MIDNAPORE ZEMINDARI COMPANY, LIMITED THROUGH ITS DULY AUTHORIZED MANAGER, P V SUBRAMANIA AYYAR Vs. MALAYANDI APPAYASAMI NAICKER

JUDGEMENT

(1.) This is an appeal from the decree of the District Judge of Madura in a suit brought by the plaintiff as heir of the late Zemindar of Kannivadi to recover the Zemindari from the first defendant, the Midnapore Zemindari Company, and the 2nd defendant claiming under it. The defendant company acquired the zemindari for more than thirteen lakhs of Rupees from the Liquidator of the Commercial Bank of India, which in December 1895 had advanced money on a mortgage to which the plaintiff s grand-father, the then zemindar and his son, the plaintiff s father were parties, and had subsequently obtained a consent decree for sale, and brought the zemindari to sale and purchased it after the death of the plaintiff s grand-father and the succession of his father to the estate. At the date of the Court sale in 1900 the zemindari was an unsettled palayam, but in 1905 the Bank succeeded in obtaining a permanent sannad under Regulation XXV of 1802 at the same peishcush as had been paid without alteration for more than a hundred years.

(2.) The ground on which the plaintiff has succeeded in the lower Court in recovering the zemindari from the transferees of the auction purchaser is that at the dates of the mortgage and the mortgage decree and of the sale thereunder, which were prior to the issue of the permanent sannad of 1905, the zemindari was held on the tenure of rendering military and police service as well as of paying the peishcush demanded; and that in these circumstances it was inalienable by the plaintiff s grand-father and his father after him for more than the terms of their respective lives. These contentions the District Judge has accepted. At the hearing of the appeal the learned Advocate-General raised the further contention that the zemindari was made inalienable by the provisions of Regulation VI of 1831.

(3.) The appellants did not admit that such services, if they existed, would render the zemindari inalienable, and contended that, even if this were so, this defect in the Bank s title was cured by the grant of the sannad to them in 1905 which admittedly put an end to such services if they were then in existence, and rendered the zemindari freely alienable. Their main case, however, was that in 1895 the date of the mortgage to the Bank and afterwards the zemindari was not held on any conditions of military or police service. As regards military service they contended that, when after the cession of Dindigal to the Company by Tippoo in 1792, the then poligar who had been expelled by Tippoo for failure to pay the peishcush imposed upon him, was restored by the Company, the incident of military service was suppressed by the Company in accordance with its settled policy as a necessary preliminary to the introduction of settled government. As regards the police or kaval duties, they admitted that such duties were at first required of the palayagar by the annual sannads issued to him by the Collector of Dindigal, of which several from 1796 to 1804 have been exhibited, but they contended that in accordance with the provisions of Section 5 of Regulation XXV of 1802 and the policy declared therein this police or kaval service was abolished before 1812 and referred to the Fifth Report and Regulation XI of 1816. They contended that the peishcush was permanently settled at the beginning of the last century, and that the delay in issuing permanent sannads in the case of this and some other palayams was due to other causes and without any idea of claiming military and police services from them. As regards the alienability of such unsettled palayams, they relied upon the decision of the Judicial Committee in The Gundamanaikanur case (1874) L.R. I.A. 282 not only that such palayams were hereditary, but that debts incurred by the holder for the time being were binding on the palayam in the hands of his successors, which could not be the case if they were inalienable except for the lifetime of the holder for the time being. The present contention--they contended--was an after thought. The zamindari after being held under Government management was restored to the zamindar in 1843 on payment of a sum of money for arrears which he had to borrow. To discharge this and other indebtedness of his predecessors one of the zemindars in 1861 granted a thirty years lease of the zemindari which was in the nature of a usufructuary mortgage. His successor obtained from this Court a decree in the nature of a redemption decree, and recovered the zemindari by paying off the sum payable to the lessees under the decree in respect of advances made by him to discharge the indebtedness of the estate. The mortgage to the Commercial Bank in 1895 was in respect of the indebtedness incurred by the zemindar in redeeming the zemindari. That it was regarded as binding on the zemindari was shown from the fact that the next heir, the plaintiff s father, joined in the mortgage and consented to the decree for sale.