufficient to say that we are here concerned with a saranjam property known as the Shendurni estate in Khandesh, This was granted by the Peshwa in exchange for another property known as Dhokani to Narayan Dikshit Patankar, who is the ancestor of the present parties. Narayan had two sons, Vasudeo and Balkrishna. The present plaintiff, who is now the holder of the saranjam since 1900, is a descendant of the elder son Vasudeo, and. therefore, the representative of the senior branch. The defendant, Gangadhar Yadneshwar, is the representative of the junior branch. By a family arrangement which was recognised by the Inam Commission in 1855 the property was divided into two separate mahals. The northern mahal, with which we are not now concerned, was placed in the possession and management of one of the members of the senior branch, although not the grantee himself. The southern half or mahal with which we are now concerned has been from the beginning in the possession and management of the junior branch now represented by the defendant Gangadhar, but the saranjamdar receives income from the northern mahal, and he is also entitled to a percentage of the net collections of revenue in the southern half, and the present appeal arises out of an order in execution proceedings made on an application by the saranjamdar, the plaintiff, to recover from the defendant, who is in possession of the southern mahal, his ten per cent, of the net collections. The right to receive this percentage of the collections arises from an award decree passed between the ancestors of the parties in the year 1887. The present application was to execute this award decree, and various objections were raised by the defendant, the principal one being that inasmuch as the saranjam was resumed by Government and re-granted to the plaintiff in 1900, the effect of the resumption and the re-grant was to do away with all previous arrangements between the parties, and, therefore, the award-decree is no longer capable of execution after the resumption. The second point taken was that the defendant was not liable to pay to the plaintiff any percentage of collections in respect of the sub-inams which had been granted by the holders of the southern mahal to various other persons. The Subordinate Judge of Jalgaon found that the question as to the award-decree being enforceable was res judicata between the parties by reason of the decision in a previous darkhast of 1904 confirmed on appeal by the High Court in 1905. He further held that the defendant was bound to account to the plaintiff for the rentals of those sub-inams which had been granted by him or his family, but he held that the plaintiff was not entitled to demand the accounts of the village expenses, but was bound to accept the customary estimate of them at twenty per cent. of the gross collections, and he accordingly rejected the plaintiff's claim on that score. Both parties have appealed against this order. The appeal of the defendant, which is the principal appeal, is No. 531 of 1928, in which the same contentions are raised as were raised in the lower Court and which were also raised and found against him in 1904 and 1905, while the plaintiff has made appeal No. 465 of 1928 against the order regarding the deduction of twenty per cent. from the gross collections for village expenses. The plaintiff's appeal being first in point of time, was heard first, but the principal appeal is the other, and if that was successful, then the question of the amount to be deducted for village expenses would not arise, inasmuch as the plaintiff would not be entitled to receive anything out of the collections realised by the defendant from the southern mahal, I shall accordingly address myself first to the points which arise in the appeal of the defendant, which are, first, whether it is open to the defendant, in view of the decision of 1905, to re-open the question of whether the award decree is binding upon him; secondly, if it is so open, whether the decree is binding on him or not; thirdly, whether the defendant is entitled to a reduction in respect of the sub-inams which have been granted by him or his ancestors; and lastly, the question which arises in the plaintiff's appeal, viz., whether the plaintiff is entitled to go into the question of the actual amount of the expenses of village management or whether he is bound to accept the ratio of twenty per cent. of the gross collections.

(2.) The award-decree was obtained by the plaintiff's grandfather against the father of the defendant on August 30, 1867. That award-decree arose out of a suit which was referred to arbitration, brought by the then plaintiff against the representatives both of his own branch who were in possession of the northern mahal of Shendurni, and defendant No. 2, who was the father of the present defendant and was in possession of the southern mahal under the family arrangement already referred to, that arrangement having received the approval of the Inam Commission, and the sanction of the Government, ultimately confirmed by the Board of Directors, as at that time the paramount power was the East India Company. Various contentions were raised by the two sets of defendants. We are not now concerned with any of the contentions raised by the then defendant No. 1 as regards the northern mahal. It will be necessary, however, to refer briefly to the terms of the award-decree and the findings arrived at by the arbitrator, and it is quite clear from this decree that the plaintiff's grandfather was recognised as a saranjamdar of the whole saranjam, his name being ordered to be entered in the Government record, and it being distinctly laid down that the two groups of defendants, who were in actual possession and management of the two mahals, were in possession as his representatives or deputies. The word used in the vernacular is vidyaman. At this distance of time, and on the record which is before us, it is not possible to know what was the reason of this family arrangement, although it occurred to me that inasmuch as the original grantee was the spiritual preceptor of the Peshwa, it may possibly be that he was required to be in attendance at the Court at Poona or elsewhere, and, therefore, would be unable personally to reside on his property or manage it, This is, however, mere speculation, although the matter is of some historical interest. However that may be, the actual possession of the two mahals under this arrangement was, as regards the northern mahal, with the representatives of the branch of the saranjamdar, but not with the saranjamdar personally, and as regards the southern mahal it was with the representatives of the junior branch, i.e., the ancestors of the present defendant. The clause in the award-decree with which we are concerned is at p. 16 of the record, and the translation on the record is not very good. An alternative translation has been put in by the learned counsel for the respondent in the second appeal. The clause runs as follows:-- Moreover an order has been passed that the saranjam has been re- granted in the name of the plaintiff by Government and is ordered to be continued as long as his direct lineal descendants are in existence. And so both the defendants (meaning the holders of the northern mahal and the holders of the southern mahal) should after the revenue of the villages is collected pay to the plaintiff every year at the proper time in addition to the plaintiff's share ten per cent. from the balance which remains over after deducting according to custom Government dues, mokasa, etc. and the expenses of the village after showing accounts.

(3.) I need not give the remainder of the clause which refers to interest falling due on the amount not being paid punctually. We are not now concerned with the share of the plaintiff except the ten per cent., which under this award-decree he was to receive from the net revenues of the southern mahal after the mokasa which means tribute payable to Government, and the village expenses had been deducted. It has been argued by the learned counsel for the appellant that the saranjam having lapsed to Government and having been re-granted to plaintiff in 1900, the effect of the lapse and the re-grant was to do away with all the previous encumbrances on the land including the award-decree, and, therefore, the plaintiff, who succeeds not as the heir of his father and grandfather, but as a new grantee from Government, loses all right to enforce the award-decree which had been obtained by his grandfather against the father of the present defendant. The terms of the re-grant are on the record. The Government Resolution is at p. 63, Exhibit 17, in which after reciting that the saranjam be formally resumed on account of the death of Jagannath Narayan Dikshit, and be re-granted to Keshav Jagannath Dikshit, and entered in his sole name in the accounts of the Collectorate, it goes on to say: Regarding possession Government have ordered that the private family arrangement in conformity with the decision of 1885 should continue and that Keshav Jagannath Saran jamdar should be placed in possession only of that moiety of the estate which was under the arrangement of 1885 allotted to his branch of the family.