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Judgment
Madhavan Nair, J.—This second appeal arises out of one of several suits (L.S. 223 of 1924) instituted by the Rajah of Vizianagaram for the
recovery of arrears of rent with interest due by the defendants on certain ""kattukaluva service"" inam lands resumed by the proprietor for faslis
1331, 1332 and 1333. The defendants had executed relinquishment deeds and kadapas at the time of resumption with respect to these lands in
favour of the zamindar. Their main contentions are two fold : (1) that the kadapas and relinquishment deeds are not valid and binding as they are
vitiated by misrepresentation, coercion, etc.; (2) that the services to be rendered by the ryots with respect to these lands are of a public nature and
the lands are therefore not resumable by the zamindar and therefore resumption is invalid. On the first point both the Courts held that the
relinquishment deeds and kadapas are not vitiated by misrepresentation, coercion, fraud, etc; But the learned District Judge in discussing this
question expressed the opinion that he has no doubt
that the knowledge of the elaborate recitals of the relinquishment deeds cannot be imputed to the executants, especially when it is remembered that
the relinquishment deeds were written from a draft that was prepared from similar documents : see para. 5 of the appellate judgment.
On the second point the lower appellate Court differing from the first Court held that the right of resumption of the lands lay with the zamindar.
Both the findings of the appellate Court are controverted before me by the appellant''s learned Counsel. The finding on the first point is a finding
of fact and it has to be accepted in second appeal. As regards the conclusion arrived at by the learned Judge, that the right of resumption is in the
zamindar, I am not satisfied that his view is right. His reasoning on the point does not appear to be consistent and satisfactory. There is no evidence
to show that the suit lands were granted subsequent to the permanent settlement. It is not proved that the assessment of the lands was included in
the assets of the zamindari at the time of the permanent settlement for fixing the peishcush. The District Judge''s opinion seems to be - and in this I
think he is right-that the services are of a ""public nature"" and not personal to the zamindar. It is admitted that the ryots did not refuse to render the
services at any time. The services consist in repairing the village water channels and as such are rendered to the village community. It may be that
the kothwal, an estate official, goes with the ryots when they repair the channels. But, as pointed out by the learned Judge himself, normally the
zamindar is not under any obligation to maintain the minor village channels. The learned District Judge gives some weight to the admission in the
relinquishment deeds that the zamindar had to spend moneys on the repair of the village channels as the inam-holders were unable to do the repairs
themselves. But there is no evidence in support of the truth of this admission, As the first Court points out:
Not even one witness says this. Nor is a single document produced to prove it.
It is clear that the services rendered are to the ryots of the village and to the village generally and not at all personal to the zamindar. The learned
District Judge states that
the very nature of the grant thus leads to the inference that it was for ""village service"" partaking of public services"" as opposed to personal service
but in lieu of wages.
Assuming that the grant is in lieu of wages as inferred by the learned District Judge it does not necessarily follow, having regard to the character
of the services, that the zamindar by himself has the right to resume the land terminating the service. In The Rajah of Vizianagaram Vs. Jerregala
Gangadu and Another, , in a suit instituted by the Rajah of Vizianagaram, the same plaintiff, as in the present case, with respect to ""kattukaluva
service inam lands"" (similar lands as here) it was held by Srinivasa Ayyangar, J., that the lands were not resumable by the zamindar. The following
observations appearing in that judgment are relevant for the present case:
Though the lower appellate Court has found that it was a grant in lieu of wages on the footing that it was a grant at any rate partly for public service
to be performed for the villagers, it follows that the plaintiff has no right by himself to resume the land terminating the service. Again in this case the
ground on which the argument was put forward was that ever since the permanent settlement the plaintiff has had cast on him and also has
undertaken the duty in respect of the irrigation of the village, but whatever may be the rights and obligations of the landlord as between himself and
the Government under the terms of the permanent settlement, it does not follow that the landlord is entitled to put an end at his pleasure and
without concurrence on the part of the villagers to certain services which have been provided for by the grant. It is not suggested that the villagers
in whose favour or for whose benefit the services are to be performed have agreed to the resumption of the grant.
Having regard to the character of the services rendered by the ryots and the fact that there is no evidence to show that the grants were
subsequent to the permanent settlement, and that the lands were included in the assets of the zamindari at the time of the settlement, I must hold,
differing from the learned District Judge, in view of the decision of this Court already referred to, that the suit lands are not resumable by the
zamindar.
The question then arises: ""Is the resumption by the zamindar valid?"" Ordinarily in such circumstances as mentioned above it will not be; but it is
pointed out that even if the ""kattukaluva service inam lands"" cannot be resumed by the zamindar according to the above view, and also according
to the decision of this Court referred to still, in the present case the lands are resumable because of the voluntary relinquishment deeds executed by
the ryots in favour of the zamindar. In support of this view-reliance is placed on the following observation of Sadasiva Iyer, J., in Zamindar of Tarla
v. Kanda Barikivadu AIR 1922 Mad. 119:
If both the grantor and grantee agree that a service should cease from a certain date, and that the lands should thereby cease to be held for
performance of such service, no formal steps (whatever they may mean) are necessary to convert it into ordinary zeroyati. Under the Estates Land
Act the presumption is that all land is zeroyati land, and once the land ceases to be service inam land it resumes the character of ordinary zeroyati
land without any formal ceremonies being gone through.
I do not think that this observation can be applied to the present case. The mature of the services shows that at any rate the zamindar by himself
has no right to terminate the services. (Of course the ryots have not refused to perform the services in the present case.) If resumption cannot be
made by one party exclusively without concurrence of the others also, relinquishment in favour of one - party alone cannot be valid. It appears to
me to be extremely doubtful whether a voluntary relinquishment in favour of a person who has no right at all to resume the land is enforceable, as a
contract is void of consideration. No authority has been cited to me specifically bearing on the point. But I think on principle such an arrangement
cannot be held to be enforceable in law. If I am right in this view the execution of relinquishment deeds in this case would not make any difference
with regard to the right of resumption by the zamindar, who had originally no right to resume. The necessary conclusion is that the relinquishment
deeds and kadapas are not binding on the appellant as the lands are not resumable by the zamindar and so the plaintiff is not entitled to any relief.
This second appeal should therefore be allowed and the plaintiff''s suit is dismissed with costs here and in the Court below (His Lordship then
considered Second Appeals Nos. 14 and 15 of 1928, and held that they also should be allowed.)