T.S. Venkatrama Aiyar vs V. Chendrasekara Aiyar and Another

Sadasiva Aiyar, J.—The plaintiff is the appellant. This second appeal relates only to plaint items 1, 2, 6, 7, and 8. He brought the suit among

other reliefs for a declaration that the attachment and sale of the items of the plaint lands in execution of the money decree against his father, the 4th

defendant, are invalid as the lands are unenfranchised inam lands, and as their attachment and sale are therefore prohibited by law. Both the lower

courts decided against the plaintiff''s contention.

The only question argued before us is whether unenfranchised inam lands which had been granted, not for the performance of future services

either public or private, but as a pure matter of favour for the maintenance of the donee and his heirs are incapable of alienation and whether such

aliena tion is prohibited by law or whether such alienation cannot be allowed as being against public policy. In Sundaramurthi Mudali v. Vallinayaki

Ammal (1863) 1 M.H.C.R. 465, it was held that each holder of a shrotriem inam which had been granted for only 3 lives (namely, one Thanappa

Mudali, his son, if any, and the son''s son, if any), could not be alienated, by will by the adopted son of the 1st grantee (Thanappa Mudali) who

died without issue. The grant there seems not to have been of the land itself but only of the land revenue. Scotland, C.J. (with whom Frere, J.

concurred,) citing the authorities on the subject which were then few and after considering the Regulations 4 of 1831,31 of 1836 and 21 of 1838

held that shrotriems are in the nature of estates tail in strict settlement and that alienation to a stranger by will was therefore invalid. There are

however these two material distinctions between the facts of that case and facts of the present case : (1) the grant in that case was strictly confined

to three generations, whereas in the present case it was a heriditary grant to continue from generation to generation: (2) the grant there was of land

revenue to which Madras Regulation 4 of 31 directly applied, whereas the present was a grant of the land itself the case is therefore not governed

by the three regulations mentioned in that case or by the pensions Act of 1871 which superseded those reugulations. (I do not lay stress on the fact

that the grant there was called shrotriem grant whereas the grant in the present case is called Bhattavritthi grant as there is no distinction in principle

between the two kinds of grants.) In A. Vissuppu v. A. Ramajogi (1865) 2 M.H.C.R. 341 Holloway and Inness, JJ. criticise the decision in

Sundaramurthi Mudali v. Vallinayaki Ammal (1863) 1 M.H.C.R. 465 and point out the distinction between the public service Inams governed by

Regulation 4 of 1831 which are made statutorily inalienable by Section 2 of that Regulation and mere personal Inams, some classes of which inams

alone fell under Regulation 4 of 1831. It was decided in the case in A. Vissuppu v. Ramajogi that the inam Commissioner''s certification and

declaration that the inam was inalienable, was of no value and that unless there is a statutory prohibition, contracts of alienation would be valid.

There, the inam seems to have consisted of the lands them-selves and not the land revenue and the learned Judges distinguish Sundaramurthi

Mudali v. Vallinayaki Ammal (1863) 1 M.H.C.R. 465 on that ground also. In Gunnaiyan v. Kamakshi Iyer ILR (1902) M. 39 , the following

observations of Bashyam Iyengar, J. occur at page 345 : ""According to the theory of the common law of the land applicable to hereditary grants of

public revenue as inam in favour of individuals and to the interpretation of such crown grants, succession, in such cases, is or at any rate, is

supposed to be, limited to the undivided brothers and to the direct lineal heirs, including a daughter''s son, of the last incumbent, as also his widow

and failing them, to the direct lineal heirs of the original grantee. And under that law, it is or it is supposed to be, competent for Government to

refuse personal inams, when the reversion falls in ""or in the language of the Revenue Department--when the inam lapses either by expiration of the

lives for which the inam was granted or by reason of the extinction of direct lineal heirs of the body of the original grantee or of a forfeiture incurred

by alienation to a stranger."" In that particular case, the land in question was a service inam land which had been enfranchised The observations

above quoted do not themselves support the contention that the lands granted as personal inam are not attachable or alienable as the observations

deal with grants of land revenue and not of lands themselves as Inam. In Subraya Mudali v. Velayuda Chetty ILR (1906) Mad. 153 it was held

that except those classes of pensions which fall u/s 11 of the Pensions Act, other classes of pensions are attachable and saleable. In Bhimarasu

Varadayya v. Manchukonda Nammalwar (1909) 20 M.L.J. 88 . Munro and Abdur Rahim, JJ. held similarly that it is only those pensions and

grants which fall u/s 11 that are1 inalienable. Jogirdar Rama Rao v. Koltippi Thlmma Reddi (1919) 11 L.W. 398 merely followed Varadayya v.

Nammalwar (1909) 20 M.L.J. 88 and ubraya Mudali v. Velayuda Ghetty I.LR(1906) Mad. 153. In S.A. No. 1397 of 1918 Bakewell J. and my

self referring to unenfranchised personal inam lands observed as follows:--"" We have not been referred to any authority (except a Standing Order

of the Revenue Board which states that on such alienation, full assessment can be imposed) for the proposition that an alienation by such an

Inamdar is declared or made legally void and we are not prepared to assent to such proposition in the absence of definite authority to that effect.

Mr. Ananthakrishna Aiyar for the appellant admitted that the Pensions Act and the Regulations of the thirties had no application and he did not

deny that the decision in S.A. No. 1397 of 1918 was a direct authority against him. I think that A. Vissuppu v. Ramajogi (1865) 2 M.H.C.R. 342

is also a direct authority against him. He, however, argued that the question was not fully argued or considered in S.A. No. 1397 of 191S, that he

did not depend up on the Regulations, that he relied upon the nature of the original grant itself which must be deemed to have for bidden any

alienation of the land granted and.that his argument that the original grant should be deemed to have prohibited alienation is corroborated by the

observation of Bashyam Aiyengar, j. in Cunnaiyan v. Kamakshi Aiyar ILR (1902) Mad. 339 and also by the Standing Order of the Board of

Revenue, Vol. 2, page 295. I have already referred to Cunnaiyan v. Kamakshi Aiyar ILR (1902) Mad. 339 standing Order 52, paragraph 1

Clause 5, Sub-clause 3 says :--""Alienation of the inara is prohibited."" But it proceeds to say in Clause 7 that an alienee by gift, purchase or

otherwise, though his title may be legally defective and the inam may be liable to resumption in consequence will be allowed the benefits of Rule V.

namely, to have the inam enfranchised or converted into a freehold on payment of an annual quit rent without the option of refusal. Thus the

prohibition of alienation mentioned in the standing order was merely intended to indicate that the Government had the right of resumption in

consequence of the prohibited alienation though it would not exercise that right if the alienees agreed to enfranchisement and to pay the ordinary

rent or to pay a quit rent without the option of refussal. This socalled prohibition is therefore not based on any grounds of public policy, except the

protection of the rights of the Government and so long as such protection is carried out, there is no reason to consider the prohibition an absolute

prohibition, even if it has the force of law (which is very doubtful.) I think therefore that the view of the lower courts that alienation being incidental

to ownership of property and no restriction of this general power of ownership in the case of inam lands having been clearly indicated by statute or

by any rules having the force of statute except so far as it is necessary to preserve the rights of the Government, it is not-necessary to construe the

standing order as more than indicating the nature of the tenure of the land namely, that it is subject to resumption by Government on alienation and

not indicate that alienation is absolutely prohibited as unlawful.

In the result, I would dismiss the second appeal with Costs.

Coutts Trotter, J.

I am of the same opinion for the same reasons.