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Kshetrabaro Bissoyi of Namanagaram Vs. Sobhanapuram Harikristna Naidoo and ors. and Sobhanapuram Gopinatha Naidu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1910)20MLJ417
AppellantKshetrabaro Bissoyi of Namanagaram
RespondentSobhanapuram Harikristna Naidoo and ors. and Sobhanapuram Gopinatha Naidu and ors.
Cases ReferredZemindaries. In Venkateswara Yettiappa Naicker v. Alagoo Mootoo Servagaran
Excerpt:
- .....on behalf of the appellant is that the lands in suit are such emoluments and that the grant of a permanent lease amounts to a transfer within the meaning of the section. we shall assume for the sake of argument that the section applies to the lands in suit. the question then is what is the nature of the disposition which is prohibited by the words ' shall not be liable to be transferred.' it is conceded that it is lawful for the plaintiff to lease out the lands in the ordinary was further it is clear from the use of the words 'or encumbered' after 'transferred' that the latter word does not include the transfer of an interest such as is acquired by a mortgagee and which leaves the ownership in the transferor. the reasonable inference therefore is that, when it is said the emoluments.....
Judgment:

1. The plaintiff in both the suits out of which these appeals arise is the Bissoyi of Namanagaram. He in 1891 and 1899 granted two leases of certain land at rates of rent ordinary and reasonable in amount but permanently fixed. In 1904 he sued to set the leases aside and to recover possession of the lands on the ground that the leases were invalid inasmuch as the lands were service inam lands. The suits were dismissed and the plaintiff appeals. Under Section 5 of Madras Act III of 1895 the emoluments attached by the state to certain offices 'shall not be liable to be transferred or encumbered.' The contention on behalf of the appellant is that the lands in suit are such emoluments and that the grant of a permanent lease amounts to a transfer within the meaning of the section. We shall assume for the sake of argument that the section applies to the lands in suit. The question then is what is the nature of the disposition which is prohibited by the words ' shall not be liable to be transferred.' It is conceded that it is lawful for the plaintiff to lease out the lands in the ordinary was Further it is clear from the use of the words 'or encumbered' after 'transferred' that the latter word does not include the transfer of an interest such as is acquired by a mortgagee and which leaves the ownership in the transferor. The reasonable inference therefore is that, when it is said the emoluments shall not be liable to be transferred, what is prohibited is transfer of ownership. The question then remains whether the grant of a permanent lease is a transfer of ownership. Under Regulation XXV of 1802 proprietors of land may, subject to certain restrictions, transfer by gift, sale or otherwise, their proprietary right in the whole or any part of their Zemindaries. In Venkateswara Yettiappa Naicker v. Alagoo Mootoo Servagaran (1861) 8 M.L.A 27 their Lordships of the Privy Council held that a permanent lease of portion of a Zemindari is not an alienation, and cannot be considered as a transfer within the words of the Regulation. It is clear from this that the grant of a permanent lease is not a transfer of proprietary right or ownership. We, therefore, dismiss the appeals which costs.


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