Kshetrabaro Bissoyi of Namanagaram vs Sobhanapuram Harikristna Naidoo and Others and Sobhanapuram Gopinatha Naidu and Others

The plaintiff in both the suits out of which these appeals arise is the Bissoyi of Namanagaram. He in 1891 and 1899 granted two leases of

certain land at rates of rent ordinary and reasonable in amount but permanently fixed. In 1904 he sued to set the leases aside and to recover

possession of the lands on the ground that the leases were invalid inasmuch as the lands were service inam lands. The suits were dismissed and the

plaintiff appeals. u/s 5 of Madras Act III of 1895 the emoluments attached by the state to certain offices ""shall not be liable to be transferred or

encumbered."" The contention on behalf of the appellant is that the lands in suit are such emoluments and that the grant of a permanent lease

amounts to a transfer within the meaning of the section. We shall assume for the sake of argument that the section applies to the lands in suit. The

question then is what is the nature of the disposition which is prohibited by the words "" shall not be liable to be transferred."" It is conceded that it is

lawful for the plaintiff to lease out the lands in the ordinary was Further it is clear from the use of the words ""or encumbered"" after ""transferred"" that

the latter word does not include the transfer of an interest such as is acquired by a mortgagee and which leaves the ownership in the transferor. The

reasonable inference therefore is that, when it is said the emoluments shall not be liable to be transferred, what is prohibited is transfer of

ownership. The question then remains whether the grant of a permanent lease is a transfer of ownership. Under Regulation XXV of 1802

proprietors of land may, subject to certain restrictions, transfer by gift, sale or otherwise, their proprietary right in the whole or any part of their

Zemindaries. In Venkateswara Yettiappa Naicker v. Alagoo Mootoo Servagaran (1861) 8 M.L.A 27 their Lordships of the Privy Council held

that a permanent lease of portion of a Zemindari is not an alienation, and cannot be considered as a transfer within the words of the Regulation. It is

clear from this that the grant of a permanent lease is not a transfer of proprietary right or ownership. We, therefore, dismiss the appeals which

costs.