MAHADEO BHAGWAN TIDAKE Vs. HARIHAR SHANKAR

JUDGEMENT

(1.) THIS appeal arises out of an application made in the executing Court by a judgment-debtor to the effect that certain fields which had been attached in execution of the decree against him should be released as these fields were inam and had been granted to his predecessors for maintenance. The judgment-debtor applicant's contention was upheld in the executing Court and in appeal, and the decree-holder has preferred this miscellaneous appeal. In the executing Court the applicant-judgment-debtor contended that the jagir which he claimed to hold was held for maintenance under Inam Rule 3 of the Berar Inam Rules of 1859 and that the land was inalienable and could not be attached. The decree-holder however contended that, as the grant was a maintenance grant, it was to be enjoyed in the manner laid down in Rule 5 of the Inam Rules, and that such a grant was alienable at least for the life of the holder. The executing Court found that it was impossible to determine from the evidence adduced whether Rule 3 or Rule 5 of the Inam Rules applied, that is to the say, whether inam was one under Class 1 or Class 3 in the classification given in Rule 2 of the Inam Rules. But it held nevertheless that, whether the inam is one of Class 1 or Class 3, it was in either case inalienable. The lower Appellate Court upheld this view and also emphasized the point that as inams in Berar are prima facie held in restricted tenure, it was the duty of the person who alleged that a particular inam was to be treated as freehold and alienable to prove this, and that the decree-holder on whom the burden lay had failed to do so.

(2.) BEFORE us the position is in a manner reversed. The appellant decree-holder relying mainly on an unreported decision of the Judicial Commissioner's Court by Subhedar A.J.C. in Jalaluddin v. Md. Amir AIR 1930 Nag 279 where it was laid down that Class 3 inams are inalienable unless enfranchised and that Class 1 inams are alienable, contended for the proposition that the inam in the case before us was a Class 1 inam and not Class 3 as he had urged in the executing Court. The respondent, on the other hand, contended for the proposition that the inam is a maintenance grant subject to Rule 5 and falling under Class 3, and argued that the description in his application in the executing Court that the inam fell under Rule 3 and therefore under Class 1 was an error. The decree-holder attempted to bind the respondent to his original assertion. It is quite clear that he cannot do so, more particularly when the decree-holder appellant himself has changed his ground. In fact the sole contention before us is whether Class 1 or Class 3 is the proper class under which this inam falls. Class 1 relates to personal jagirs and Class

(3.) THE executing Court considered that it was not bound to follow the decision of Subhedar A.J.C. in Jalaluddin v. Md. Amir AIR 1930 Nag 279 since it was an unreported ruling, and although it is not strictly necessary for us to consider the correctness of this decision in view of what has been said in the preceding paragraph, we would point out that we consider with respect the correctness of the ruling to be open to considerable doubt. It is based on the fact that, because Rule 5 provides for the conversion of a restricted tenure into a freehold although future alienation is ordinarily prohibited, and Rule 3 contains no restrictions whatever, an inam under Class 1 is from its very nature a freehold and unrestricted in matters of alienation. This simple proposition appears to us to leave out of consideration the restrictions and the decrees of relationship of those allowed to inherit a personal jagir as laid down in Rule 3 and the succession fee which it imposes, conditions which appear to us to be entirely incompatible with the creation of a freehold estate. It also appears to leave out of account the necessary implication which follows from the citation in Jalaluddin v. Md. Amir AIR 1930 Nag 279 of a passage from (1925) C.P. and Berar Rev Rul 1 Haji Begum v. Khwaja Kutubuddin (1925) C.P. and Berar Rev Rul 1 which Subhedar A.J.C has cited with approval. This citation is to the effect that there is very little difference between Class 1 and Class 3 and that Mr. Bullock, the Resident at Hyderabad, explained that although a jagir is an inam and vice versa, the distinction was maintained as a matter of rank between existing jagirdars and inamdars, and indeed these rules which were admittedly based on the draft of Inam Rules then under preparation for Madras differed from these latter as finally sanctioned in that the Madras rules do not recognize any separate class of personal jagirs and include them in the more general class of personal or subsistence grants.