Full Judgment
Basil Scott, C.J.
1. The plaintiff sued for a declaration that he was the eldest son of a deceased Vatandar Police Patil who died two years and a half previously, stating that the cause of the suit was that in a dispute between him and the defendant the Collector had ruled that the defendant was the eldest son and that the plaintiff's name could not be entered as Vatandar Patil unless he established his right as eldest son by a decree of the Court.
2. It is contended on behalf of the defendant that this suit is not maintainable by reason of the provisions of the Bombay Hereditary Offices Act (Bombay Act III of 1874).
3. The defendant's contention commended itself to the learned District Judge because he considered himself bound by a decision of this Court in Raoji v. Genu 22 B. 344 to decide that he had no jurisdiction. A reference to that decision will show that the ratio decidendi was that the case fell under Section 25 of the Hereditary Offices Act under which the duty is imposed upon the Collector of determining the custom of a vatan and what person shall be recognised as representative Vatandar, and that the relief asked for in the suit involved the determination by the Civil Court of a question which by the section was expressly reserved for the determination of the Collector.
4. Section 36 provides that the person who shall be entered as representative Vatandar after the death of a representative Vatandar is the eldest son or other person appearing to be the nearest heir of such Vatandar. The question who is the eldest son is a question of fact. If the fact be established, the Collector has no choice in the matter unless there appears to be a nearer heir. The conclusive determination of the question whether the statutory condition of eldership or heirship is satisfied becomes, therefore, a matter of importance to a person claiming to be the eldest son or nearest heir, and it is a question which is not by the words of the Act reserved for the exclusive determination of the Collector. This view of Section 36 was taken by this Court in Dalpat Jogidas v. Punja Zipa (Unreported) S.A. No. 298 of 1903 where upon review it was held that a suit for a declaration that the plaintiff was the nearest heir of a deceased representative Vatandar was maintainable notwithstanding that it was manifest that the declaration was sought for the purpose of establishing a fact which would enable the plaintiff to have his name entered in the Vatan Register.
5. I, therefore, reverse the decree of the District Judge and remand the case to him for disposal on the merits. Costs to be costs in the cause.