Ravipati Kotayya and Another vs Ramasami Subbarayadu and Others

Viswanatha Sastry J.

This is an appeal by7 Defendants 4 and 5 from the judgment of subbaro, J. (as he then was ) in A.S No. 819 of 1948 affirming the decree of the subordinate Judge of Bapatla in O.S. No. 57 of 1947 .awarding the Plaintiffs possession of their share in Acs. 9-88 cents of land situated in the village of Dhenuvakonda. Defendants 4 and 5 are purchasers of the lands under Ex. B-33 dated 26-10-1936 from the father of the 6th Defendant and 7th Defendant who in turn purchased them under Ex. B-5 dated 13-7-1936 from Defendants 1 and 2. The Plaintiffs are the younger brother and the sons of the 1st Defendant and they alleged that the sales Exs. B-33 and B-5 were invalid and not binding on their interest in the lands sold. The Plaintiff''s case, accepted by the trial Court as well as by the. learned judge, is that the lands are Dasabhandam inam lands whose alienation by Defendants 1 and 2. the Defendants of the original grantee, is illegal and void. Before us Sri P. Somasundaram, the learned Advocate for the Appellants urged the following points:

(1) It has not been proved that the lands were granted as Dasabhandam inam.;

The inam was granted in lieu of past services and was not burdened with any abrogation to continue the service in future.

The inam was grant only of the melwaram;

Even if the lands were Dasabhandam inam. their alienation is not illegal or void.

On the first point, it is urged that the original grant has not been produced by the Plaintiffs, the descendants of the original grantee, who should have custody of it and therefore a presumption adverse to their claim should be drawn. The grant was made nearly 200 years ago by the then Zamindar of Venkatagiri to an ancestor of the Plaintiffs several degrees remote and it is .quite possible that the original grant, though it appears to have been filed in some earlier proceedings, has now been lost. (After discussion of the documentary evidence their Lordships proceeded). On these documents the only conclusion possible is that the lands in suit are Dasabhandam inam lands.

On the second point, the learned Advocate for the Appellants contended that the Dasabhandam grant was in lieu of past services in constructing a tank at Dhenuvakonda and there was no obligation on the part of the grantee to render service in future by keeping the tank in good repair, Dasabhandam inam, generally, though not invariably, carries with it the condition of keeping the tank or channel or other sources of irrigation on repair. Board''s standing order 58 gives the power to the Government in Ryotwari villages and the Zamind&rs in permanently settled Estates to resume Dasabhandam inams in case of default of service. See also Section 140(2) of the madras Estates Land Act and Section 17(2) of the Madras Estates Abolition Act 1948. In the present case there is conclusive evidence that the inam "was a grant burdened with service by way of keeping the tank in repair. Ex, A-4, an extract from the suit register shows that the Zamindar of Venkatagiri filed O. S. No. 508 of 1867 against Rama-swami Ramalingam, the ancestor of the Plaintiffs, and got a decree against him for the amounts spent by the Zamindar for effecting repairs to Dhenuvakonda Cheruvu. This judgment indicates that the inamdars was bound to keep the tank in repair and as he defaulted to do so, the Zamindar effected the repairs and recovered the cost from him. Ex. A-5 the judgment in O. S. No. 521 of 1914 shows that person who was employed by Rama-sani Sethuramayya, the then holder of the Dasa-baridham inam, to repair the tank obtained a decree against his employer for the amount payable to him for the work done. Exs. A-10 dated -25-11-1953 and A-11 dated 1-6-1946 are notices given on behalf of the Venkatagiri Zamindar to Subbarayudu and Ramalingayya. the then inam-dars, to repair the tank or on default of their doing so, to deliver possession of the inam lands. Lastly Ex. B-4 dated 22-1-1936 the contract of sale Ex. B-5 the sale deed dated 13-7-1936 and Ex. B-33 the subsequent sale deed dated 26-10-1936 in favour of the Appellants all provide that the vendees of the inam lands should themselves do the cheruvu repairs pertaining to the Dasabhanham inam from the date of sale. We therefore, find the second point against the Appellants.

The third point argued is whether the grant of the inam comprised both the warams or the melwaram alone. The evidence on this point is somewhat meagre, but the dumb alas to which we have referred, Exs. A-l and A-2, the recitals in Ex. B-37. a bill maktha cowle dated 8-9-1873 granted by the inamdar to a lessee and in Ex. B-39 a mortgage deed dated 11-9-1879 executed by the then inamdar, indicate that it was the land and not the melwaram alone that had. been granted as inam. There is also Ex. B-35, a deposition given by the grand-father of the Plaintiffs in certain summary suits which points in the same direction. Having regard to the age of the grant, the circumstances under which the grant was made and the indications in the documents above referred to, we agree with the decision of the learned Judge on this point.

The last and fourth point raised by the learned Advocate raises the question whether Dasbandham inam lands could be validly alienated by the holder of the inam. A forcible argument has been addressed to us to the effect that in the case of Dasabhandam inams the service was purely of a secular nature which could be performed by anybody, that no special or personal qualification on the part of the holder was necessary for rendering the service, that an alienee of the inam lands would take it subject to the burden of service and to resumption by the grantor on default of service, that therefore there was no prejudice to the ryots depending on the irrigation source for the maintenance of which the Dasabhandam inam was granted and that no high principle of public policy was violated by recognising the inamdars'' right of alienation. The learned Advocate argued that the decision of the Madras High Court on which reliance has been placed by the learned Judge should be reconsidered in the light of the above considerations and recent legislation regarding Dasabhandam inams.

It is necessary to consider the nature of the service rendered by the grantor of a Dasabha-dam inam. As early as the Madras Railway Co., v. Zamindar of Carvatenagarum 1 Ind App 364 (PC) (A) the Judicial Committee laid down that it was the duty of the Zamindar to maintain the tanks in his Zamindary which were part of a national system of irrigation, recognised by the laws of India as essential to the welfare of the inhabitants. In the course of their judgment, the Judicial Committee observed:

The tanks are ancient, and formed part of what may be termed a national system of irrigation, recognised by Hindu and Mahomedan law, '' by regulations of the East India Company, and by experience older than history, as essential to the welfare and, indeed, to the existence of a large portion of the population of India. The public duty of maintaining existing tanks, and of constructing new ones in many places, was originally undertaken by the Government of India, and upon the settlement of the country has in many in stances, devolved on Zamindars, of whom the Defendant is one. The Zamindars have no power to do away .with these tanks, in the maintenance of which large number of people arc interested, but are charged under Indian law, by reason of their tenure, with the duty of preserving and repairing them''''. (Italics ours here into '' '').

The responsiblity of the Government for maintaining in order the tanks and irrigation channels in permanently settled estates was transferred to the Zamindars under the permanent Settlement. In order to discharge this public duty cast upon them, the Zamindars granted lands in their estate by way of Dasabhandam inams, requiring the grantees to maintain the particular tanks and channels assigned to them in good repair. The Dasabhandam inam was. therefore, a grant, of land burdened with service of a public nature, the obligation of the Zamindar in this respect devolving on the grantee of the inam and if the inamdar defaulted to keep the tank or channel in good repair, the obligation to do so again devolved on the Zamindar. It was for this reason that the Zamjndar was entitled to resume the Dasabhandam inam on default of service by the inamdar, liability to resumption on default of service being a condition of the grant. In the case of Dasabhandam inams situated in ryotwari villages the Government has the right of resumption on default of service. (See Board''s standing Order ''Mi and Section 140(2) of the Madras Estates Land Act;. Section 17(2) of the Estates Abolition Act of 1948 also proceeds on the basis that Dasabhandam inams are grants burdened With service of a Public nature. The Dasbhandam service must therefore be held to be service of a public nature, namely, the keeping in repair of tanks and channels from which water has to be drawn for cultivation of their lands by the ryots of the--village.

In Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), a Full Bench of the Madras High Court decided that lands held on Swastivachakam service tenure were not alienable and that the sale of such lands was opposed to public policy and the nature of the interest affected. Sri Somasundaram sought to distinguish this case on the ground that there the service was a Swastivachakam service which could be performed only by Brahmins learned in the Vedas and which therefore depended entirely on the personal qualifications of the grantee, while here anybody could keep the tanks in the repair if only he had the requisite funds for the purpose. The Ratio Decidendi the Full Bench judgment is at page 623 of the report (ILR Mad) : (at p 193 of AIR). Schwabe. C. J., observed:

In my judgment the sale of such property is opposed to the nature of the interest elected and also is contrary to public policy. The tight to joy the property is as long as the inamdar renders services in the performance of which the public have an interest. If the inamdar sold the property it is obvious that he would in all probability no longer perform the services; & further, it is quite opposed to the nature of his interest and duty namely, that he should enjoy the produce of the land as salary for the public services he has to render) that he should sell it or alienate it, leaving himself without the means of substance and without further interest in the place or in the performance of the services. It is also to be observed that, if the property were sold, the purchaser would get no title of any value for at any moment the property might revert to the Zamindar or the Government. as the case may be, when the inamdar ceases to render such services.

Coutts Trotter J. who had taken a different view in an earlier judgment to which he was a party agreed, with Schwabe C.J. that it would be contrary to public policy to reccgnise the validity of a sale in execution of Dasabhandam inam lands. Sri Somasundaram argued that "Public Policy" was treacherous ground for judicial decision and that the sale of the inam lands was neither illegal, immoral or criminal nor per se injurious to Public interest especially when the service could be rendered by the alienee quite as efficiently as by the inamdar himself. He also argued that public policy was a concept capable of expansion or modification from time to time and that in circumstances existing today, it is not right to fetter the holding and free disposal of property by" citizens on grounds of Public policy. Many of the incidents of service tenures are regulated by what may be called the common law which has grown up and has been formulated into fixed principles by judicial decisions. Our function is not so much to expound public policy according to the needs of the times as to apply principles recognised and established by prior decisions. It is not as if the decision in Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), ; started a new current of authority or laid down a new principle. It was an affirmation of the law laid down in prior decisions of the High Courts some of which are referred to in the judgment of Schwabe C. J. The observations of the'' learned Judges in the Full Bench case are not confined to the case of a Swastivachakam Service but are of general applicability and cover cases of all public service inams.

In Soora Ramakrishnamma Vs. Pasumarthi Venkata Subbiah and Others, and Lak-shmadu v. Ramudu ILR (1940) Mad 123 : AIR 1939 Mad 867 (D), two Division Benches of the Madras High Court have held, following the Full Bench decision, that lands burdened with Dasabhandam service which is a service of a public nature, are inalienable as being against public policy. We need not refer to cases relating to other kinds of service tenures. To Sri Somasundara''s request to refer the question to a Full Bench of this Court, our answer is Stare Decisis.

It was then argued that the principle of public policy on which the above decisions were based will no longer be available as a ground of judicial decision in the face of subsequent legislation relating to Dasabhandham inams. Reliance was placed upon Section 140 of the Madras Estates land Act as reenacted in 1934. This Section provides that on default of a Dasabhandam inamdar to maintain an irrigation work in good repair, the landholder of the estate served by the irrigation work may execute the repairs specified by an order of Collector or Revenue Divisional Officer passed u/s 139(1) (a) of the Act and recover the cost of the same from the Dasabhandam inamdar by a suit before the Collector. The section also provides that the amour t of the decree so obtained by the landholder could be recovered as if it was an arrear of rent. One of the ways in which an anear of rent be recovered in a sale of the holding of the ryots. It is therefore argued that there is now no prohibition against bringing Dasabhandam inam lands to sale through court and that the reasons given in the decisions already cited for invalidating a private sale of the inamlands, no longer exist. In our opinion, this is not conclusive argument. It is one thing to confer a special power on the landholder, in the interest of the ryots depending on an irrigation work, to sell the land of the defaulting Dasabandham inamdar and it is a different thing to allow the Dasabhandam inamdar himself to sell the lands burdened with service for his own personal or private advantage,- Secondly it cannot be assumed that every method of recovering arrears of rent available to the landholder under the Estates Land Act would necessarily be available against the Dasabhandam inamdar. The inamdar is not a ryot. The inam land is not ryot land. The land held by a Dasabhandam inamdar Is not a holding. Therefore all the remedies available to a landholder for recovery of arrears of rent under the Estates Land Act may not be available to the land holder for realising the cost, of repairs from the Dasabhandam inamdar u/s 140(1). It is only to the extent to which such remedies can be availed of without violating other provisions of law that Section 140(1) can be invoked by the land holder. Decrees for arrears of rent could be transferred for execution to a Civil Court and it would be anomalous to hold that by reason of Section 60 CPC the Civil Court executing a decree passed by the Collector u/s 140(1) of the Madras Estates Land Act'' cannot attach Dasabhandam from lands, while the Revenue Court executing the same decree could do so. u/s 140(2) of the Estates Land Act and Section 17(2) of the Estates Abolition Act, 1948 the Legislature expressly reserved the right of resumption in the case of Dasabhandam inam. If the Legislature had intended to abrogate the well established principle based on public policy that inams subject to the burden of service of a public nature are inalienable it would have made a special provision to that effect. This, however, has net been done. In these circumstances. We are unable to hold that the principle of the decision cited above has been weakened or abrogated.

We therefore, agree with the conclusion of the learned Judge and dismiss this Letters Patent Appeal with costs of Respondents 1 to 3 and 6, one set.