H.B Datar, J.:—

I submit that Tarabai v. Murtacharya is good law.

The primary definition of the word “watandar” refers to a person having an hereditary interest in the watan, i.e, in the office and the property. The subsequent words are merely explanatory and illustrative of the primary meaning. They cannot give a contrary meaning to what has been said earlier. The earlier words clearly show that a person to be a watandar must have interest in the watan office and watan property, if any. The fact that the Legislature has used the word “means” show that it wants to exhaust the meaning of the word defined. Subsequent use of the word “includes” shows its intention to illustrate the words already used. The use of the words “if any” in the definition of “Watan” shows the possibility of there being a watan without property. But there cannot be a watan without office.

The policy of the watan Act is to remunerate the person doing service by giving him some property and to see that the property and the office go together. Section 5 is enacted for the purpose of providing that property attached to the office should not go out of the family of the watandar for ever. Before the Regulation XVI of 1827, it was possible to alienate both the property and the office. What the Watan Act purports to do is to class only those persons who had acquired the watan property as well as the office by alienation or otherwise before the introduction of the British rule as “watandars”. It is inconceivable that the idea of the Act was to hold persons who had acquired merely the watan property before the introduction of the British Government to be “watandars”.

There is nothing in the definition of “Representative Watandar” to show that the Watan Act makes any distinction between a watandar who merely possesses watan property and a watandar who not only possesses watan property but also the right to perform the duties of the office. The Act makes no distinction between the two classes of persons.

[C.J—The definition of “representative watandar” clearly shows that there can be watandars who do not perform service.]

But they must possess at least some interest in service. There can be many watandars but only one of them is a representative watandar. Others have merely a chance of becoming a representative watandar. This present interest of theirs in the office makes them watandars. See Chinava v. Bhimangauda. For instance, if there are several brothers in a joint Hindu family, the younger brothers are watandars because they too have a chance of succeeding to the office. They are persons having a present interest of an hereditary character in the watan. In Kadappa v. Krishtappa, the alienee had hereditary interest in the office and hence he was a watandar. Refers to Appaji v. Keshav. In Mallappa v. Tokko, the present point was not raised much less discussed. Venkatrao v. Basavprabhu(5) which is in my favour distinguishes Mallappa's case. Tarabai's case(6) was referred to by the Privy Council in Kadappa v. Lingappa(7) but their Lordships have expressed no opinion on it.

Gajendragadkar, J.:—The question which has been referred to the Full Bench lies within a very narrow compass. It relates to the denotation of the word “watandar” used in the Watan Act. It became necessary to refer this question to a full bench because the word “watandar” has received two interpretations which are inconsistent with each other in two reported decisions of this Court. These decisions are Kadappa v. Krishtappa, and Tarabai v. Murtacharya. In his referring judgment the learned Chief Justice has examined this question and has set out reasons in support of the construction which was accepted in Kadappa's case. The question has now been argued before us and I do not think I can usefully add very much to what has been already stated by the learned Chief Justice in his referring judgment. With respect I venture to think that if the earlier decision in Kadappa's case, had been cited before the Bench that decided Tarabai's case, in all probability they would not have accepted the interpretation which was pressed before them by the appellant in the said case.

Now, under the Watan Act the watan properly so-called consists of the watan property, if any, and the hereditary office and the rights and privileges attached to them, and “watandar” means a person having an hereditary interest in the watan. The question which has been referred to the full bench is whether the word “watandar” necessarily and always means a person who has an hereditary interest not only in the watan property, but also in the hereditary office. If the words used in defining “watandar” are strictly and literally construed it would mean that before a person can be said to be a watandar he must have an hereditary interest both in the watan property and in the hereditary office, because it is these two that constitute the watan. But the Watan Act itself adds to the aforesaid definition of watandar by providing that the said word includes a person holding watan property acquired by him before the introduction of British Government into the locality of the watan, or legally acquired subsequent to such introduction, and a person holding such property from him by inheritance. It also includes a person adopted by an owner of a watan or part of a watan subject to the conditions specified in ss. 33 to 35. It is not disputed that before the enactment of the Watan act in 1874 and of regulation xvi of 1827 watans were treated as ordinary property which could be divided and alienated at will. Natuarally the alienation could be with regard to the office and the property or with regard to either of them. The addition made to the definition of watandar clearly provides that a person who may have acquired watan property before the introduction of British Government must be regarded as a watandar. It is significant that it is not required of such a person that he must have acquired the hereditary office along with the watan property; it would be enough if he has acquired watan property and the acquisition of such property would make him a watandar. It would thus be clear that the inclusion of such a person in the category of watandars clearly suggests that it would be enough if the person claiming the status of a watandar is in possession not of the watan property as well as the office, but of the watan property alone. The same considerations may apply to persons who acquire watan property legally subsequent to the introduction of British rule. In their case also it is not necessary that they should have acquired both the hereditary office and the watan property before they could be called watandars under the Watan Act. In Tarabai's case, however, it was held that a person who merely acquires watan property without acquiring the office and without being under any obligation to perform services attached to the office is not a watandar within the meaning of the Act. On the other hand, in Kadappa's case where the Court was dealing with watan property which was impartible and was governed by the rule of lineal primogeniture it was held that the family of the plaintiff and the defendants did not for that reason necessarily cease to be a joint Hindu family, and the defendants had a right by survivorship to the watan property even apart from the right of maintenance. These defendants were held to be watandars though it is clear that they could not claim to have an hereditary interest in the hereditary office itself. It seems to me that the view which was accepted in Kadappa's case is more in consonance with the definition of the word “watandar” as explained by the additions made to it and with the scheme of the Watan Act itself.

S. 5 of the Watan Act prohibited alienations of watan and watan rights. Cl. (a) of sub-s. (1) of s. 5 refers to the watandar in general and provides that it would not be competent to such a watandar to mortagage, charge, alienate or lease, for a period beyond the term of his natural life, any watan, or any part thereof, or interest therein, to or for the benefit of any person who is not a watandar of the same watan without the requisite sanction. If the word “watandar” is construed to mean a person having an hereditary interest in the watan property and the hereditary office it would appear somewhat redundant to provide by cl. (b) of sub-s. (1) of s. 5 that it would not be competent to a representative watandar to alienate any right with which he is invested, as such, under this Act. It Seems to me that the Watan Act contemplates only two classes of persons. One is a larger class of persons belonging to the watan families who have an hereditary interest in the watan property as such and the other a smaller class of persons who are appointed as representative watandars and who are liable for the performance of duties connected with the office of such watandars. The rights of such officiating watandars are specially safeguarded by the provisions contained in s. 5(1)(b) and those in s. 7 and s. 13. Now, the question as to the appointment of representative watandars is dealt with in part 6 of the Watan Act. The provisions contained in the sections in this part show that it is the duty of the Collector to determine the custom of the watan as to service and what persons should be recognised as representative watandars for the purpose of this Act. A register of the names of such representative watandars has to be maintained and they have to be assigned their respective duties. So that strictly speaking it may be somewhat difficult to predicate about persons belonging to the watan family that they have an hereditary interest in the hereditary office as such. That being so it seems to me that it would not be correct to limit the word “watandar” only to this narrow class of persons who can claim to have an hereditary interest both in the watan property and in the hereditary office. Watan property as distinguished from property assigned to the officiator by way of his remuneration has always been treated as property belonging, to the family which is capable of partition but whose alienation is governed by s. 5 of the Watan Act, and all persons belonging to the watan family who have an hereditary interest in such watan property are in my opinion entitled to be called watandars within the Watan Act. With respect, I may point out that was the view which had always been accepted until Tarabai's case was decided. Incidentally it may also be pointed out that the question which directly arose for decision in Tarabai's case was somewhat different. But while dealing with the denotation of the word “watandar” Beaumont C.J was disposed to take the view that there would be no point in providing special protection for watan property unless the watan property was held by a person who was also entitled to hold the hereditary office. That, however, does not appear to be strictly consistent with the provisions of the Watan Act. For instance, s. 5(2) imposes a prohibition against alienation of watan property even though in respect of the office of the watandar a service commutation settlement has been effected, unless the right of alienating such watan without the sanction of Government is conferred upon the watandars by the terms of such settlement or has been acquired by them under the said terms. This would clearly show that even if the watan property is held by a person who has ceased to have any interest in the office as such it would in the absence of any special terms be still subject to the prohibition contained in S. 5(2). It is significant that the word “watan” used in the first part of s. 5(2) means only the hereditary office, while in the second part it means the watan property.

Mr. Datar who appears in support of the view adopted in Tarabai's case has invited our attention to a decision of this Court in Chinava v. Bhimangauda. This decision, however, does not seem to support the interpretation put upon the word “watandar” in Tarabai's case. While dealing with the phrase “persons having an hereditary interest in a watan” this is what Farran C.J observed: (p. 793)

“The ordinary grammatical meaning of the phrase ‘persons having an hereditary interest in a vatan’ is, we think, best observed, and the object of the Act is certainly advanced by confining it to persons having a present interest of an hereditary character in the vatan. In this sense it would include all the co-sharers for the time being in the vatan estate and probably also the sons of co-sharers, who, according to the principles of Hindu law, by birth acquire an interest in their father's ancestral property.”

It would be clear that while interpreting the word “watan” in its context reference is made not to the hereditary office at all, but to the watan estate or property. That being so, in my opinion the answer to the question referred to the Full Bench should be that a person who merely acquires watan property without acquiring the office and without being under any obligation to perform the service attached to the office is a watandar within the meaning of the Watan Act, 1874. In that view it must be held that the case of Tarabai was not correctly decided in so far as it was there held that a person cannot be said to be a watandar unless he has an hereditary interest both in the watan property and in the hereditary office.

Chagla, C.J:—I agree.

Tendolkar, J.:—I agree.

Answer accordingly.

M.W.P