SYED AHMED MOHIDEEN RAZVI Vs. THAKIRUNNISSA BEGUM

JUDGEMENT

(1.) THIS is an appeal against the judgment of Ramaswami Gounder, J., in A.S. No. 619 of 1952. It arises out of a suit filed by the respondent against the appellant for recovery of possession of the suit properties together with mesne profits. The plaintiff is the widow of one Syed Jaffar Mohideen, the brother of the defendant. It is common ground that the suit property formed part of an inam in Jagir Gurivinayanapalli which was attached to the office of the Kazi of Baramahal. Though the original grant is not available, sufficient information is to be found in the certified extract from the Inam Register (Exhibit A -37 - Exhibit B -1). The entries in the Inam Register show that the inam comprised about 765 acres and was granted "for performing the duties of Kazi in the Baramahal division". It was confirmed tax -free for the service of the Kazi of Baramahal. In 1810 one Syed Abdul Razack appears to have been appointed as the Kazi of Baramahal and all inams and other emoluments of the said Kazi office were directed to be put in his possession under an order of Government. Abdul Razack had three sons of whom the eldest, Syed Jaffar Mohideen, was appointed Kazi after the death of Syed Abdul Razack. Jaffar Mohideen continued in that office till he died in 1893, and after his death his eldest son Abdul Razack was appointed Kazi (Exhibit B -2); but it must be noticed that he was not appointed Kazi of Baramahal division but as Kazi for the area comprising Tirupattur taluk (excluding Vaniyambadi and the neighbourhood) and Uttankarai division of the Uttankarai taluk in the Salem District. This Abdul Razack the Second died in 1933 leaving behind him his brother Fazlullah who had three sons, Jaffar Mohideen, Mohideen Hussain and the present defendant, and a daughter by name Unnissa Bi. The plaintiff is the widow of this Jaffar Mohideen. Mohideen Hussain died in 1943. After the death of Abdul Razack the Second in 1933, the defendant was appointed by the Government as Kazi (Exhibit B -7) again not for Baramahal but for the Tiruppattur taluk excluding Vaniyambadi and neighbourhood in the North Arcot District and Uttankarai sub -taluk of the Harur taluk of the Salem district. The defendant asserting his exclusive title to the entire inam filed a petition before the Collector praying that the inam may be registered in his name; but his petition was dismissed and he was directed to establish his right in a civil Court. The defendant thereupon filed a suit against his two brothers and sister, O.S. No. 21 of 1937 in the Court of the Subordinate Judge of Salem, praying for a declaration that he was entitled to the entire property comprised in the inam and for possession of the same. The suit was not disposed of after contest but was concluded by an arrangement between the parties, the terms of which were that the properties were treated as the ancestral family properties and were divided into four shares, each of the three brothers and the sister keeping a fourth share. This arrangement was embodied in a deed of partition, dated 23rd February, 1940 (Exhibit A -1). In view of this arrangement the suit which had been filed by the defendant was agreed to be withdrawn and it was accordingly not pressed and dismissed on 21st March, 1940. The suit properties were those that fell to the share of Jaffar Mohideen, the plaintiff's husband at this partition. Jaffar Mohideen first executed a lease and then a conveyance in favour of his wife, the plaintiff (Exhibits A -2 and A -3). Though the defendant was a party to the partition arrangement he began to interfere with the possession of the suit properties by the plaintiff's lessees and so the plaintiff filed the suit for a declaration that she was entitled to the suit properties and for recovery of possession from the defendant. The main plea in defence with which we are now concerned in this appeal was that the suit properties formed the Kazi service inam and when the defendant was appointed Kazi on 24th July, 1934, by the Government he became entitled to be in possession of all the suit properties and other properties forming kazi service inam, and being a service inam it is only the holder of the office who was entitled to it. The defendant further pleaded that the partition deed did not represent a bona fide transaction but was entered into for ulterior purposes. Apart from these pleas, there is a further legal plea that the service inam was not alienable as the lands were an appanage of the office, and therefore a partition or alienation of the properties is void and inoperative in law as opposed to public policy. The learned Subordinate Judge who tried the suit held that the suit lands which admittedly formed part of the Kazi service inam intended for the Kazi of Baramahal was inalienable and impartible, and though the partition entered into in 1940 between the members of the family was true, it was not valid and binding on the defendant, and likewise the lease and the conveyance to the plaintiff by her husband were not valid and binding on the defendant. On the said findings the plaintiff's suit was dismissed. The plaintiff filed an appeal to this Court, A.S. No. 619 of 1952 from the decree and judgment of the learned Subordinate Judge of Salem. The appeal to this Court eventually came on for hearing before Ramaswami Gounder, J. He thought that the appeal could not be satisfactorily disposed of without a finding on the question "whether under the order, Exhibit B -7, the defendant was appointed to the office of Kazi for the Baramahal division". The learned Subordinate Judge of Salem was directed to submit his finding on the question after permitting the parties to let in any further evidence if they chose to. The plaintiff did not let in any further evidence; but the defendant besides examining himself examined two other witnesses D.Ws. 7 and 8. The learned Subordinate Judge submitted the following finding:

(2.) THE contention of Mr. D. Ramaswami Ayyangar, learned Counsel for the appellant, was that the lands in suit formed part of a Kazi service inam and as the service of a kazi is in the nature of public service an inam granted for such purpose is impartible and inalienable, as the inam forms an appanage of the office. It is now well established that lands attached to a hereditary village office is inalienable. Section 5 of the Madras Hereditary Village Service Act embodies this rule. On principle the same restriction would apply to lands granted for public services, not covered by that Act. In Lakshmadu v. Ramudu, I.L.R. (1940) Mad. 123, it was held that lands granted by way of dasabandam inam were i »alienable, as an alienation of such an inam was against public policy and void. The decision of the Full Bench in Anjaneyalu v. : AIR1922Mad197 , which dealt with lands burdened with swastivahakam service has been held to cover all service inams of a public nature vide Ramakrishnamma v. Venkatasubbiah, (1934) 68 M.L.J. 46 :, I.L.R. Mad. 389 . The general principle is that it is quite opposed to the nature of the interest and duty of the public servant that he should part with it, leaving himself without the means of subsistence and without further interest in the place or in the performance of the services. The decisions relied on by Mr. Gopalaswamy Ayyangar in Venkatarama Ayyar v. : AIR1921Mad292 and Vaidyanatha Ayyar v. : AIR1927Mad140 deal with inams in the nature of personal maintenance grants and are not opposed to the principle laid down in the catena of cases referred to above.

(3.) THE earliest document we have relating to the nature of the inam is the Inam Register of which an extract was filed in the case (Exhibit A -37/Exhibit B -1). The inam is described to have been granted for performing the duties of Kazi in the Baramahal division. Among the written instruments produced before the Inam Deputy Collector were a certificate of the Court, dated 10th August, 1810, appointing Syed Abdul Razack as the Kazi of Baramahal, an authenticated copy of a Collector's order, dated 1st October, 1813, directing all inams, villages and other emoluments of this Kazi office to be put in possession of Syed Abdul Razack Ahamad Khazi under order of Government, and a certificate dated 16th September, 1856, of a Judge appointing under orders of the Sadar Court Syed Jaffar Mohideen Sahib as the Kazi. The inam was confirmed tax free "for the service of the Khazi for Baramahal".