The material facts are set out in the judgment.
Patkar, J.:—
This is a suit brought by the plaintiffs, the daughters of one Huchava, for a declaration that they are the nearer heirs to the deceased last holder of the Watan than defendant No. 2, and entitled to the properties described in the plaint, and for an injunction against defendant No. 2 not to disturb their possession of the plaint lands, and praying that the Government Resolution, Revenue Department, No. 705 dated August 15, 1924, be set aside to the extent stated ??? the plaint.
The pedigree of the family is as follows:—
After the death of Narayan, his eldest son Dundappa succeeded to the share of his father in the Watan property and service rights. Dundappa was succeeded ??? his brother Huchappa. In 1877 Huchappa having ??? without leaving a widow or a son, his mother Yamnabai succeeded to the property. Yamnabai ??? in 1883 and was succeeded by her daughter Huchava, the mother of the plaintiffs. At the ??? of the death of Yamnabai, Bombay Act V of 1886 ??? not in force. Huchava died in 1922, and after her ??? the question arose as to who should succeed to her as the representative Watandar of the 8 annas share and the service rights. It is admitted in Exhibit 52, the purshis of the plaintiff's pleader, that defendant No. 2, Ramchandra, the grandson of Dodappa, is an 8 annas sharer in the Watan, and that the deceased Huchava, the mother of the plaintiffs, and defendan No. 2 are descended from the common ancestor Balappa. It is also admitted by defendant No. 2 in Exhibit 5 that there were no members, male or female, in Huchava's husband's family at the time of Huchava's death except the plaintiffs who are Huchava's daughters. The Collector held that under section 2 of Bombay Act ??? of 1886, the daughters were to be postponed to the ??? members of the Watan family qualified to inherit ??? Watan, and directed the name of defendant No. 2 to ??? entered as the representative Watandar. The Commisioner on appeal held that the male members of ??? father's family could not claim the Watan in preference to her daughters, and held that it is only in ??? absence of any heirs, male or female, on her husband side that the paternal kinsmen would succeed as ??? ultimate reversioners in preference to Government. The Government, acting on the opinion of the Legal remedy brancer, held that Ramchandra, defendant No. 2, ??? the preferential heir and was entitled to succeed preference to the plaintiffs, Gundava and Tipava. The plaintiffs, therefore, brought the present suit.
The learned District Judge held that Ramchand defendant No. 2, was a male member of the ??? family and that the Watan family was the family Balappa and not of Bhimbhat, the husband of Huchava and that it was the intention of the Legislature that Watan should not pass out of the Watan family, therefore, held that the Government Resolution correct in deciding the question, and dismissed plaintiffs' suit.
The first question arising in this case is whether the present suit is barred by section 4 of the Bombay Revenue Jurisdiction Act X of 1876. The section runs as follows:—
“4. Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters:—
(a) claims against Government relating to any property appertaining to the office of any hereditary officer appointed or recognised under Bombay Act No. III of 1874 or any other law for the time being in force, or of any other village-officer or servant, or
claims to perform the duties of any such officer or servant, or in respect of any injury caused by exclusion from such office or service, or
suits to set aside or avoid any order under the same Act or any other law relating to the same subject for the time being in force passed by Government or any officer duly authorised in that behalf ….”
In Ramchandra Dabholkar v. Anant Sat Shenvi ??? was held that under the Watan Act as under the law ??? to it, the Civil Court has jurisdiction to ??? a suit to be declared a Watandar, and that Bombay Act III of 1874 in giving the Collector jurisdiction to pronounce who amongst the Watandars shall ??? representatives, does not give him jurisdiction to determine who, in disputed cases, shall be Watandars within the definition given in the Act, and that when ??? list of Watandars is either undisputed or settled ??? the decree of the Civil Court, the Collector derives jurisdiction under the Act to determine which of them all be their representative. In Govind Sitaram v. Bapuji Mahadeo, Ramchandra Dabholkar's case ??? followed and it was held that it has long been entitled that the Civil Court has still the power to declare ??? plaintiffs' right to the status of Watandars. In Yellappa v. The Secretary of State for India it was ??? that so far as the plaintiffs seek to have their own ??? to officiate declared, the Civil Court has no jurisdiction since the passing of Act III of 1874. The Act, ???, would not take away the jurisdiction of Civil Courts to determine who were entitled to be on the list of Watandars, and that the discretion of the Collector only came into play when those who are to be its subjects are determined. In Ramrao v. The Secretary of state for India it was held that although Act III of 1874 gave large powers to the Collector, and the Bombay Revenue Jurisdiction Act X of 1876 deprives Civil Courts of jurisdiction as to many matters, there are ??? certain matters over which jurisdiction is still left to be exercised by Civil Courts and from which the jurisdiction of the Collector is excluded and one of these is the determination of the status of being a Watandar, and that the Collector could only determine what person shall be recognised as representative Watandars. ??? Rahimkhan v. Dadamiya the learned Chief Justice ??? Basil Scott held that section 25 of the Hereditary Offices Act imposes the duty upon the Collector of determined the custom of a Watan, and what person shall ??? recognised as representative Watandar and that a ??? for a declaration that the plaintiff is the nearest ??? of a deceased representative Watandar is maintainal under section 36 of the Act notwithstanding that it manifest that the declaration is sought for the purpose of establishing a fact which would enable the plaintiff to have his name entered in the Watan Register. ??? Shankar Babaji v. Dattatraya Bhiwaji it was held ??? a suit for a declaration that the plaintiff is the near heir of a deceased representative Watandar is within the jurisdiction of a Civil Court although a declarat that the plaintiff is entitled to have his name entered in the Watan Register is a matter beyond the jurisdiction of the Court. It would follow from these cases ??? the Civil Courts have no jurisdiction in the ??? which are within the exclusive jurisdiction of Collector, namely, the duty to determine the custom of the Watan and what persons shall be recognised as representative Watandars under section 25 of the Hereditary Offices Act, and to specify the names of the heads the of the family and the proportionate part possessed by each head in preparing the register under section 67 of the watan act. The Civil Courts have the right to declare the plaintiffs' right to the status of a Watandar, and to declare that the plaintiff is the nearest heir of the deceased representative Watandar. Clause (3) of section 36 of the Bombay Hereditary Offices Act makes specific reference to a certificate of heirship or a decree or order of a competent Court. Before the amendment of the section, a certificate of heirship or a decree of a competent Court was, until revoked or satisfied, conclusive proof of the facts stated or determined in such ertificate or decree. The amended section provides that ??? at any time any person shall, by production of a certificate of heirship, or of a decree or order of a competent Court, satisfy the Collector that he is entitled to ??? his name registered as the nearest heir of such deceased Watandar in preference to the person whose ??? the Collector has ordered to be registered, the collector may, subject to the foregoing provisoes cause entry in the register to be amended accordingly. Section 36, clause (3), therefore contemplates that a person who is dissatisfied with the order of the Collector under section 36 may bring a suit in a competent Civil court for a declaration that he is the nearest heir of the deceased. Watandar in preference to the person whose ??? the Collector has ordered to be registered.
It is urged on behalf of the respondents that the ??? cases must be considered to have been overruled ??? the decision of the Privy Council in Laxmanrao v. Shrinivas, where their Lordships, after quoting the provisions of section 4 of the Bombay Revenue Jurisdiction Act X of 1876, observe (p. 1495):—
“In their Lordships' opinion these words are wide enough to preclude the Courts from entertaining any claim to the watan offices in opposition to the claim of the hereditary officers recognised or appointed under the Act, and also any claim for the cancellation of the Watan Register. To this extent, therefore, the plaintiff's case must fail.”
The cases referred to above have not been referred to by their Lordships of the Privy Council and have not been expressly overruled. I do not think that the decisions referred to above have been overruled by the decision of the Privy Council for they observe that the word of the section are wide enough to preclude the Court from entertaining any claim to the Watan offices, and also any claim, for the cancellation of the Watan register. The cases above referred to refer to a declaration that the plaintiff is a Watandar or the nearest heir ??? the deceased representative Watandar. So far as the plaintiffs' claim to perform the duties of any office, ??? the claim for the cancellation of the Watan register concerned, the words of section 4 are wide enough ??? preclude the Civil Courts from entertaining such clair. However, the present suit is for a declaration that ??? plaintiffs are the nearest heirs of the deceased representative. Watandar, and such question is express reserved for determination by the Civil Court after ??? decision of the Collector, under section 36, clause ??? of the Watan Act. I think, therefore, that the plaintiffs' suit, so far as it is for a declaration that ??? plaintiffs are the nearest heirs of the deceased representative Watandar, is not barred by section 4 of ??? Bombay Revenue Jurisdiction Act X of 1876. The declaration can be claimed against defendant No. 2 a suit brought specifically for that purpose, and to ??? a suit neither the Government nor the Collector is necessary or proper party.
So far as the relief to set aside the Government Resolution is concerned, we think that the suit is ??? under section 4 of the Bombay Revenue Jurisdiction Act. Section 4(a), clause 1, refers to claims against Government relating to any property appertaining to the office of any hereditary officer appointed or recognised under Bombay Act III of 1874, and clause (3) refers to suits to set aside or avoid any order under the same Act passed by Government or any officer duly authorised in that behalf. The order sought to be set aside in the present suit was passed by Government under their revisional powers under section 36 of the watan act. The suit, therefore, brought against Government must fail.
The question then arises whether the plaintiffs' claim for a declaration that the plaintiffs are the nearest heirs of Hutchava, the deceased last holder of the Watan, ??? maintainable against defendant No. 2. It is urged ??? behalf of the respondents, relying on the decision ??? Fawcett, J. in Sagunappa v. Bhau Annaji, and he remarks in Baslingappagouda v. Secretary of State, that even if the case be treated on the ??? that the Secretary of State was not a party ??? the suit and that it was merely a private dispute between the plaintiffs and defendant No. 2 as to whether the plaintiffs were Watandars, such a declaration should not be granted as there is an order against ??? plaintiffs passed by the Collector and by the Government, and that the plaintiffs cannot succeed without ??? aside the order of the Government. The ??? of Yellappa v. The Secretary of State for India and Ramrao v. The Secretary of State for India were suits against Government in which the declaration as to the plaintiff's status as Watandar was granted. The present suit is brought for a declaration at the plaintiffs are the nearest heirs of the deceased representative Watandar in accordance with the express provisions of proviso (3) to section 36 of Bombay Act III of 1874. Fawcett, J. in Sagunappa v. Bhau Annaji, observes:—
“Then again rulings (suits?) in regard to the right to be recognized as the heir of a deceased watandar and therefore to be registered in his place in the Watan Register kept by the Collector, are clearly cognizable by the Civil Courts in view of the express provisions of proviso 3 to section 36 of Bombay Act III of 1874.”
Section 36, clause (3), contemplates the existence of an order of the Collector and the maintainability of a civil suit for a declaration that the plaintiff is the nearest heir of the deceased representative Watandar preference to the person whose name the Collector has ordered to be registered. See Rahimkhan v. Dadamiya and Shankar Babaji v. Dattatraya Bhiwaji. I think therefore, that in the present suit a declaration can ??? granted in favour of the present plaintiffs if it ??? established that they are the nearest heirs of the deceased representative Watandar as against defendant No. ??? whose name has been ordered to be registered by the Collector.
The question, therefore, arises whether the plaintiff as the daughters of Huchava are entitled to a declared that they are the nearer heirs of the decease representative Watandar Huchava in preference ??? defendant No. 2 whose name is registered by ??? Collector. It is common ground that in determined this question the Collector and the Civil Court have recognize the provisions of section 2 of Bombay Act ??? of 1886. It is urged on behalf of the respondents ??? the plaintiffs are female members of the Watan family and, therefore, would be postponed in the order of ??? cession to the Watan or any part thereof to defendant No. 2 who is the male member of the Watan family qualified to inherit such Watan or part thereof or interest therein. Defendant No. 2 is admittedly an eight annas sharer in the Watan family. It is admitted by the plaintiffs by Exhibit 52 that the mothe of the plaintiffs and defendant No. 2 are descended from the of state common ancestor Ballappa, the original Watandar, and defendant No. 2 is an eight annas sharer in the Watan. The present suit relates to the eight annas share of the other moiety of the Watan. The question, therefore, is whether defendant No. 2 is a male member of the family qualified to inherit part of the Watan. Under section 4 of the watan act, “family” includes each of the branches of the family descended from an original Watandar. In Huchangouda v. Kallawa the contest was between the ??? of the last male holder of half of the Patilki ??? lands and the defendants who were the holders of the other half, and the plaintiffs, though females, were held to be entitled to succeed in preference to the defendants on the ground that though there was a ??? ancestor from whom both the families were descended, it was not shown by the defendants that the common ancestor was the holder of the Watan lands. In the present case it is admitted that the plaintiffs' Mother and defendant No. 2 were descended from the original Watandar Balappa, and therefore, it would follow that defendant No. 2 would be a member of the original Watan family but the succession in the present ??? is not to the last male holder of the family but to ??? female last holder who has gone into another family. ??? Balai v. Subba the contest was between the illegitimate daughter and the illegitimate son of the last ??? holder, and it was held that under Act V of 1886, section 2, the son was entitled to preference over the daughter. There was no contest between the heir of the last female holder and the collateral belonging to the original Watan family. In Bai Laxmi v. Maganlal the contest was between the female members of a branch the of the ??? family, and the defendants who were the of male collaterals of another branch of the family but not descended from a common ancestor who was a Watandar. If the Watan family referred to in section 2 of Act V of 1886 be considered to be the family of Balappa and the plaintiffs be considered to be female members of the family of Balappa, it would follow that the plaintiffs would be postponed in the order of succession to defendant No. 2 who is a male member of the Watan family. But plaintiffs are not the female members ??? the family of Balappa but are female members of the family of Bhimbhat, the husband of Huchawa. It ??? contended on behalf of the appellants that the Watan having gone to Huchawa who went by marriage ??? another family, the nearest heirs of Huchawa must ??? found in the family of her husband, Bhimbhat, and ??? in the family of Balappa. Huchawa was admittedly representative Watandar. Under section 4 of the watan act, “Watandar” means a person having hereditary interest in a Watan, and it includes a ??? holding Watan property acquired by him before ??? introduction of the British Government in the ??? of the Watan or legally acquired subsequent to ??? introduction and a person holding such property ??? him by inheritance. Huchawa would, therefore, be Watandar and her family would be a Watandar family. The definition of “the family” in section 4 is an ??? definition and does not exclude the application of ??? ordinary meaning of the word “family.” See ??? Laxmi v. Maganlal and Balai v. Subba. If ??? the act v of 1886 the heirs are to be ascertained out the family of the last female registered Watandars. Huchava, the question arises whether defendant No. 2 is qualified to inherit to Huchava.
It appears that the personal law of Watandars relating to matters of succession is governed by positive enactments. In Bombay Regulation XVI of 1827, there was no provision affecting the right of females to inherit. In the old Regulation XVI of 1827, as interpreted by the Sadar Dewani Adaulat, the female heir was ineligible to hold any Watan. Under act xi of 1843, section 10, the female was declared to be incapable of performing any personal duties of any hereditary office. A remedy was laid down in section 11 of the Act by making provision for the appointment of a leputy if the hereditary officer be incapable of personally discharging the duties of his or her office by reason of sex, minority, mental or bodily infirmity or manifest ???. Since Act XI of 1843, females could inherit he Watan and they were allowed to appoint deputies ??? perform service. The Act of 1874 made no change ??? the law then existing, and the right of the females ??? inherit was recognized by the Civil Courts and was ??? by section 51 of Bombay Act III of 1874. Act ??? of 1886 was passed in order to prevent watans ??? into the families of strangers. It appears that it ??? first proposed that females should be altogether ??? from inheriting Watan property, but later on ??? the bill was finally passed, the proposed total ??? was modified, and female heirs other than the widow were only postponed in order of inheritance to ???. It was held by Ranade, J., in Krishnaji v. ???, as follows (p. 489):—
The express object kept in view was to prefer even remote male ??? to females in the order of succession, and female heirs were allowed to one in as heirs with a view to avoid escheat. The effect of the Act is, ???, obviously not a mere postponement in the order of time, but, a ??? of one set of heirs to others …. The Assistant Judge has been led to think that the object of the provision was only to prevent lapses to the State. The history of the previous legislation, however, shows that this was only a secondary object. The chief object was to ensure that vatan property should be in the hands of male heirs who can render personal service in preference to females.”
In the present case the estate which was inherited by Huchawa was an absolute estate. It is argued on ??? of the respondents that even assuming that Huchava be considered to be a fresh stock of descent, defendant No. 2, who is a member of the Watan family, is ??? qualified to inherit part of the Watan which came ??? inheritance to Huchava. The property being the stridhan of Huchava, her heirs would be first, he daughters, then daughter's daughters and daughter’ sons, sons and son's sons, and in the absence of any ??? her stridhan would pass, if married in an approve form, to her husband and her husband's heir i.e, those who are nearest to her in he husband's family, and if she was married in a unapproved form, to her parents and those who ??? nearer to her in her father's family. The presumption is that Huchava was married in an approved form, ??? in the absence of any issue her property would go to ??? husband and after him to her heirs in the husband family only. It is urged on behalf of the respondent that on failure of the husband's heirs, it goes to ??? blood relations in preference to the Crown, and ??? is placed on the cases of Kanakammal v. Ananthamat Ammal, Ganpat Rama v. Secretary of State of India, and Moti Chand v. Kunwar Kalika ??? Singh. It is argued that defendant No. 2 thou not a member of Bhimbhat's family, is a member of Watan family of Balappa, and is qualified to ??? part of the Watan as heir of Huchava in preference the Crown. It is urged on behalf of the appellants ??? plaintiff No. 1, Gundawa, has left two sons, ??? and Jayaji, the daughter's sons of Huchava, who would exclude defendant No. 2 who is a blood relation of Huchava entitled to inherit in preference to the Crown. It appears, therefore, that defendant No. 2 is not qualified to inherit part of the Watan vested in Huchava on account of the existence of daughter's sons who would exclude defendant No. 2. In Rahimkhan v. Fatu Bibi it was held that section 2 of Bombay Act V of 1886 is not retrospective, and a Watan devolved on the widow and daughter of a deceased Mahomedan as his heirs, and each having become owner of her share in it, in so far Watan can be held in ownership, it was held that on the death of the widow in 1890 leaving no qualified male heirs, the daughter was entitled to succeed as her heir. It would follow from that decision that where a female Watandar inherited the property as absolute property before Bombay Act V of 1886 came into force, her heirs would be entitled to succeed, males probably in preference to females. In Balai v. Subba the contest was between the illegitimate daughter and the illegitimate son of the last female representative Watandar, and there was no contest between the heirs of the last female Watandar and the collaterals descended from the original Watandar. In Chanbasangauda v. Fakirgauda this Court confirmed the decree of the ??? Court which in effect held, following the decision in Rahimkhan v. Fatu Bibi, that plaintiff No. 1, the husband of Sankawa, who was the last registered Watandar, had a preferential right as between himself and the defendants who were the male members of the original Watan family. I think, therefore, that having regard to the decision in Rahimkhan Fatu Bibi and the decision in Chanbasangauda Fakirgauda, which confirmed the decision of the lower Court, that the inheritance has to be traced to Huchava who became a fresh stock of descent. The question, therefore, is, whether the daughters of Huchava are to be postponed to defendant No. 2 who belongs to the original Watan family and who is qualified to inherit as a blood relation in preference to the Crown. The existence of the daughter's sons as heirs of the deceased Huchava would preclude the right of defendant No. 2 member of the Watan family qualified to inherit to Huchava. Defendant No. 2 is not, therefore, qualified to inherit to the part of the Watan which was the absolute property of Huchava. No question of postponement, therefore, arises in the present case. Under section 2 of Act V of 1886, the female member must belong to a Watan family and the male member must also belong to the family, i.e, the Watan family to which the female member belongs and must also be qualified to inherit such Watan or part of a Watan in order that the female member should be postponed to the male. In the present case, the plaintiffs do not belong to the Watan family of Balappa but belong to the family of Huchava and her husband Bhimbhat. Defendant No. 2, though he is a member of the Watan family of Balappa, has no connection with the family of Bhimbhat of which the plaintiffs are the female members. Further, defendant No. 2 is not qualified to inherit the part of the Watar which was the absolute property of Huchava, as there are in existence daughter's sons. The plaintiffs, therefore, cannot be postponed to defendant No. 2. Bombay Act V of 1886 is not retrospective. The effect of the Act is to prevent, after the Act came into force, the passing of Watan property into the family of a strange and to retain it in the original Watan family so ??? as there are male members of the family in existence. The Watan property having once passed into anoth family before 1886, it is not permissible to put a fore construction on the Act so as to make it revert to the original Watan family.
The next question is, whether the plaintiffs, who are the daughters, are to be postponed to the daughter's sons who are the male heirs of Huchava. No doubt the daughter's sons are heirs to the stridhan property of Huchava, but they belong neither to the Watan family of Balappa, the original Watandar, nor to the family of Huchava which must be considered to be the family of Bhimbhat. Gundava being married into another family, Hanmant and Jayaji cannot claim to be members of the original Watan family of Balappa, nor can they be considered to be members of the Watan family of Bhimbhat and Huchava. It is admitted by defendant No. 2 in Exhibit 54 that there are no members, male or female, alive in the family of Huchava's husband except ??? plaintiffs. Though daughter's sons are enumerated ??? heirs of the stridhan property, they take per stirpes and not per capita. See Mitakshara, ch. 2, section 11, ??? 16, Gharpure's translation page 277, and Mayukha, ??? 4, section 10, pl. 21, Gharpure's translation page 133. The allotment of the shares is through their mothers The succession of daughters' sons ??? through their mothers and is mediate succession and ??? immediate succession. It would, therefore, follow ??? the daughter's sons are persons claiming through female and stand in the same category as the plaintiffs ??? are the female members of the Watan family of ???. Assuming, however, that the daughter's sons ??? in their own right, they cannot be said to be male members of the Watan family either of Balappa or himbhat, as their mother plaintiff No. 1 went into ??? family by marriage. Defendant No. 2, thought ??? may be a male member of the original Watan family Balappa, is not a male member of the family of which the plaintiffs are the female members, and is not qualified to inherit part of the Watan which was the absolute property of Huchava on account of the existence of the daughters and daughter's sons as preferable heirs qualified to inherit the part of the Watan. Under the for circumstances, I think that no question of postponement arises in the present case under section 2 of Act V of 1886.
Plaintiff No. 1 is dead. Though ordinarily a decree in a suit should accord with the rights of the parties at the date of its institution, it is incumbent on the Court to take notice of events that have happened since the institution of the suit and mould its decree according to circumstances at the time of the final decree. See Nuri Mian v. Ambica Singh. Even an appellate Court can vary the decree not only for error, but also on grounds which have come into existence since it was passed. See Rustomji v. Sheth Purshotamdas and Sakharam Mahadev v. Hari Krishna. Plaintiff No. 2 is, therefore, the only person entitled to a declaration under clause 3 of section 36 of the Bombay Hereditary Offices Act III of 1874.
I would, therefore, grant as against defendant No. 2 a declaration in favour of plaintiff No. 2 that she ??? entitled to have her name registered as the nearest ??? of the deceased Watandar Huchava in preference ??? defendant No. 2 whose name has been ordered to ??? registered, under proviso 3 of section 36 of the Wata Act. Having regard to the fact that the questio involved in this case is intricate and Government ??? their various resolutions referred to by Mr. Phadnis ??? his Watan Act have taken conflicting views on ??? point, I think that the order of costs should be that ??? plaintiffs and defendant No. 2 should bear their ??? costs throughout.
I would dismiss the plaintiffs' suit with costs throughout as against defendant No. 1 the Secretary of State.
Wild, J.:—The questions in this appeal are (1) whether the plaintiffs should be given the declaration sought for by them, and (2) whether the suit is barred against the Secretary of State for India (defendant No. 1) by section 4 of the Bombay Revenue Jurisdiction Act, 1876.
The declaration sought is that the plaintiffs are nearer heirs of Huchawa than defendant No. 2 and are entitled to the watan property. Admittedly, Huchawa was the last representative watandar and the watan property was her stridhan. Her heirs were, therefore, as shown ??? Mulla's Hindu Law, 6th edition, p. 140, firstly her laughter, secondly her daughter's daughter, and thirdly ??? daughter's son. Obviously, plaintiffs, who are Huchawa's daughters, are heirs nearer to Huchawa than efendant No. 2, who is Huchawa's second cousin, so ??? are plaintiff No. 1's sons who are the next heirs of Huchawa after plaintiffs Nos. 1 and 2. As the sons of plaintiff No. 1 are males and not liable to be postponed ??? section 2 of Bombay Act V of 1886 and as they are ??? nearer heirs to Huchawa than defendant No. 2, defendant No. 2 was wrongly recognized as representative watandar of the senior branch of the watan as he not qualified to inherit as Huchawa's heir owing to ??? existence of nearer male heirs. Defendant No. 2's ??? was under section 36 of the Bombay Hereditary fices Act of 1874 registered as Huchawa's heir because ??? names of plaintiff No. 1's sons were not mentioned fore the Deputy Collector when an inquiry was made to Huchawa's heirs or at the time of the subsequent ???. It was only owing to the chance of plaintiff ??? 1's death in the course of the suit that her sons were ??? on the record as her heirs and their existence ??? discovered. As they are nearer heirs to Huchawa than defendant No. 2 and are not liable to be postponed to defendant No. 2, defendant No. 2 is not a person “qualified to inherit” within the meaning of section 2 of Bombay Act V of 1886. Plaintiff No. 1 is dead and the nearest heir of Huchawa is plaintiff No. 2. She is not liable to be postponed to the sons of plaintiff No. 1 as the watan family is the family of Huchawa's husband. The sons of plaintiff No. 1 are not members of that family as plaintiff No. 1 by marriage passed into the family of her husband. Plaintiff No. 2 is, therefore, not postponed to the sons of plaintiff No. 1 by section 2 of Bombay Act V of 1886 and is entitled to a declaration of heirship.
It is pointed out that in Baslingappagouda v. Secretary of State the Court refused to give the declaration sought for as the suit was held to be barred against the Secretary of State. But with due deference I see ??? reason why, although the present suit is barred against the Secretary of State, a declaration should not ??? given to plaintiff No. 2. Proviso (3) to section 36 of ??? Bombay Hereditary Offices Act 1874 implies that person who has a decree or order of a competent ??? in his favour may satisfy the Collector that he is entitle to have his name registered as the nearest heir of deceased representative watandar in preference to ??? person whose name the Collector has ordered to be registered. This being so, it would seem to be open to plaintiff No. 2 to apply to have the order altered though ??? decree of the Court would not in view of my finding the second question be binding on the Collector. I ??? then that plaintiff No. 2 is entitled to have a declaration that she is the nearest heir of the deceased last hold of the watan and not defendant No. 2 and that she entitled to have her name registered as such.
The second question is, whether the suit is barred by the third paragraph of clause (a) of section 4 of the Bombay Revenue Jurisdiction Act, 1876. The words of this section are very clear that no Civil Court shall exercise jurisdiction as to any of the following matters: “suits to set aside, or avoid any order under the Hereditary Offices Act passed by Government or any officer duly authorised in that behalf.” The present suit is a suit of this nature and one of the reliefs sought is to set aside the Government Resolution that defendant No. 2 is the preferential heir. The effect of section 4 has often been considered by this Court and the results have not always been the same. In some cases suits against Government have been held to be barred and in other cases with the opposite result. All the cases cited for the appellants as showing that there is no bar under section 4 may be distinguished. For instance the cases of Ramchandra Dabholkar v. Anant Sat Shenvi; Govind Sitaram v. Bapuji Mahadeo; Raoji Fakira v. Dagdu; Yellappa ??? Rayapa Patil v. The Secretary of State for India ??? Council and Ramrao Vyasarao Desai v. The Secreary of State for India in Council were concerned ??? the status of watandars and not with the status of epresentative watandars. In the first four cases it was Held that there was no bar to the suit by reason of the Bombay Hereditary Offices Act but no bar under the Bombay Revenue Jurisdiction Act was set up. In the ??? case the bar under section 4 of the Bombay Revenue Jurisdiction Act was considered but it was disallowed ??? it was a case of watandars and not of representative Watandars. In Maganchand v. Vithalrav there was Held to be no bar as the Collector's order was not a valid der and the same reasoning was applied in Bhikaji Laxman… v. The Secretary Of State For India….. Here, however, there is no reason to hold that the order of the Deputy Collector under section 36 and the subsequent orders in appeal were not valid orders. The state of Shankar Babaji v. Dattatraya Bhiwaji, which followed the case of Rahimkhan v. Dadamiya, is a case in which the suit was one practically as here to set aside an order under section 36 of the Bombay Hereditary Offices Act and in that case it was held that the suit was not barred by the provisions of the Bombay Hereditary Offices Act. The bar under section 4 of the Bombay Revenue Jurisdiction Act was, however, not urged or considered. The question whether section 4(a) bars a suit of this kind appears now to be decided by the Privy Council judgment in Laxmanrao v. Shrinivas. This was a suit to set aside the Collector's order passed under the Bombay Hereditary Offices Act and it was held to be barred by section 4(a) of the Bombay Revenue Jurisdiction Act. This ruling is binding on all the Courts in India ??? applies to suits to set aside an order of Government passed under the Bombay Hereditary Offices Act. ??? therefore hold that the present suit is barred as against defendant No. 1, the Secretary of State, by section 4(a) of the Bombay Revenue Jurisdiction Act.
Decree modified.
B.G.R