1. This is an appeal from the decree of the District Court dismissing a suit for the recovery of certain lands formerly held as a Dasabandham inam i.e., lands granted for the upkeep and maintenance of certain tanks.
2. For the purpose of the question we have to decide in the appeal, the material dates and facts are as follows:
3. In 1830 a deed (Exhibit V) was executed by the then Zamindar of Kangundi granting certain villages to his younger brother the predecessor in title of the second defendant. Amongst the villages so granted was the village of Venkatapalli. The lands which form the Dasabandham inaru and which are the subject of this suit are situated in this village.
4. The inam was granted for the upkeep of a tank in Venkatapalli village and of a tank in another village (Sogatapalli) wnich was not comprised in the grant of 1830.
5. When this grant was made by the then Zamindar in 1830, the right to resume the inam lands on forfeiture by the inamdar was in the Zamindar and he became the owner of the lands themselves subject to the obligation to maintain the tanks in 1841 and 1850. In September 1892 the Zamindar sold the lands to his gumastah, the 1st defendant, and in November of the same year the 1st defendant executed a document Exhibit I in favour of the second defendant, which states that the Venkatapalli tank had breached and the first defendant was unable to repair it, and which purports to surrender the inam lands to the second defendant.
6. In 1901 the first defendant sold the lands to the plaintiff. It is conceded that the first defendant acquired a good title to the lands in question by his purchase from the Zamindar in September 1892. The defendant's case is that the lands were legally resumed by the second defendant in November 1892, on a forfeiture by the first defendant, and that when the first defendant purported to convey to the plaintiff in 1901, he had no title to convey.
7. The question whether the second defendant was entitled to resume the lands in 1892 depends upon the construction of the grant of 1830.
8. It was contended on behalf of the appellant (the plaintiff) that the grant of 1830 did not convey to the second defendant's predecessor in title the proprietary right to the village of Venkatapalli, that if it did, the grant, being a grant by way of maintenance, only enured daring the continuance of the time for whose benefit the grant was made, and that in any view the grant did not vest in the second defendant's predecessor in title the right to resume the inam lands on a forfeiture by the holder of the lands.
9. For the purposes of the present case it is not necessary to decide whether the grant of 1830 operated as an out and out conveyance of the village mentioned in the grant, or whether the grant only enured during the continuance of the branch of the family which the second defendant represents, or whether this question is res judicata by reason of the decision of this Court in Appeal No. 39 of 1891. It may be that on the extinction of the second defendant's branch of the family the whole of the subject-matter of the grant of 1830 will revert to the grantor's successors in title.
10. The question we have to decide is - on the the true construction of the grant does the right to resume the inam lands pass to the grantee? Venkatapalli village is specified in general terms, as one of the villages 'now given by me to you.' Prima facie the grant of the village would include the right to the resumption of inam lands situate in the village. If it was intended to exclude this right from the operation of the grant, one would have expected to find some specific provision to this effect. The grant was made for the purpose of settling the younger brother's claim to a share in the family property and for the purpose of providing for the maintenance of his branch of the family. This being so, it seems extremely unlikely that the grantor whilst conveying the village itself would either intend or desire to reserve to himself the right to resume the inam lands which were situated in the village. The fact that one of the tanks which the holder of the inam lands was under the obligation to maintain, was in another village, does not in our judgment warrant the inference in the absence of any provision to that effect in the deed, that the grantor in 1830 intended to reserve to himself the right of the resumption of the inam lands.
11. Further the parties themselves appear to have acted on the assumption that the right to resume was in the second defendant. At the time of the sale of the lands by the Zamindar to the first defendant in September 1892, the Zamindar sent notice of the sale to the second defendant and intimated to the second defendant that he must thenceforward look to the first defendant in the matter of repairs (See Exhibit II). The sending of this notice seems to show that at any rate in the view of the Zamindar the right to resume was in the second defendant. The first defendant made the surrender, the second defendant accepted it, and the Zamindar at the time he sold to the first defendant treated the second defendant as the person entitled to resume.
12. We are of opinion that there was a valid resumption of the, lands by the second defendant in 1892, and that the first defendant when he purported to convey to the plaintiff in 1902 had no title to convey.
13. The second appeal is dismissed with costs.