RAMARU KOCHUNNY KARTHA Vs. KRISHNA MARAR

JUDGEMENT

(1.) THE short question in this case is whether the grant of land on what is known as viruthi (in this case by a temple, on Sankhu viruthi )creates a leasehold right in the property so as to make of it a holding within the meaning of S. 2 (1) of Act I of 1957. THE court below has, answering this question in the affirmative, construed the plaintiff's suit for possession of the land on the ground that the grantee has not merely alienated the land but has ceased to perform the services for which it was granted, as a suit for the eviction of a person from his holding and has stayed it under S. 4 of the Act.

(2.) IN my view the courts has answered the question wrongly. A viruthi is a service inam falling, as observed by Sadasiva Iyer , c. J. , in Kochupilla Kalliani v. Lekshmi Thevi (XXV t. L. R. page 26 at page 29) within the; third of the three classes into which service inams are divided in Lekhmagavda v. Keshav Annaji (I. L. R. 28 bombay 305 at page 309) namely, the grant of an office, the performance of the duties whereof is remunerated by the use of the land. The exact words used by the learned judge in defining viruthi lands are, "lands the bare enjoyment of which is attached to the performance of future services as mere remuneration without any interest in the soil except that of enjoyment and which lands could be resumed on non-performance. " To consider whether such a grant would constitute a lease, I think we might profitably turn to the definition of a lease in S. 105 of the Transfer of property Act. It is true that, as observed by the Court below the grant fulfils two of the three conditions required to constitute a lease, namely, the transfer of a right to enjoy the property, and consideration therefor in the shape of services to be rendered periodically or on specified occasions to the transferor by the transferee. But the third condition, namely, that the transfer is made for a certain time, express or implied, or in perpetuity, does not obtain, for, as we have seen, the enjoyment of the land is merely remuneration for the services, attached to an office and, even if the office be (as in this case it apparently was) a, hereditary office to be held by the family of the grantee, the grant of the land itself cannot be said to be for any certain period or in perpetuity. The grantee is not bound to hold the land for a certain period or in perpetuity and render the services; he can give up the land and the services at will; and the condition of the grant is only that so long as he renders in the services - he can resign or be removed from his office-he can hold the land. The grant enures only for so long as the office is held and the services rendered; it is not as if the grant is for a certain period or in perpetuity with a condition for forfeiture on discontinuance of service.

(3.) I allow the petition with costs, set aside the order of the court below and direct it to hear and dispose of the suit in accordance with the law. Allowed.