Kamaravutu Mrutyunjayadu vs Raja Saheb Maharban Dostan Sri Raja Ravu Venkatakumara Mahipati Surya Rao Bahadur Sardar, Rajahmundry Sircar, Rajah of Pittapuram

John Wallis, C.J.—This is no doubt a case very much on the line and has given rise to a difference of opinion between the District Munsif

and the Subordinate Judge, and between the two learned Judges who heard the Second Appeal, and on the Letters Patent Appeal. On the whole I

am disposed to agree with the conclusion of Sadasiva Aiyar, J. that there are not sufficient grounds for interfering in second appeal with the finding

of the District Judge. As regards the disputed passage in Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 466. I agree with Ayling, J. that

their Lordships considered that the fact that in that case no quit rent had been reserved although the land had been included in the assets of the

zemindari on which peishcush was payable, was a circumstance which taken with all the other circumstances of that case would have clearly

negatived a power of resumption; but that was only one of the circumstances to be taken into account in the absence of a grant. Here we have the

terms of the grant embodied in a pattah and muchilika. It is true that past services are mentioned by way of inducement, and that the land is to bs

enjoyed from father to son, but it is granted to the grantee who is described as nakesh for his services by which I understand his services as

nakesh, and it is expressly provided that it is to be held as servant''s Inam. Service Inams are admittedly resumable where Government is the

grantor and in the case of darmilla Inams, that is to say Inams granted by Zemindars since the date of the permanent settlement, where they are

service Inams granted for services of a personal nature, I agree with Sadasiva Aiyar, J. that the balance of authority in this presidency is in favour

of their being resumable. The governing provision in my opinion is that they were to be held on service tenure, the service being the service of

nakesh, and I think it follows that they must be considered resumable. See Venkata Narasimha Appa Bow v. Sobhanadri Appa Row (1915) 18

M.L.T. 209, Vadisapu Appandora v. Vyrichendra Veerabhadraraju Bahadur (1911) 2 M.W.N. 406, Gajapathy Maharaju Garu v. Sondi

Prahlada Bissoyi Ratno (1913) 14 M.L.T. 562 : 1914 M.W.N. 179. For these reasons I would dismiss the appeal.

Seshagiri Aiyar, J.

The Zemindar of Pittapur sues to recover possession. The lands in suit were granted in 1868 by the plaintiff''s predecessor in title to one

Mrutyanjayadu from whom the defendants claim (Exhibit I). Plaintiff''s case is that the grant was by way of remuneration for services and that as he

no longer requires the defendants'' services, he is entitled to resume the lands,. The Lower Appellate Court differing from the District Munsif gave a

decree to the plaintiff. In second appeal, Ayling, J., was for reversing that decision, while Sadasiva Aiyar, J. was in favour of confirming it. Hence

this Letters Patent Appeal.

The deed of grant when it is forthcoming should first be examined to see whether the grant is revocable or n6t. An analysis of tie contents Exhibit

I brings out the following statements : (1) It is a grant made to Nakesh Mrutyanjayadu. It must be explained here that the term nakesh denotes a

decorator. It is common ground that this man was employed in painting pictures on the walls of the Samasthanarn buildings; (2) it recites that the

donee had rendered services in the past; (3) that the said services were acceptable to the donor; (4) that the lands were granted as service Inam;

(5) that the grantee was to pay a fixed Kattubadi; (6) that he was, in future, to render services which would deserve the approbation of the

diwanum; and (7) that the lands were to be enjoyed from son to grandson. In addition to the above statements a few more may be mentioned as a

result of the findings of the Courts below; (8) the Kattubadi was never enhanced during the 45 years that the defendants were in possession of the

land; (9) the lands had descended in the lineal fine for 3 generations; (10) the defendants are and always have been willing and ready to render the

service.

I have set out in detail the above circumstances, because in arriving at a conclusion regarding the nature of the grant, the cumulative effect of all

of them have to be considered. The decided cases which I shall refer to, but not in detail, show what combination of circumstances constitute a

grant of office, as distinguished from a grant of land burdened with the duties of an office.

Mr. Srinivasa Aiyangar for the respondent laid stress on the use of the word nakesh as a prefix to the grantee. I do not think that the word is any

thing more than descriptive of the person. It S admitted that prior and subsequent to the grant, a salary was paid for doing decorative work.

Further, it is in evidence that the grantee and his successors were called upon to do mochi work; consequently, it is clear that the use of the

expression nakesh was not intended to denote the office which was then being conferred. The learned vakil then relied upon the statement that the

land ""has been granted to you as service Inam"". It is true that the presumption in Government grants is that the lands granted as service Inam are

resumable. The same considerations do not necessarily apply to grants by Zamindars. It is well settled that service grants by Zemindars are not

always resumable Venkatanarasimha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur ILR (1905) M 52 and Forbes v. Meef Mahomed

Tuquee (1870) 13 M.I.A. 438. The next contention is that as the service was personal, it was open to the Zamindar to dispense with it and to

resume the land. Here again, it is not in every case of personal service that the grant can be resumed. In Idubilly Siyyaddi v. Sri Rajah Viswaswar

Nissanka (1918) 18 M.L.T. 142, the gadiba Service Inam was expressly granted for future services and as wages for those services. Sri Raja

Viseswara v. Gorla Budarado (1910) M.W.N. 486 is to the same effect. In Sanniyasi v. Salur Zemindar ILR (1883) M. 268 the grant was not

produced, and it was found that the Kattubadi was enhanced from time to time. Mahadevi v. Vikrama ILR (1891) M 365 belongs to the same

category. On the other hand, in Yellava v. Bhimappa (1914) 17 Bom. L.R. 131, a grant made for lamp lighting and other menial services was held

not resumable. No general rule can be laid down, apart from other circumstances, that a grant for personal or menial services is liable to

resumption. Mr. Srinivasa Aiyangar''s next attack was directed to the use of the clause ""you shall be rendering service so as to deserve the

patronage of the diwanum"". He argued that these words really meant that the grantee was to hold the lands during the pleasure of the grantor. I do

not think this forced construction is sustainable. It is well-known that such expressions find place in grants by Zemindars and are suggestive only of

the vain gloriousness of the grantor and not of any intention to cut down the effect of the grant. These words are a harmless enunciation of self-

importance as pointed out by Mr. Patanjali Sastri for the appellant. Vizianagaram Maharaja v. Suryanarayana ILR (1886) M. 308 and

Vizianagaram Maharaja v. Sitaramaraju ILR (1895) M. 100.

If we eliminate these considerations, we find that the grant was made in consideration of past services, that the Kattubadi first fixed was never

enhanced, that it was hereditary and did descend from son to grandson, and that that grantee''s heirs are ready and willing to perform the duties of

Nakesh and of Mochi. These facts bring the case within the rule laid down in Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 438 and Baja

Leelanund Singh Bahadur v. Thakore Munoranjan Singh (1873) 13 B.L.R. 124. One paragraph in the former judgment of the Judicial Committee

was claimed by both the learned vakils as favouring their respective contentions. The two learned Judges who differed in second appeal were

prepared to hold that paragraph was in favour of the position taken by each of them. The paragraph runs thus : ""Had this been a grant reserving to

the Zemindar a small money-rent, as well as the services, if indeed the latter are reserved to the Zemindar, their Lordships would have had no

doubt upon the case. But it seems to them that the unexplained anomaly of making mal lands rent-free in the hands of the Jaghirdars, does not

affect the construction of the sanad, or the rights of the parties"". In the previous paragraph, their Lordships held that if the parties wilfully fail to

perform the service, the lands could be resumed, but pointed out that there was no longer any occasion for the performance of the services. Then

they say that if a money-rent, was reserved in-addition to the services to be rendered, provided those services were personal, ""Their Lordships

would have no doubt upon the case."" The circumstance which rendered this sure position somewhat doubtful is mentioned in the next sentence,

and that is the lands claimed were included in the mal assets of the Zemindari in settling the peishcush. In the view of their Lordships, it is an

anomaly that such lands whose assessment was taken into account in settling the peishcush should be granted away permanently. This anomaly

according to them is met sufficiently by the fact that there was a small money rent plus some personal services. Their Lordships held that the

apparent anomaly ""does not affect the construction of the sanad or the rights of the parties."" It seems to me that their Lordships regarded the

payment of a fixed amount as a strong circumstance indicative of the permanancy of the grant made. I do not think any useful purpose will be

served by examining the other authorities quoted at the bar. In my opinion, the present case is stronger than the one which the Judicial Committee

had to deal with in Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 488, and consequently, I hold agreeing with Ayling, J. that the plaintiff is

not entitled to resume the lands. The appeal must be allowed and the suit should be dismissed with costs throughout.

Phillips, J.

The sole question for determination is whether the plaint Service Inam is resumable or not and the decision must depend upon the nature of the

grant - as pointed out by their Lordships of the Privy Council in 1870 in Forbes v. Meer Mahomed Tuquee (1870) 13 M.I.A. 488, and again in

Baja Leelanund Singh v. Munoranjan Singh (1874) L.R 181 .IndAp Sup., where it was recognized that there is a clear distinction between the

grant of an estate burdened with a certain service and the grant of an office the performance of whose duties are remunerated by the use of certain

lands. In both cases a particular grant of the former class was held to be irresumable. The view that a grant of land burdened with service, that is to

say a grant of land to which is attached a condition that the holder shall perform a certain service, is not resumable at the will of the grantor so long

as the holder is able and willing to perform the service, has been consistently held by the courts in India ever since the decision in 13 M.I.A. 438,

but I need not refer to them in detail as on this point there is no real dispute between the parties to this appeal, the same view having again been

clearly enunciated by the Privy Council in Venkata Narasimha Appa Rao Bahadur v. Sobhanadri Appa Bao Bahadur ILR (1905) M. 52. In this

latter case their Lordships enumerated the reasons which in their view were sufficient ground for holding that the grant was one subject to a burden

of service and not a grant in lieu of wages as follows: - ""In the first place,"" ""no office by any particular designation was conferred upon the original

grantee, but an obligation of a feudal character was imposed upon him. He was simply to provide a specified number of men as custodians, so to

speak, of the Zemindar''s property, and their services appear to have been rendered intermittently and not continuously. Besides, they were paid in

money when they actually performed such services that is to say, batta was given to them when actually on duty. It is also certain that in later years

their services were not in frequent requisition, because, as Mr. Taylor points out in his report, the Zemindars would have had to pay in the shape of

batta more than the services were worth. In the second place, the following circumstances indicated as plainly as possible a fixity of tenure. The

mokhasadars have paid a uniform rent of Rs. 144 a year for the last 120 years without alteration at any time, and the land has descended from

father to son hereditarily. There has been no instance of resumption or even an attempt at resumption during all this time. There has also been no

attempt to enhance or to alter the rent, or to interfere with the devolution of the property from heir to heir.

In the present case the grant is made to one ""nakesh"" Mritunjayadu as ''Service'' Inam but the nature of the service is not specifically stated in the

grant, but it is admitted that the service was that of nakesh or decorator, and that the holder also performed Mochi Service. The word nakesh

prefixed to the grantee''s name appears to me to be a mere title. The rent payable on the land has always been the same, and the grant recites that

enjoyment shall be from son to grandson and so on in succession, and as a matter of fact, the land has descended to the holder''s son and grandson

without objection till now, nor has any attempt been made before this to resume the grant or enhance the rent. We also have the recital in the grant

as you who are deserving of the patronage of the diwanum have been rendering service properly you were favoured and lands have been

granted,"" which certainly goes to show that the grant was a reward for past services, and that this was so is further proved by the fact that the

grantee''s services were recompensed by the same salary both before and after the grant, and this is a very strong piece of evidence that the grant

was not made in lieu of wages. The circumstances of this case appear to me to be stronger than those in Venkata Narasimha Appa Rao Bahadur

v. Sobhanadri Appa Rao Bahadur ILR (1915) M. 512 in support of the view that the grant is not one in lieu of wages. The fact that the nature of

the service is in this case personal does not affect the question, which depends solely on the nature of the grant, and for the same reason it is

immaterial whether the service is of a feudal nature or otherwise. In Vadisapu Appandora v. Vyricherla, Veerabhadraraju Bahadur (1911) 2

M.W.N. 406 to which I was a party, it was, held that in the case of a grant subsequent to the Permanent Settlement to which services of a

personal nature were attached there is in the absence of any evidence a presumption that the grant is resumable, but in this case the presumption

has been amply rebutted by the circumstances mentioned above. I therefore agree with Ayling, J. that this is a grant which is not resumable so long

as the grantee is able and willing to perform the service. I have not thought it necessary to refer to the very numerous cases cited on both sides in

which the law, as I understand it, has been applied to the circumstances of each particular grant and the nature of the grant interpreted accordingly,

because each case must be decided on its own merits.

By the Court: - In the result, the appeal is allowed and the suit dismissed with costs throughout.