SUNDARAJA CHARIAR Vs. ALI MUHAMAD ETHIBAR KHAN SAHIB

JUDGEMENT

(1.) The suit was brought for an injunction restraining the defendants irom interfering with the plaintiff's possession of the suit lands. The plaintiff alleged that he had been the Kudivaramdar of the suit lands prior to 1882 on condition of delivering waram to the landlord and that in 1882 the predecessor-in-title of the defendants executed Ex. A under which the waram was commuted into a fixed money rent and that the defendants claiming to revert to the waram rate, were interfering with the plaintiff, harvesting his crops. The defendants originally denied that plaintiff was the kudivaramdar and contended that as the inam was a charity inam, Ex. A was not binding on them. During the course of the trial, the plaintiff's right as kudivaramdar was conceded. The Subordinate Judge decided against the plaintiff and he appeals. The first question that arises for decision is the nature of the inam. Ex. II is the inam register. In column 8 it was described as Kyrati which means, according to Maclean's Glossbry Vol. III, p. 415 a charity inam (Kheiranty)(See also Wilson's Glossory, Khairat). The suit inam was described in Wallace's Register as "to the charity of Ithabar Khan" (Fide Column 14, Ex. II). This is the earliest description of it now available. In Column 21 the Deputy Collector describes it as forming "the grant for the support of the charities of Muhammad Ithabar Khan consisting of a chatram, a water pandal and a mosque." He then mentions that a. former Collector and the Board of Revenue considered it as falling within the operation of Regulation VII of 1817 (The Madras Endowments and Escheats Regulation, 1817) and concludes by proposing to "fix a Jodi of 23rds of the Regular Survey Assessment, which will become the property of the charities to be applied to them by the managers for the time being." But in Column 22, the order of the Commissioner was "confirmed for the support of the mosque, water pandal and chatram on the understanding that the whole village will be resumed unless 23rds of the proceeds are appropriated to the support of the above purposes." It is clear that the inam Commissioner did not accept the recommendation of the Deputy Collector. The entry in Column 2 as "personal" and in Column 9 "Free; Jodi now imposed Rs. 310" must Be regarded as embodying the Deputy Collector's view and as not being adopted by the Commissioner. The fact that a third share of the proceeds is being appropriated by the. inamdars for their private uses does not make it the less a charity inam See Ramanathan Chettiar V/s. Vava Lev-vai Marakayar (1820) 4 B & Ald. 95 (126, 127) : 106 E. R. 873 (885). as the grant was only one and cannot be split up into two parts a personal grant of one-third and a charity grant of two- thirds of the inam. It follows that Ex. A is not binding on the charity.

(2.) The next point argued is that the defendants are barred by limitation from repudiating the transaction of 1882. The plaintiff is a tenant and had been a tenant of the suit land prior to 1882. It is impossible for him to prescribe for the estate of a tenant holding on more favourable terms as the character of the tenant's possession continues and there can be no prescription. In this view, no question of limitation arises and it is unnecessary to consider the effect of the decisions in Vidya Varnthi V/s. Baluswami Iyer (1810) 2 Camp. 506,Damodar Das v. Lakhan Das (1871) 17 W.R.Cr .15 (17), Narasayya Upada V/s. Venkataratnana Bhatta . and Gnana Sambanda Pandara Sannadhi V/s. Velu Pandaram (1899) I.L.R. 23 Mad 271.

(3.) Nor are the defendants estopped by their conduct from questioning Ex.A. In so doing, they do not act in their personal right but as trustees of the institution which cannot suffer from their conduct See Yasim Sahib V/s. Ekambara Aiyar .