VITHALDAS BHAGVANDAS DURBAR Vs. SHRINIVASRAO NAGESHRAO NADGOUDA

JUDGEMENT

(1.) The facts of these appeals are simple, but they raise a point of law on which there is some difference between the decisions of this Court. The question is whether a money decree against a watandar can be executed against the watan property in the hands of his sons. The learned Counsel for the appellants has referred to the set of decisions ending with Narayan v. Ramrao (1901) 3 Bom. L.R. 482, in which it was held that watan property after the death of the watandar was not assets of his estate, from which it would appear that the heir does not succeed to the watan property through his predecessor. The earlier decision of Hanmantrav Khanderav V/s. Bhavanrav Bajirav (1873) 10 B.H.C.R. 299 is prior to the introduction of the Watan Act and is based on Bombay Regulation XVI of 1827. But Jagjivandas Javerdas v. Imdad Ali (1882) I.L.R. 6 Bom. 211, which lays down that as the deceased mortgagor had only a life interest the watan came into the hands of his son free of the mortgage, and Narayan V/s. Ramrao are distinct authorities for holding that the watan property in the hands of the sons is not liable as the assets of the father. The lower appellate Court has relied on these two decisions. There are, however, a number of later decisions of this Court, which, it is contended, lead to an opposite conclusion. In Ganesh Ramchandra V/s. Lakshmibai (1921) I.L.R. 46 Bom. 726, it is argued, it was held that the heir claims through the watandar, but that case was decided on special circumstances, the auction purchaser there being a watandar of the same watan, and the sale being effected for legal necessity by the widow. In Rama v. Shamrao (1904) 7 Bom. L.R. 135 it was held that adverse possession commenced in the lifetime of one watandar avails as against the subsequent watandar, and will not be stopped by his minority at the death of such preceding watandar. It is based on Radhabai and Ramchandra Konher V/s. Anantrav Bhagvant Deshpande (1885) I.L.R. 9 Bom. 198 F.B., where it was held that the succeeding holder takes as the heir of his predecessor. There are two recent cases on the point, Tuka V/s. Ganu (1930) 32 Bom. L.R. 1398, in which it was held that the succeeding watandar derives his title as heir of the preceding watandar, which is capable of being barred and extinguished by adverse possession, and that follows the Privy Council case, Padapa V/s. Swamirao (1900) I.L.R. 24 Bom. 556 This decision was followed in Swamirao v. Bhimabai , which is a case of my own. It is contended that if a watandar claims through his predecessor, the watan property in his hands will be liable for the debts of the preceding watandar under Section 53 of the Civil P. C.. The learned Counsel, however, has to admit that no case has gone so far as to say that watan property in the hands of the successor of the watandar who incumbered it is liable to attachment and sale contrary to the express statutory provision in Section 5 of Bombay Act III of 1874, and he is obliged to argue that the property should be put up to sale subject to the condition that it should be purchased only by a watandar of the same watan. Now, although the succeeding watandar may claim through his predecessor, and adverse possession against the predecessor may continue as against the successor, this is not the same thing as holding that under Section 53, Civil Procedure Code, watan property in the hands of the successor is liable to attachment and sale in execution of a decree against the preceding watandar, which would be in effect to nullify the provisions of Section 5 of the Bombay Hereditary Offices Act III of 1874, and the argument that the Collector can take steps under Section 9 to set aside the attachment and sale does not affect the question. I am clearly of opinion that in view of the statutory prohibition in Section 5 of the Watan Act, watan property owned by a watandar is not after his death liable for is debts in the hands of his heirs under Section 53 of the Civil P. C.. Further, although an alienation to a watandar of the same watan is not forbidden by the statute, it would, I think, be futile to order the property to be sold subject to the condition that the purchaser should be a watandar of the same watan. We do not know in the present case whether there are any watandars of the same watan other than the defendants, and if there were, it is not certain that they would purchase the property. In fact one-s ordinary experience of execution proceedings leads to the conclusion that they would in all probability agree among themselves not to purchase, so that the sale would be infructuous. There are already quite enough difficulties in the matter of bringing execution proceedings to successful conclusion with importing a condition such as the learned Counsel asks for into the proceedings, and as I think it would not be in the interests of justice that a sale ordered by the Court should be barren of any results, I cannot accept any such suggestion as that made by the learned Counsel.

(2.) The result consequently is the appeal will be dismissed with costs. Divatia, J.

(3.) This appeal raises an important point of law as to whether a money decree obtained against a watandar during his lifetime can be executed against the watan property in the hands of his son. The lower Court has held that it cannot be so executed and hence this appeal.