AGARSINGJI RAISINGJI Vs. BAI NANIBA

JUDGEMENT

(1.) This suit was filed by the present Thakor of Gamph, Agarsingji Raisingji, to recover the village of Piperia in so far as it was not already in his possession from the three original defendants, namely, Bai Devba, widow of Kaliansingji Rupsingji, Pertapsing Shivsing, otherwise called Vijaysing, who was alleged to have been adopted by Devba, and Bai Shri Bairajba, who was alleged to be a mortgagee of the village of Piperia. The village of Piperia was one of the nine villages which at the beginning of the last century belonged to the Thakor of Gamph, a Thakor of the Chudasama Rajput clan whose home was in Kathiawar and adjacent to the Ahmedabad territory.

(2.) The evidence shows that the Chudasama Rajputs many years ago migrated from Junagad into what is now the Dhandhuka Taluka of Ahmedabad, and there occupied all or most of the villages in that Taluka. In course of time, the estate which had been undivided became split up into different Talukdari estates by the process of allotment of villages for Jivai or maintenance to younger male members of the family of the chief. The history and constitution of these Talukdari families and estates was the subject of very prolonged and searching investigation prior to and subsequent to the passing of the Ahmedabad Talukdars Act of 1862, and one of the Officers chiefly concerned in the investigation was Mr., after-wards Sir, James Peile, a Talukdari Settlement Officer. In 863, in making a report of his survey operations to the Revenue Commissioner under date the 15th September he stated: "The way in which these Talukdars are formed by partition from a sovereignty or chieftainship is very clearly shown in the appended pedigree of the Gamph Thakors to whom all Dhandhuka at one time belonged. The allotment in each generation of one or two villages apiece to the one or more younger brothers of the Thakor of the day has, in the lapse of years, left the mutilated trunk of the chieftainship with only eight villages and halves of two others." The pedigree referred to in that report shows that Melaji, the son of Raisingji, had two uncles, who as junior members of the family each received a village. His uncle Kakabhai received Ankewalia and his uncle Babhoji Piperia. But before his death Ankewalia and Piperia had reverted to the ruling branch, to the branch of the chief, and, accordingly, Melaji was able to assign Ankewalia to Arjansingji and Piperia to Rupsingji. Rupsingji had two sons, or his widows claimed that he had two sons, Keshrisingji and Kaliansingji, and in the year 1870, there was litigation between the established successor of Melaji, namely, Raisingji and the two sons of Rupsingji with reference to the village of Piperia. Raisingji contended that Keshrising and Kaliansing were both supposititious children, not the real sons of Rupsingji, and that Rupsingji having died without male issue, the village of Piperia reverted, as it had previously reverted in Melaji s time, to the Thakor of Gamph. The litigation between Raisingji and the two alleged children of Rupsingji resulted in a settlement in the year 1871 under which 41 acres of the village of Piperia were admitted to be the absolute property of the Thakor of Gamph, while the rest of the village, except four annas share which belonged to certain Mahomedans, was confirmed to Keshrising and Kaliansing, and, as a result of that settlement, Keshrising and Kaliansing until their deaths enjoyed the greater part of the village of Piperia. Keshrising predeceased Kaliansing and Kaliansing died in October 1903, leaving a widow Bai Devba, the original first defendant in this suit. According to the contention of the plaintiff, Kaliansing and Keshrising having neither of them left male issue there was reversion of the whole of the village, which remained with them in their life-time, to the Thakor of Gamph. The widow of Kaliansing, however, after her husband s death, namely, in March 1904, adopted the and defendant as the son of her deceased husband. The 3rd defendant claims as a mortgagee of the village of Piperia. She obtained an assignment on the 13th of April 1906 of the mortgage rights of Lerabhai Malichand who had obtained the mortgage with possession of the village of Piperia from Kaliansing on the 13th of October 1883. Devba died after the institution of the suit and before the decree of the lower Court.

(3.) The main questions in the case are:-(i) whether upon the death of Kaliansing without male issue the village of Piperia as held by him reverted to the Thakor of Gamph; or whether his adopted son, the 2nd defendant, has a right to remain in possession and ownership of the village as against the Thakor of Gamph who claims the right of resumption; and (2) whether the mortgagee who represents the interest under the mortgage created by Kaliansing has any title which he can assert successfully against the Thakor of Gamph since the death of Kaliansing.