SIVAKOTI AUDEYYA Vs. SIVAKOTI SARABHAYYA

JUDGEMENT

(1.) The only question which arises in this second appeal is whether a surrender or relinquishment by some of the holders of a service inam in favour of the remaining inamdars is bad.

(2.) The inamdars were seven in number and two of them brought a suit to recover their two-sevenths share in the inam from the defendant, in whose favour the former holder of the inam had made an alienation. The suit was decreed but in the meanwhile the remaining five inamdars surrendered their interests in favour of the others. The successful plaintiffs endeavoured to have the decree modified but without success, and they eventually brought a second suit in respect of the five- sevenths share covered by the relinquishment. It is attacked by the defendant as bad.

(3.) In the majority of cases cited on the validity of alienations of service inam lands, the alienations take the form of gift, sale, or mortgage; and in the present case it is contended that a relinquishment by one service holder in favour of another service holder who is also his heir is as much an alienation as a sale or mortgage. The true test to be applied is, I think, to be found in the observations by Komaraswami Sastriar J. in Sundara Raju V/s. Seshadri ( 28) 15 A.I.R. 1928 Mad. 35. In that case the validity of a lease was in question and in examining the matter the learned Judge made the following observations: In dealing with this question we have to see the nature of the transaction rather than the form. A lease for 99 years or for a long term in consideration of a premium paid down is as much an alienation as a sale or mortgage and I do not think that the mere use of the word lease or the fact that a long term is fixed would, having regard to the mischief which is sought to be guarded against by holding that service inam lands are not alienable, make the lease valid. The real question is whether the transaction in effect places the income from the lands beyond the disposal of the holder of the office and prevents him from enjoying the emoluments which were intended to go to the holder of the office in order to enable him to discharge his duties properly.