Syed Ahmed Mohideen Razvi vs Thakirunnissa Begum

P.V. Rajamannar, C.J.—This is an appeal against the judgment of Ramaswami Gounder, J., in A.S. No. 619 of 1952. It arises out of a suit

filed by the respondent against the appellant for recovery of possession of the suit properties together with mesne profits. The plaintiff is the widow

of one Syed Jaffar Mohideen, the brother of the defendant. It is common ground that the suit property formed part of an inam in Jagir

Gurivinayanapalli which was attached to the office of the Kazi of Baramahal. Though the original grant is not available, sufficient information is to be

found in the certified extract from the Inam Register (Exhibit A-37 - Exhibit B-1). The entries in the Inam Register show that the inam comprised

about 765 acres and was granted ""for performing the duties of Kazi in the Baramahal division"". It was confirmed tax-free for the service of the

Kazi of Baramahal. In 1810 one Syed Abdul Razack appears to have been appointed as the Kazi of Baramahal and all inams and other

emoluments of the said Kazi office were directed to be put in his possession under an order of Government. Abdul Razack had three sons of

whom the eldest, Syed Jaffar Mohideen, was appointed Kazi after the death of Syed Abdul Razack. Jaffar Mohideen continued in that office till he

died in 1893, and after his death his eldest son Abdul Razack was appointed Kazi (Exhibit B-2); but it must be noticed that he was not appointed

Kazi of Baramahal division but as Kazi for the area comprising Tirupattur taluk (excluding Vaniyambadi and the neighbourhood) and Uttankarai

division of the Uttankarai taluk in the Salem District. This Abdul Razack the Second died in 1933 leaving behind him his brother Fazlullah who had

three sons, Jaffar Mohideen, Mohideen Hussain and the present defendant, and a daughter by name Unnissa Bi. The plaintiff is the widow of this

Jaffar Mohideen. Mohideen Hussain died in 1943. After the death of Abdul Razack the Second in 1933, the defendant was appointed by the

Government as Kazi (Exhibit B-7) again not for Baramahal but for the Tiruppattur taluk excluding Vaniyambadi and neighbourhood in the North

Arcot District and Uttankarai sub-taluk of the Harur taluk of the Salem district. The defendant asserting his exclusive title to the entire inam filed a

petition before the Collector praying that the inam may be registered in his name; but his petition was dismissed and he was directed to establish his

right in a civil Court. The defendant thereupon filed a suit against his two brothers and sister, O.S. No. 21 of 1937 in the Court of the Subordinate

Judge of Salem, praying for a declaration that he was entitled to the entire property comprised in the inam and for possession of the same. The suit

was not disposed of after contest but was concluded by an arrangement between the parties, the terms of which were that the properties were

treated as the ancestral family properties and were divided into four shares, each of the three brothers and the sister keeping a fourth share. This

arrangement was embodied in a deed of partition, dated 23rd February, 1940 (Exhibit A-1). In view of this arrangement the suit which had been

filed by the defendant was agreed to be withdrawn and it was accordingly not pressed and dismissed on 21st March, 1940. The suit properties

were those that fell to the share of Jaffar Mohideen, the plaintiff''s husband at this partition. Jaffar Mohideen first executed a lease and then a

conveyance in favour of his wife, the plaintiff (Exhibits A-2 and A-3). Though the defendant was a party to the partition arrangement he began to

interfere with the possession of the suit properties by the plaintiff''s lessees and so the plaintiff filed the suit for a declaration that she was entitled to

the suit properties and for recovery of possession from the defendant. The main plea in defence with which we are now concerned in this appeal

was that the suit properties formed the Kazi service inam and when the defendant was appointed Kazi on 24th July, 1934, by the Government he

became entitled to be in possession of all the suit properties and other properties forming kazi service inam, and being a service inam it is only the

holder of the office who was entitled to it. The defendant further pleaded that the partition deed did not represent a bona fide transaction but was

entered into for ulterior purposes. Apart from these pleas, there is a further legal plea that the service inam was not alienable as the lands were an

appanage of the office, and therefore a partition or alienation of the properties is void and inoperative in law as opposed to public policy. The

learned Subordinate Judge who tried the suit held that the suit lands which admittedly formed part of the Kazi service inam intended for the Kazi of

Baramahal was inalienable and impartible, and though the partition entered into in 1940 between the members of the family was true, it was not

valid and binding on the defendant, and likewise the lease and the conveyance to the plaintiff by her husband were not valid and binding on the

defendant. On the said findings the plaintiff''s suit was dismissed. The plaintiff filed an appeal to this Court, A.S. No. 619 of 1952 from the decree

and judgment of the learned Subordinate Judge of Salem. The appeal to this Court eventually came on for hearing before Ramaswami Gounder, J.

He thought that the appeal could not be satisfactorily disposed of without a finding on the question ""whether under the order, Exhibit B-7, the

defendant was appointed to the office of Kazi for the Baramahal division"". The learned Subordinate Judge of Salem was directed to submit his

finding on the question after permitting the parties to let in any further evidence if they chose to. The plaintiff did not let in any further evidence; but

the defendant besides examining himself examined two other witnesses D.Ws. 7 and 8. The learned Subordinate Judge submitted the following

finding:

My finding is therefore that the defendant was appointed to the office of Kazi only for the areas described, viz., the division comprisng Tiruppattur

taluk excluding Vaniyambadi and the neighbourhood in the North Arcot district and Uttankarai, the sub-taluk of Harur taluk, in Salem district, and

not for the Baramahal divisions as such a division does not exist and does not also seem to get recognised by the Government as attached to any

particular area of division at the present day.

The learned Judge, Ramaswami Gounder, J., held that after 1893 no member of the family including the defendant had been appointed as Kazi of

Baramahal division and therefore it could not be held that the junior Abdul Razack and defendant had possession of the suit properties as Kazi of

Tiruppattur. Nevertheless the properties continued to remain in the family. The members of the family including the plaintiff were bound by the

partition arrangement of 1940. If that be so, then undoubtedly the plaintiff as the widow of Jaffar Mohideen will be entitled to the properties which

fell to his share. In the result the learned Judge allowed the appeal and passed a decree in favour of the plaintiff as prayed for. Hence this appeal by

the defendant.

The contention of Mr. D. Ramaswami Ayyangar, learned Counsel for the appellant, was that the lands in suit formed part of a Kazi service inam

and as the service of a kazi is in the nature of public service an inam granted for such purpose is impartible and inalienable, as the inam forms an

appanage of the office. It is now well established that lands attached to a hereditary village office is inalienable. Section 5 of the Madras Hereditary

Village Service Act embodies this rule. On principle the same restriction would apply to lands granted for public services, not covered by that Act.

In Lakshmadu v. Ramudu ILR (1940) Mad. 123, it was held that lands granted by way of dasabandam inam were i�alienable, as an alienation

of such an inam was against public policy and void. The decision of the Full Bench in Neti Anjaneyalu Vs. Sri Venugopal Rice Mill (Limited), ,

which dealt with lands burdened with swastivahakam service has been held to cover all service inams of a public nature (vide Ramakrishnamma v.

Venkatasubbiah (1934) 68 M.L.J. 46 : ILR Mad. 389 . The general principle is that it is quite opposed to the nature of the interest and duty of the

public servant that he should part with it, leaving himself without the means of subsistence and without further interest in the place or in the

performance of the services. The decisions relied on by Mr. Gopalaswamy Ayyangar in T.S. Venkatrama Aiyar Vs. V. Chendrasekara Aiyar and

Another, and Vaidyanatha Aiyar and Others Vs. Yogambal Ammal and Others, deal with inams in the nature of personal maintenance grants and

are not opposed to the principle laid down in the catena of cases referred to above.

The only question for consideration is whether on the date on which the first defendant and the plaintiff''s husband and other members of the

family entered into the partition, the terms of which we find embodied in the document Exhibit A-1, dated 23rd February, 1940, the lands can be

said to suffer under this disabling rule. Before dealing with the documentary evidence bearing on this question it is useful to set out briefly the history

of the office of the Kazi. The office of Kazi has its origin in Muslim law and Mogul polity. The Kazi was chiefly a judicial officer corresponding to a

magistrate of the present day. Besides judicial functions he also performed certain other duties, partly of a secular and partly of a religious nature,

as for example, attesting and registering deeds of transfer of property and celebrating marriages and performing other rites and ceremonies. Under

the British Rule there was no place for the Kazi as a judicial officer. In 1864 an Act was passed to repeal the laws relating to the office of Hindu

and Mahomedan Law Officers and offices of Cazee-ool-cazaat and to abolish these offices. The Preamble runs as follows:

Whereas it is unnecessary to continue the offices of Hindoo and Mohammedan Law Officers and i t is inexpedient that the appointment of Cazee-

ool-cazaat or of city, town or pergunnah Cazees should be made by Government.

The Regulations or parts of them set forth in the Schedule annexed to the Act were repealed. There was one saving provision in Section 2 of the

Act in the following terms:

Nothing contained in this Act shall be construed so as to prevent a Cazee-ool-cazaat or any other Cazee from performing when required to do so

any duties or ceremonies prescribed by the Mohammedan Law.

The Muslim community appears to have suffered inconvenience on account of the State divesting itself of the power of appointing Kazis. This led

to the passing of the Kazis Act (XII of 1880). The Preamble sets out the reason for the passing of the Act:

Whereas by the Preamble to Act (XI of 1864)(An Act to repeal the law relating to the offices of Hindu and Muhammadan Law Officers and to the

offices of Kazi-ul-Kuzarat and of Kazi and to abolish the former offices) it was (among other things) declared that it was inexpedient that the

appointment of the Kazi-ul-kuzarat, or of City, Town or Parganna Kazis, should be made by the Government and by the same Act the enactments

relating to the appointment by the Government of the said officers were repealed; and whereas by the usage of the Muhammadan community in

some parts of British India the presence of Kazis appointed by the Government is required at the celebration of marriages and the performances of

certain other rites and ceremonies, and it is therefore expedient that the Government should again be empowered to appoint persons to the office

of Kazi.

The only provision of this Act to which we need refer is Section 2, the material part of which runs thus:

Whenever it appears to the Provincial Government that any considerable number of Muhammadans resident in any local area desire that one or

more Kazis should be appointed for such local area, the Provincial Government may, if it thinks fit, after consulting the principal Muhammadan

residents of such local area select one or more fit persons and appoint him or them to be Kazis for such local area.

It was apparently not the intention of the Legislature to confer exclusive rights on the persons appointed as Kazis by the Government to perform

the functions which his office requires him to discharge. That is why it was enacted in Section 4 that nothing contained in the Act and no

appointment made under it shall be deemed ""to prevent any person discharging any of the functions of a Kazi"". It is under the provisions of this Act

of 1880 that the Government purported to appoint Abdul Razack Sahib as Kazi in 1893(Exhibit B-2) and the first defendant himself was

appointed in 1934 (Exhibit B-7).

The earliest document we have relating to the nature of the inam is the Inam Register of which an extract was filed in the case (Exhibit A-

37/Exhibit B-1). The inam is described to have been granted for performing the duties of Kazi in the Baramahal division. Among the written

instruments produced before the Inam Deputy Collector were a certificate of the Court, dated 10th August, 1810, appointing Syed Abdul Razack

as the Kazi of Baramahal, an authenticated copy of a Collector''s order, dated 1st October, 1813, directing all inams, villages and other

emoluments of this Kazi office to be put in possession of Syed Abdul Razack Ahamad Khazi under order of Government, and a certificate dated

16th September, 1856, of a Judge appointing under orders of the Sadar Court Syed Jaffar Mohideen Sahib as the Kazi. The inam was confirmed

tax free ""for the service of the Khazi for Baramahal"".

It now becomes necessary to determine what area was comprised in the Baramahal division. In Maclean''s Manual of Administration, Vol. III, it

is described as

A tract of country supposed to have included the modern talooks of Dharmapoory, Krishnagiri, Tripatore, Oothancarari in Salem District and the

Cungoondy zamindary of North Arcot.

The history of this tract is briefly given thus:

Originally governed by the Anagoondy family. Passed in 1668 under the Mysore rule, then under the Nawabs of Cuddappah, who were ousted by

Hyder Ali in 1759. Ceded to the English by Tippoo in 1792 when the name was soon after abandoned.

In the glossary found at the end of the second volume of the Manual of the Salem District, the meaning of Baramahal is given thus:

Baramahal, the twelve palaces, signifies ''the tract ruled from the 12 palaces'' and is now synonymous with the taluks of Tirupatur, Krishnagiri,

Dharmapuri and Uttankarai.

A very interesting account regarding the origin and history of the Baramahal division is found in Chapter III of the Manual, pages 82, et seq. The

following extract from the Note on page 83 of the Manual is material:

The question, ""what is the Baramahal?"" is one more easily asked than answered. At present it is supposed to be coterminuous with the four taluks

above mentioned. At the commencement of the century it included Kangundi....

It is important to note that the year of the publication of the Salem District Manual is 1882. In the Imperial Gazetteer of India relating to Madras

Presidency (1908) (Edn.) the following information about Baramahal is to be found:

Baramahal - A name loosely applied in English histories to the north-eastern corner of Salem District, Madras, but no longer in use. It apparently

included the taluks of Tirupattur, Krishnagiri Dharmapuri and Uttangarai in Salem, and the Kangundi zamindari in North Arcot.

It is fairly clear from the evidence on record that the Baramahal division as such passed out of use. That is why evidently both in 1893 and in

1934 the appointments of Kazis were for a local area comprising Tirupattur taluk excluding Vaniyambadi and the neighbourhood in the North

Arcot district and Uttankarai sub-taluk of the Harur taluk of the Salem District. The defendant admitted in his evidence given after the order of this

Court calling for a finding that for Hosur taluk there is a Kazi in the town, that similarly there is a Kazi for Harur taluk, a Kazi for the Dharmapuri

taluk and a Kazi for Krishnagiri taluk. There is no order of the Government vesting the inam lands which pertained to the office of the Kazi of

Baramahal in the Kazi appointed for the Tirupattur and Uttankarai taluks. The position appears to be this. When the office of the Kazi of

Baramahal division as such ceased to exist it was open to the Government to resume the inam and re-grant it in whole or in part to the Kazi

appointed for Tirupattur and Uttankarai taluks. This was never done by the Government. The lands, however, continued to be in possession of the

family of the plaintiff and the defendant and they were being treated as part of family property. Even as early as 1876 the inam was registered in the

name of Jaffar Mohideen as well as his two brothers by consent of all parties, what rights the Government can have even now to resume the inam it

is not necessary for us to consider in this case. In our opinion, the lands became disannexed from any public office from the time the Baramahal

division ceased to exist as such and became split up into several taluks. It follows, therefore, that when the members of the family began to effect a

partition of these lands they were not only treated as family property, but also in law were not property attached to a public service. The plea of

the defendant that the lands were impartible and inalienable must therefore fail. We agree with the conclusion of the learned Judge, Ramaswami

Gounder, J., that the members of the family including the defendant are bound by the partition arrangement of 1940 and the plaintiff is entitled to

succeed as the heir of Jaffar Mohideen. The appeal is dismissed. No costs.