RASA KOUNDAN Vs. JANAKI AMMAL

JUDGEMENT

(1.) DEFENDANTS 1 and 3 are the appellants in this second appeal. The lands in suit of the extent of 5 acres 20 cents were held by the plaintiff's predecessors as Devadasi service Inam for rendering service in a temple. After the enactment of Section 44 -A, by Madras Hindu Religious Endowments Amendment Act (Madras Act v [5] of 1929), the Government disannexed the inam from the service and granted a title deed to the plaintiff on 13 -4 -1931 which is marked as Ex. P -1 in the case. The plaintiff instituted the suit for recovery of possession of the property from the defendants who resisted it on the ground that they had acquired title to the lands by adverse possession. Without referring to the long history of the previous proceedings in the suit, it would be sufficient for the purpose of disposing of this appeal to state that, on an issue remitted for trial by the District Court, it has now been finally determined that the inam grant consisted of both the warams. The only question that remains for disposal in this second appeal is the effect of the enfranchisement proceedings of the year 1931 on on the title of the plaintiff. The contention urged on behalf of the plaintiff in the Court below and which found favour with the learned District Judge is that the inam title deed of 1931 created a fresh title and that the defendants could not resist the suit for possession and rely on long possession which they held when the service tenure subsisted as the title, if any, which was then extinguished under the law of limitation is not the title on which the plaintiff is now seeking to recover possession of the property. It has also been found by the Courts below and it is not disputed before us that the defendants failed to establish a title by prescription as against the Government as they were not in possession for the required statutory period of sixty years. The case has, therefore, to be considered on the footing that the inam grant in favour of the plaintiff's predecessors -in -title comprised both the warams and that the grant is a service grant which was recognised in the inam proceedings of 1860 by the issue of a title deed - -title deed No. 33 - -and that the defendants' only defence is long possession at a time when the service -tenure subsisted. If as contended by the plaintiff, she had acquired a fresh title under the enfranchisement proceedings of 1931 the defendants' prescriptive title which commenced and which was perfected when service -tenure was subsisting would be of no avail as it is not that title on which the plaintiff is now relying to seek to recover possession of the property.

(2.) IT is no doubt true that an enfranchisement of an inam does not always imply a resumption of the original grant and a re -grant of the property. In order to determine in a given case the effect of an enfranchisement, on the title to the property, one has to examine the tenure on which the land was previously held and which was sought to be altered or substituted by a new tenure by the enfranchisement proceedings. If, as in the case of karnam service inam, the lands constitute emoluments attached to the office or as remuneration for the service and annexed to it, the enjoyment of the property follows the title to the office or the liability to render service. The succession to the service may be governed by the ordinary principles of the personal law of the parties, Hindu law as in the present case or may be governed by the Hindu law as modified by statute as in the case of karnam service inam lands. In the case of karnam service inams, it may be mentioned that the only statutory modification is that the claimant has to show that he is entitled to succeed to the office under the Hindu law on the principle of primogeniture but that by itself would not give him an automatic right to the office. His right has further to be recognised and an appointment to the office must be made by the Government because the statute relating to hereditary village officers lays down certain qualifications for a person to get himself appointed to the office even though he may be in the line of succession. In the other cases of service tenures, the succession to the tenure is governed by the ordinary rules of the personal law unless there are statutory modifications; and on principle the emolumentor property annexed to the service in either case follows the office or the service as the case may be. The title, therefore, to the enjoyment of the property rests not upon any independent title to the property but upon the right to the office or the service. There may be other classes of cases where a person holds property hereditarily but with an obligation attached to it to render certain services. In such a case, the title to the property is regulated by the personal law of the parties and wherever the property follows the obligation which is attached to that property also follows so that the title in such a case to the property and the right to enjoyment does not depend upon the right to the office or the duty to render service. To the latter classes of cases the decision in Narayana v. Chengalamma (Chittedipaliem case), 10 Mad. 1 belongs. To the former class the decision of the Judicial Committee in Venkatajagannadha, v. Veerabadrayya, 44 Mad. 643: A. I. R. 1922 P. C. 96, belongs. In Chittedipaliam case, 10 Mad. 1, the dispute was whether the widow in whose favour an inam title was granted in 1865 after the inam was disannexed from service, acquired an absolute title to the property which was the subject -matter of the inam title deed or whether she held the property as a widow succeeding to her husband's estate. If it was her absolute property, the devolution would be different and would not follow the line of succession to the husband's estate. If however the title acquired under the inam title deed is not a fresh title but only a confirmation of the previous title which the husband held and which devolved upon her under the Hindu law the property would devolve after her death upon her husband's heirs. As the obligation to render service was merely an obligation attached to property it was held, having regard to the nature of the paliems tenure that the enfranchisement in favour of the widow did not confer upon her a fresh title to the lands. The unsettled paliems, it may be mentioned, which were considered in that case were never brought under Regulation XXV [25] of 1802 and were never settled, but notwithstanding that fact they stood exactly in the same position as regards the title to the property as the Zamindaries which were dealt with under that Regulation. So far as the proprietary rights are concerned, therefore, the unsettled paliems and the settled zamindaries stood on equal footing as was pointed both in Narayana v. Chengalamma, 10 Mad. 1 and also in Venkata Jagannada v. Veerabadrayya, 44 Mad. 643 : A I.R. 1922 96, it was at one time thought - -and it was the view of Bhashyam Aiyangar J. - -that enfranchisement did not imply a resumption and are grant and that it was always a confirmation of an earlier title. This was the view taken by him, dissenting from the earlier Full Bench ruling in Venkata v. Rama, 8 Mad. 249 in the well -known case of Gunnaiyan v. Kamakshi Ayyar, 26 Mad. 339. His view was based largely upon an examination of the various regulations and also upon the decision in the Paliem case in Narayana v. Chengalamma 10 Mad. 1. This decision was confirmed by a Full Bench of this Court in Lakshmipathi v. B. Chelamayya, 30 Mad. 434: 17 M. L. J. 101 . When the matter went up to the Privy Council in Venkata Jagannada v. Veerabadrayya, 44 Mad. 643: A. I. R. 1922 P. C. 96, the whole question was re -examined and it was held that Venkata v, Rama, 8 Mad. 249 was rightly decided and that the view of Bashyam Aiyangar J. in Gunnaiyan v. Kama -kshi Aiyar, 26 Mad. 339 was erroneous. The decision in Narayana v. Chengalamma, 10 Mad, 1, was explained by their Lordships of the Judicial Committee as standing on an entirely different footing from a case where the lands were attached to a service -tenure like the Karnam's office which was then under consideration. It was pointed out by their Lordships: 'When a Palayam was abolished in so far as the duty of rendering military service was concerned the estate was continued with all its hereditary incidents to the Palayagar in the same manner as if possession by a Zamindar. It was different with regard to the case of a karnam. A hereditary right in a karnam or his family can only, at the utmost, be said to consti -tute a certain spes (as he has only a right to get himself selected to the office) among persons within the area of selection of those eligible for the office. .... The power of selections rests with the administrative officials, who alone are judges of the eligibility of the karnam for the time being, and it is the settled law of Madras that the emoluments in the shape of lands follow the office ex necessitate. Otherwise the holder of the lands might be some person other than the holder of the office as already pointed out. The analogy fails.'

(3.) SECTION 44 -A, Clause (1), provides for various kinds of grants. The first clause relates to granta of laud; the second clause relates to grants of melwaram alone and the third clause relates to grants partly of lands and partly of assignment of revenue. For all these kinds of grants provision is made to enfranchise and to grant an appropriate title deed. Of course the quit rent levied has to be paid to the temple for whose benefit the inam was originally granted. The argument now is that notwithstanding these provisions under Clause (6) of Section 44 -A the right of a person who had acquired title by prescription are protected. Sub -clause (e) states : 'No order passed under Sub -sections (1), (2) and (3) shall operate as a bar to the trial of any suit or issue relating to the right to enjoy the land or assignment of land revenue or produce derived from land as the case may be.' It is difficult to read into this clause an exception in favour of and for the benefit of a person who had acquired title by prescription. It may be that this clause was intended to clear doubts regarding jurisdiction of civil Courts or it mayfoe that, though the enfranchisement was effected rightly, the grant of title deed really enures to the benefit of some other person than the grantee and there may be other questions which it is not possible for the Government to determine in a summary proceeding of the kind contemplated by Section 44 - A. It was intended by this clause to leave open all such questions to be fought out in a regularly instituted suit in a civil Court. It is inconceivable, and it is impossible, in my opinion, to think or to read into this section a saving of the rights in favour of a person claiming that he had acquired title to the property by adverse possession. I say it is impossible because the title which was acquired by prescription and which by the law of limitation operating as a statutory conveyance was the title to the kudiwaram held on service tenure which the predecessor -in -title of the plaintiff possessed in the inam. That tenure was now put an end to by a competent authority and there is an end of the title of the defendants. That title cannot be revived and is not intended to be revived by anything that is stated in Clause (6) of the section. Unless there is an express provision and a clear intention to save such rights, one cannot read into the sub -clause permitting a right of suit an exception in favour of such rights. It is, therefore, impossible for the defendants to sustain the plea that their title by adverse possession would be of avail even against the title which the plaintiff had derived under the inam title deed of 1931. It cannot be disputed that by his annexing the service from the land in 1931 which is an act of enfranchisement the land became available to the Government freed from any previous title which was not available against the Government and it was at theirSibsolute disposal and they could have granted it, as stated already, to any person. The inam title deed therefore recognised the right of the plaintiff to the kudiwaram as well as the melwaram in the properties subject to the payment of the quit rent mentioned in the title deed. In my opinion, therefore, if the distinction between the title to the property and the title to office and service which the property follows for enjoyment by the holder of the office or the person rendering the service is kept in mind there is no difficulty in determining the question when and under what circumstances an enfranchisement of a service inam by Government would have the effect of creating a fresh title upon the grantee. The rules framed by the local Government under the Act also make it clear that when an enfranchisement is made under this section the old title deed should be cancelled and a new title deed should be granted and that is what has been done in this case. Theold title deed 33 was cancelled and in its stead new title deed 3 was granted to the plaintiff.