1. This is an application by Mahadaji Amrita, the mortgagor-decree-holder, in a suit for redemption, No. 274 of 1923, against the order of the Subordinate Judge of Vita on July 9, 1926, cancelling the decree in that suit on a certificate purporting to be under Section 10 of the Watan Act, III of 1874, of the Collector of Satara, and ordering the petitioner to deliver over possession of the land in suit to the Collector or to the judgment-debtor-mortgagee.
2. The relationship between the parties is shown in the following genealogical tree.
3. About the year 1862 and in any case prior to the passing of the Watan Act Bhagirtbibai, the widow of Waman, made a gift to Amrita, the illegitimate son of Balaji, of the watan lands in suit. In 1889, Amrita mortgaged the lands to Joti, opponent No. 2, with possession. In 1908, the matter was taken up by the Collector and the Government Resolution No. 5717, Kevenue Department, was passed on June 9, 1908, as follows :
In this case the alienation is of long standing, there was no fraud, and the profits were actually in the possession of the alienee. There was, however, want of proper consideration. The alienation should, therefore, be declared null and void, but instead of transferring the possession of the land, the mortgagee should be required to pay the full rent to the watandar.
4. In 1920, the petitioner Mahadaji instituted Suit No. 65 of 1920, in the Subordinate Court at Vita against the mortgagee Joti for redemption and obtained a declaration that Rs. 1,100 were due. “The mortgagee did not, however, give up possession. The petitioner brought a second suit, No. 274 of 1923, and obtained a decree for possession, which, on the certificate of the Collector dated March 27, 1926, has been set aside by the Subordinate Judge and the order above complained of made.
5. It is argued for the petitioner that the watandar not being party to the decree in Suit No. 274 of 1923 and it being between strangers to the watan, Section 10 has no application, and that in any case, the latter part of the order directing that the plaintiff should deliver over possession is ultra vires. It is argued for the opponent that the Government Resolution of 1901 sets aside the alienation or alienations, and the mortgagee, opponent No. 2, has practically violated the understanding on which alone he was allowed to remain in possession by Government from 1908.
6. It is not clear from the Government Resolution of 1908 whether the alienation declared null and void was the alienation by Bhagirthibai in favour of Amrita or the mortgage by Amrita in favour of opponent No. 2. To the former alienation made prior to the Act, Section 9 of the Watan Act would apply but not to the latter to which Section 11, at the most, would be applicable. At the same time, the Resolution purports, instead of transferring possession, to take the full rent which points to Clause (2) of Section 9, rather than to Section 11, and if so, to the gift by Bhagirthibai being declared null and void and not the mortgage by Amrita.
7. But however that may be, although Section 10 in terms only requires that the ownership or beneficial possession should pass into the hands of a person other than an officiating watandar for the time being, and although it does not in express terms require that the possession should so pass under a decree against the watandar, it has been held by this Court since 1888 in Shankar Gopal v. Babaji Lakshman (1888) I.L.R. 12 Bom. 550 and in Bhau Balapa v. Nana (1888) I.L.R. 13 Bom. 343 that the object of Section 10 was to give practical effect to the prohibition against alienations by watandars as provided by Sections 5 and 7, and where both parties to the decree were strangers Section 10 had no application. The other view permitting intervention by the Collector in decrees to which the watandar is not a party would widen the scope of Section 10 beyond the bounds contemplated by the Legislature and might lead to undesirable results.
8. In the present case, the watandar was not a party to the decree in Suit No. 274 of 1923, and, in our opinion, Section 10 and the certificate purporting to be under that section had no application, and in any case, the Subordinate Judge had no power even under Section 10 to pass the order compelling the plaintiff to deliver over possession to the Collector or the mortgagee.
9. The application must, therefore, be allowed, and the order of the Collector Subordinate Judge of July 9, 1926, be set aside. But we notice that even in the application made to the Court it was expressly stated that if possession could not be given to the watandar Yashwant, an order for payment of full rent should be passed, similar, we presume, to the order of the Government Resolution of 1908. We understand from the learned Counsel for the petitioner Mahadaji that he is willing to make the same payment to the watandar, that the mortgagee made. The fair arrangement, in our opinion, would be that the petitioner should take ihe land subject to the same payment as the mortgagee made. By this arrangement it would not matter to the watandar so long as he gets the full rent whether the possession is with opponent No. 2 or with the petitioner.
10. The petitioner will get his costs in both the Courts from the Collector.