LAKSHMI VENKAYAMMA Vs. SECYOF STATE

JUDGEMENT

(1.) These are five suits brought by the wife of a zamindar challenging the right of Government (the defendant) to enfranchise service inam lands, three of which relate to talayaris and two to karnams. The burden of proof has been correctly cast. The onus originally rested upon plaintiff to prove her claim. She has proved that these inams were within the ambit of the zamindari. Then it rests with the defendant to prove that they were excluded from the zamindari, and the right of enfranchisement belongs to Government.

(2.) The documents upon which the defendant relies are mustered in para. 5 of the lower appellate Court judgment, and we agree with the lower Courts that their combined effect is to show that these inams were granted before the settlement of 1802. Particularly significant is Ex. 2-D, which shows the manyams enjoyed " up to fasli 1212"; and there is nothing produced by plaintiff or otherwise upon the record to suggest that any inams were granted subsequent to that date.

(3.) It is contended that a presumption lies against the defendant because he has failed to produce the record of the original settlement of this zamindari which would put the matter beyond dispute. No doubt the failure to produce that document, assuming it to be in defendant's favour, has deprived him of his (best defence; and he has been driven to build up a case on such inferences as can be drawn from the miscellaneous documents that have been filed. But in a case of this sort it is scarcely fair to suggest that the document has been withheld by the defendant because it is not in his favour. Government's only concern is to deal fairly between public and private interests and had a document been forthcoming showing beyond doubt that the title lay with the plaintiff, her rights presumably would have been recognized. It must be taken that the stricture passed in Parthasarathi Appa Rao V/s. Secy. of State [1913] 38 Mad. 620 was in regard to the special circumstances of that case and in this case the fairest presumption is that the grant of 1802 is not produced because it cannot be found. Certain accounts of 1802 are reported as actually lost in Ex.5-A. Once it is found that these inams were granted before the settlement of 1802 it becomes extremely probable that they were excluded from the zamindari as explained by Ramesam, J., in Kuppu Reddi Nookayya v. Bhemanna A.I.R. 1923 Mad. 451. Having regard to the terms of Regns. 25 and 36 of 1802 it was clearly the intention of Government that inams for the performance of public services should be excluded from the assets of the estates then settled. In the present case it is not an unfair assumption that this intention was carried out when the Circuit Committee's account Ex 11 is found to have entered the service inams with quit rents estimated in grain below and apart from the main assets of the estate which are estimated in cash. The only exception is an entry among the assets of peon's inams, but then an inam for private service to the zemindar is not the same as an inam for public service. We, therefore, see no reason to differ from the concurrent findings of the lower Courts that these inams were excluded from the assets of the estate.