THAKORE FATESINGJI DIPSANGJI Vs. BAMANJI ARDESHIR DALAL

JUDGEMENT

(1.) In this case the plaintiff, Thakore of Kanjeri and other villages of Panch Mahals, sued to obtain a declaration that the defendant holds certain lands as his yearly tenant and also to recover possession thereof. The facts undisputed in this case are as follows. The plaintiff was born on 8 December, 1874. His father died in 1877. The zillah of Panch Mahals was at that time a scheduled district. It had been transferred to the British Government in 1861, Bombay Gazetteer, 253. The Minors Act XX of 1864 was not in force in that district in 1877--vide Section 5 and Schedule 3 of the Laws Local Extent Act, 1874. It came into force on 1 May, 1885, under the Panch Mahals Laws Act (VII of 1885) when the district ceased to be a scheduled district. No statutory provision for the appointment of a guardian existing, the Collector, on the lata Thakore's death, reported the fact, aid asked and obtained the sanction of Government to the attachment and management by his office of the estate during the minority,--Government intimating that on ascertainment of the debts owing by the late holder, they would determine the plan for their liquidation (Exhibit 106, page 58). Thereafter the Collector, without applying for or obtaining further orders from Government, after some correspondence, executed in favour of the present defendant the four successive documents, Exhibits 59, 60, 61 and 62, under which the defendant claims to hold the lands in dispute, some 11,000 acres, as a permanent tenant. Of these documents, Exhibit 59 bears date 29 June, 1881; Exhibit 60, 21 November, 1881; and Exhibit 61, 26 February, 1884--all prior to the operation in the district of Act XX of 1864, and therefore without the grant of a certificate of guardianship to the Collector thereunder. The defendant obtained possession which purported to be given in pursuance of these documents. But in 1890 some doubt being entertained by the Collector as to the validity of the arrangement made with the defendant in view of the introduction into the Panch Mahals of the Acts and Regulations applying to the rest of the Presidency, it was proposed that the Collector, woo had obtained in 1886 a certificate under Act XX of 1834 and was thug governed by the Guardians and Wards Act of 1890, should execute with the necessary sanction a revised and consolidating lease for the purpose of securing the defendant's position. The then Legal Remembrancer having advised in favour of this course, Government by G.R. No. 5008, R.D. of 18 July, 1890, directed his report to be forwarded "for Information and guidance " to the local authorities, without further expressing their views or wishes (Exhibits 100 and 101, pages 53-- 55). In May, 1896, the plaintiff attained his majority. It was not till 30 May of that year that the Collector, purporting to sot as administrator of the estate, executed Exhibit 62 as a new consolidating grant of the lands in question to the present defendant in terms which were, it seems, intended to be identical with those specified in the preceding documents, Exhibits 59, 60 and 61, which it purported to cancel. This document was registered. None of the previous documents, Exhibits 51), 60 and 61, were registered. The Thakore appears to have received charge of his estate from the Collector on 16 January, 1897, Exhibit 117, page 63, receiving at the same time a large number of papers including a file of grants or patas purporting to be under rules known as the Waste Land Rules.

(2.) On 5 May, 1897, the plaintiff, referring to the removal of the so-called attachment from his State and the delivery of charge to him, in a letter to the Collector observed that during the guardianship two villages had been given on grants and requested that the originals should be supplied to him with all papers bearing on the subject (Exhibit III, page 59.)

(3.) On 9 November of the same year the plaintiff again addressed the Collector (Exhibit 118, page 65, Exhibit 95, page 48) on the same subject naming the defendant as the grantee stating that previous grants had been made and that a new grant had been more recently made and registered and desiring a copy are none had been sent. On 16 December of the same year the plaintiff again applied for the grant to be sent to him (Exhibit 94, page 48, and Exhibit 112, page 59) referring more definitely to the grants as made to the defendant under the Waste Land Rules. On a further application, dated 17 May, 1898, the copy of the document of 1896 appears to have been suplied to the plaintiff on 23rd September, 1898 (Exhibit 93, page 46). The plaintiff admits in paragraph 4 of his plaint (page 3) that he received rent from the defendant for two years 1897-90 and 1898-99. But on the 11 January, 1900, he wrote to the defendant (Exhibit 140, page 90) stating that as the defendant refused to vacate and claimed as a permanent tenant under a lease of which the plaintiff knew nothing, notice of a suit for ejectment, in case this hostile claim was not withdrawn, was thereby given. And on the defendant replying on 13 January, 1900 that he relied on the lease from the Collector as guardian and administrator of the plaintiff (Exhibit 64, page 40), the plaintiff two days later, i.e., on 15 January, 1900, filed this suit.