1. No point of law arises in this appeal except in connection with items 1-19 and 25 of plaint schedule A.
2. These were originally karnam service inam lands and were enfranchised in 1906 in the name of 1st defendant who was then holding' the office of karnam. Second plaintiff and first defendant belong to what was originally the same joint family in which the post of karnam vested. According to the plaint partition never took place; but it is found as a fact that a partition did take place about 1874 and that 2nd plaintiff'sbrisance and 1st defendant's branch then became divided and have been living separately since. It is however contended that this does not affect plaintiff's claim to a share of the service inam lands on enfranchisement.
3. As it is expressed in paragraph 13 of the plaint, 'The enfranchisement of the properties converts them into family property and enures for the benefit of all the members of the service holder's family existing at the time of enfranchisement whether divided or undivided.'
4. The sole question before us is whether this contention is correct. It is admitted that before partition the office of karnam and the emoluments of that office vested in the family to which 2nd plaintiff and defendants belong and it is not seriously disputed that if the family had remained undivided up to the time of enfranchisement plaintiff as a member of it would have been entitled to a share in the enfranchised property. The latter proposition in fact follows from the rulings in Gunnaiyan v. Kamachi Aiyar I.L.R.(1903) Mad. 339 and Pingala Lakshmipathi v. Bomireddi Palli Chalamaya I.L.R.(1907) Mad 434 and although some doubt was thrown on the latter by reference to the judgment of the Privy Council in Durga Prashad Singh v. Tribeni Singh I.L.R.(1918) Cal. 362 we can find nothing in the latter which could be interpreted as over-ruling by implication these decisions which have so long been followed.
5. It is argued however on behalf of the defendants that the effect of the partition of 1874 was to put an end to any interest in the office and its emoluments on the part of plaintiff and that on enfranchisement the enfranchised lands became the property only of the office-holder, 1st defendant, and any persons who were joint with him at the time of the enfranchisement. This argument has been accepted by the District Judge who has dismissed the appeal, relying on the decisions of Spencer and Krishnan, JJ. in Pyrappa v. Syama Rao (1918) M.W.N. 849 .
6. It Will be clear from a careful perusal of the judgments in that case that the two learned Judges took materially different views of the matter. Spencer, J. undoubtedly held that the fact of partition was conclusive : that no member of a divided branch of the family would in any circumstances whatever have a right to claim a share in the enfranchised lands and that the latter vested after enfranchisement only in the last office-holder in whose name it has been enfranchised and in those persons who formed a joint family with him at the time of enfranchisement. Krishnan, J. as I understand his judgment, was not prepared to go so far. He draws attention to three unreported cases in which it has been held that members of the family of the original grantee who had become divided from the person who held office at the time of enfranchisement were nevertheless entitled to share in the enfranchised service inam. These cases are S.A. 49 of 1911, A.S. 79 of 1917 and A.S. 176 of 1917. Krishnan, J. says ' These rulings thus show that even though a person may have been divided off from the person who subsequently obtained the title deed for the enfranchised land he may prove that his right was kept in tact at the partition and may claim his share.'
7. With this view I am in entire agreement. I was a party to two of the unreported cases above cited. In A.S. 79 of 1917 as in the earlier case S.A. 49 of 1911, decided by Benson and Sundara Aiyar, JJ. it was found as a fact that the service inam lands were treated as joint family property after partition.' In the last case A.S. 176 of 1917 the question of what happened at partition appears to have been decided mainly on the pleadings. The respondent in that case endeavoured to set up before us a specific allotment of the service inam to the share of his branch at partition. We disallowed this plea in appeal in the absence of any mention of such allotment in the written statement and on this disallowment it appears to have been accepted without demur on the part of the respondent that the property remained joint in spite of partition. The plea of subsequent adverse possession was also disallowed and that plea is not now raised before us. The sole possession of an office holder being sufficiently explained by his indisputable right to exclusive enjoyment as long as he held office, could not be held to be, per se adverse to other members of the family, divided or undivided, so as to deprive them of any interest which they might possess.
8. After further consideration of the point, I remain of opinion that the fact of partition from the person in whose name the service inam is enfranchised is not conclusive against a claim to co-parcenary rights in the enfranchised inam lands. Whether the co-parcenary right survives will have to be determined as a fact in each case. It may be that the office with the inam attached to it was allotted at partition to the co-parcener then holding office as a part of his share. In such a case persons divided from him would obviously have no rights after enfranchisement. It may be that in view of the peculiar nature of the tenure and the legal impossibility of severing the lands or any portion of them from the office, the inam was kept undivided on the understanding that although till enfranchisement only the office-holder could enjoy it, yet in the event of enfranchisement, all members would be entitled to share. It may be that as in S.A. 49 of 1911 and A.S. 79 of 1917 the other co-parceners were actually allowed by the office-holder to enjoy some portion of the inam land or its profits. All that can be said is that if a divided member claims to share in an enfranchised service land the onus lies on him of proving, not only that he is a member of the original service family, but that at any partition which has taken place the inam was kept out of partition as undivided property in which all the sharers retained joint rights. This is in accordance with the law in all cases of partition.
9. If this onus is borne in mind, I do not think the practical difficulties anticipated by Spencer, J. are likely to prove very formidable; but in any case if my view of the law is correct they will have to be faced.
10. I would therefore set aside the decree of the lower appellate court as far as it relates to items 1-19 and 25 of plaint schedule A and remand the appeal for fresh disposal in the light of the above remarks.
11. In other respects the decree of the District Judge may be confirmed. -Costs in this court may be provided for in the final decree of the District Judge.
12. This is a suit for partition and the point for decision as stated by the District Judge is whether plaintiffs are entitled to a moiety of the karnikam service inams (items 1-19 and 25 schedule A) or whether these lands became the exclusiye property of defendants 1 and 2, on their enfranchisement. The parties originally formed one undivided Hindu family. Both the lower courts held that the family became divided long prior to the enfranchisement of the inam in 1906 and there was no argument before us on this point. The Munsif held that plaintiffs were entitled to a share in the service inams, the District Judge relying on the decision of this court reported in Pyrappa v. Syama Rao (1918) M.W.N. 849 held that they were not.
13. It may be said at the outset that there is no direct evidence as to what was done at partition in respect of these inams. It may of course be that they were then expressly allotted to defendant's share as representing the office holder and his family at the time of enfranchisement. It may again be that the inams were expressly reserved for the divided members or again that nothing was said as to these.
14. Now it is clear that no conclusion can be drawn from the fact that possession remained with defendant's branch as they were admittedly doing the work of the office. The decision of the Full Bench of this court in Pingala Lakshmipathi v. Bommireddipalli Chalamayya I.L.R.(1907) Mad. 434 stated that enfranchisement does not confer on the persons named in the title deed any rights in derogation of those possessed by the persons in the inam at the time of enfranchisement. It is also clear that at the time of enfranchisement the whole family was interested in the inam i.e. they had a right more or less contingent to be appointed to the office, unless some binding arrangement in derogation of that right had been entered into. So Mr. Justice Bhashyam Aiyengar in Gunnayyan v. Kamakshi Ayyar I.L.R. (1903) Mad. 349 said 'The freehold title will enure for the benefit of such person or persons as at the time the service inam was enfranchised was entitled to the hereditary office, no matter in whose name the enfranchisement was effected or the title deed issued.' It is true that the learned Judge in that case had not to consider the intervention of a partition, but the question is would that necessarily make any difference. In my opinion it would not unless as before stated some special arrangement was come to at partition whereby the inams were expressly reserved to a particular branch of the family.
15. The respondent's vakil was willing to admit that the inams were not expressly reserved to defendant's branch at partition but submitted he is nevertheless entitled to succeed on the ruling in Pyrappa v. Syama Rao (1918) M.W.N. 849 where Spencer, J. held that nobody belonging to a divided branch would have a right to come in and take a share of the property of the joint family; and Krishnan, J. said' there is nothing to show that lands were treated as joint family property either before or after enfranchisement or that any rights were reserved at partition.'
16. With deference the opinion of Spencer, J. goes too far. At the time of the partition, the inam lands would naturally be impartible and would subsequently become partible onenfrandisment and further it is clearly impossible to say in face of the authorities that the other members of the family could under no circumstances have a right to come in. Krishnan, J. was evidently impressed with the fact that the lands had all along been in the possession of the first defendant. The decisions quoted above show that this could not of itself affect the interests of the other members. Further the learned Judge goes on to say that a divided member can show that his right was kept alive at the partition and may claim his share. He however holds, on the facts of the case before him that there was no evidence to support such a claim. The onus would naturally be heavy on a divided member to establish his contention, which onus might be more difficult to discharge with lapse of time. This however is of course a totally different thing from debarring the divided member from the opportunity of proving such a claim.
17. There are three unreported decisions of this Court: S.A. No. 49of 1911, A. Section 79 of 1917, and A.S. No. 176 of 1917 (now before the Privy Council). To the last two of these my brother Ayling, J. was a party. It was held in all these cases that the divided members were entitled to share in the enfranchised inams. In S.A. 49 of 1911 it was said ' The land in question being emoluments of the Reddi office was left undivided at the time of the partition deed Exhibit A but it was not disputed that it was then treated as property in which all the members of the family had an interest.' In A.S. No. 79 of 1917 it was not contended that the suit lands fell to the share of the first defendant's branch at partition and the learned Judges say there can be no doubt that the inam lands were enjoyed in common after partition.
18. In A.S. No. 176 of 1917 Mr. Narayanamurthy who also appeared in A.S. No. 79 of 1911 did not argue the effect of enfranchisemement having regard to the decision (delivered fifteen Hays previously) in A.S. No. 79 of 1917 and following that decision and relying apparently on the fact that the defendant nowhere in his written statement set up an assignment to his branch on partition the learned Judges passed a decree for plaintiff's share in the inam lands. Thus Krishnan, J. in Pyrappa v. Syama Rao (1918) M.W.N. 849 disposes of these unreported decisions by saying that ' in all of these cases there were circumstances justifying the inference that in spite of partition the rights of divided members were kept alive.' The case in Durga Prasad Singh v. Tribeni Singh I.L.R(1918) Cal. 362 was quoted by the respondent's vakil where their Lordships oft he Privy Council held that the incidents of Ghatwali tenure in that case were not such as to give the family any rights over the property while it was in the hands of Ghatwal and that the latter was not a trustee of or managing member for the family. In that case the plaintiff relied on an asserted actual possession and receipt of their share of the rents and profits by his vendors or their predecessors in title and his evidence on the point was disbelieved.
19. It will be observed that the decision was confined to a particular instance of Ghatwali tenure and that the Madras decision in Gunnayyan v. Kamakshi Aiyar I.L.R.(1903) Mad. 349 was not quoted to or considered by their Lordships. I do not therefore understand this decision of the Privy Council as overruling the Madras case.
20. As a result of the foregoing observations, I must with great respect differ from the opinion of Spencer, J. in Pyrappa v. Syama Rao (1918) M.W.N. 849 , and on the basis of the judgment of Bhashyam Aiyangar, J. in Gunnayyan v. Kamakshi Aiyar I.L.R(1903) . Mad. 349 agree with the order proposed by my learned brother.