1. This is an appeal from the decree of the District Judge of Madura in a suit brought by the plaintiff as heir of the late Zemindar of Kannivadi to recover the Zemindari from the first defendant, the Midnapore Zemindari Company, and the 2nd defendant claiming under it. The defendant company acquired the zemindari for more than thirteen lakhs of Rupees from the Liquidator of the Commercial Bank of India, which in December 1895 had advanced money on a mortgage to which the plaintiff's grand-father, the then zemindar and his son, the plaintiff's father were parties, and had subsequently obtained a consent decree for sale, and brought the zemindari to sale and purchased it after the death of the plaintiff's grand-father and the succession of his father to the estate. At the date of the Court sale in 1900 the zemindari was an unsettled palayam, but in 1905 the Bank succeeded in obtaining a permanent sannad under Regulation XXV of 1802 at the same peishcush as had been paid without alteration for more than a hundred years.
2. The ground on which the plaintiff has succeeded in the lower Court in recovering the zemindari from the transferees of the auction purchaser is that at the dates of the mortgage and the mortgage decree and of the sale thereunder, which were prior to the issue of the permanent sannad of 1905, the zemindari was held on the tenure of rendering military and police service as well as of paying the peishcush demanded; and that in these circumstances it was inalienable by the plaintiff's grand-father and his father after him for more than the terms of their respective lives. These contentions the District Judge has accepted. At the hearing of the appeal the learned Advocate-General raised the further contention that the zemindari was made inalienable by the provisions of Regulation VI of 1831.
3. The appellants did not admit that such services, if they existed, would render the zemindari inalienable, and contended that, even if this were so, this defect in the Bank's title was cured by the grant of the sannad to them in 1905 which admittedly put an end to such services if they were then in existence, and rendered the zemindari freely alienable. Their main case, however, was that in 1895 the date of the mortgage to the Bank and afterwards the zemindari was not held on any conditions of military or police service. As regards military service they contended that, when after the cession of Dindigal to the Company by Tippoo in 1792, the then poligar who had been expelled by Tippoo for failure to pay the peishcush imposed upon him, was restored by the Company, the incident of military service was suppressed by the Company in accordance with its settled policy as a necessary preliminary to the introduction of settled government. As regards the police or kaval duties, they admitted that such duties were at first required of the palayagar by the annual sannads issued to him by the Collector of Dindigal, of which several from 1796 to 1804 have been exhibited, but they contended that in accordance with the provisions of Section 5 of Regulation XXV of 1802 and the policy declared therein this police or kaval service was abolished before 1812 and referred to the Fifth Report and Regulation XI of 1816. They contended that the peishcush was permanently settled at the beginning of the last century, and that the delay in issuing permanent sannads in the case of this and some other palayams was due to other causes and without any idea of claiming military and police services from them. As regards the alienability of such unsettled palayams, they relied upon the decision of the Judicial Committee in The Gundamanaikanur case (1874) L.R. IndAp 282 not only that such palayams were hereditary, but that debts incurred by the holder for the time being were binding on the palayam in the hands of his successors, which could not be the case if they were inalienable except for the lifetime of the holder for the time being. The present contention--they contended--was an after thought. The zamindari after being held under Government management was restored to the zamindar in 1843 on payment of a sum of money for arrears which he had to borrow. To discharge this and other indebtedness of his predecessors one of the zemindars in 1861 granted a thirty years lease of the zemindari which was in the nature of a usufructuary mortgage. His successor obtained from this Court a decree in the nature of a redemption decree, and recovered the zemindari by paying off the sum payable to the lessees under the decree in respect of advances made by him to discharge the indebtedness of the estate. The mortgage to the Commercial Bank in 1895 was in respect of the indebtedness incurred by the zemindar in redeeming the zemindari. That it was regarded as binding on the zemindari was shown from the fact that the next heir, the plaintiff's father, joined in the mortgage and consented to the decree for sale.
4. As regards the inalienability of lands held on service tenure it is held in India that, even apart from statute, they are inalienable beyond the lifetime of the holder, Mayne Section 338, Papaya v. Ramana I.L.R. (1888) Mad 85 Pakkiam Pillai v. Seetharaina Vadhyar (1903) 14 M.L.J. 134 and we must so hold. The learned Advocate-General, also, relied upon the statutory prohibition against the alienation of service lands contained in Regulation VI of 1831, but as will be pointed out later, the general statutory prohibition was repealed before the date of the alienations now in question by Madras Act III of 1895, and the limited prohibition contained in that enactment does not affect the present case. The further contention that the subsequent enfranchisement of the land from service, as by the issue of the sannad of 1905 in this case, would validate alienations previously made is supported by certain observations of West, J., which appear to have been made obiter in Radhabai and Ramachandra Konher v. Anantarao Bhagavant Deshpandi I.L.R. (1885) Bom. 198 but is opposed to the recent decision of a Pull Bench of this Court, Sannamma v. Badhabhayi (1917) 81 M.L.J. 17 by which we are bound, and also to an express decision of the Privy Council in Padapa v. Swamirao I.L.R. (1900) Bom. 556 to which our attention was drawn by the learned Advocate-General. This contention of the appellant must therefore be rejected.
5. The further contention that, assuming the zemindari to have been held at first under the company on service tenure, the abolition of these services would render it alienable is supported by the judgment of West, J., in the case already referred to in which Sargent, C.J., and two other learned Judges of the Bombay Court concurred. The learned Judge observed in Radhabhai Bamachandra Konher v. Ananta Rao Bhaguant 1 (p. 212) ' So long as lands are assigned by the Sovereign to the support of a public office, or the land-tax payable on land is remitted in consideration of services to be performed by a particular family or line of holders, the lands are, according to the principles of the Hindu Law and the customary law of the country, incapable of alienation or disposal, such as to divert them, or the proceeds of them, from the intended purpose--Ravlojirav v. Balvantrav Venkatesh I.L.R. (1880) Bom. 437 . This principle has been recognized in many decisions--Mussamut Kustoora Koomaree v. Monohur Deo (1864) W.R. 39, * * * *' ' When an estate is freed from its connection with a public office, the reason arising from that connection for the preservation of the estate, intact and unencumbered, necessarily fails. There is not in the lands themselves, according to Hindu Law, any inherent quality limiting them to special kinds of ownership and devolution. They become subject to the ordinary laws of descent and disposal, just as where a particular custom concerning them has been abandoned; or they have passed into a family not subject to the custom.'
6. It has been held in some later cases that in this case the learned Judges were under a misapprehension as to the service in question in that case having been abolished, but, the principle laid down in the above passage was not questioned in any of these cases nor were we referred to any authority the other way. We entirely agree with the decision of the Bombay Court on this point and have decided to follow it. It is moreover the principle to which the Legislature has given effect in 8. 8 of Regulation XXV of 1802.
7. In the Naragunty case (1861) 9 M.I.A. 66 the Judicial Committee accepted the description of palayagars in Wilson's Glossary as having been originally petty chieftains occupying usually tracts of hill or forest, subject to pay tribute and service to the paramount power but seldom paying either, and more, or less independent; bat as having, at present, since the subjugation of the country, by the East India Company, subsided into peaceable land-holders. There can be no doubt that Kannivadi was a palayam of this nature. Dindigul, in which it is situated, had formed part of the dominions of Hyder and Tippoo for sometime when it was ceded to the Company by the Treaty of Seringapatam in 1792. At that time the palayagar was not in possession, having been expelled by Tippoo for failure to pay the revenue demanded from him. The Company restored the palayam to him; and the first question for consideration is on what terms this was done. The report of the Board of Revenue, D16, of January 1793 shows that the precise terms on which the restored Dindigal palayagars were to hold their palayams had not been settled, and that it was proposed to exact certain kaval or police services from them which were then necessary for the preservation of order. The Board transmitted a draft sannad defining the position of the restored palayagars. The annual sannads subsequently issued for some years no doubt follow this draft sannad, Exhibit E for 1795, E2 for 1797, El for 1800, E4 the corresponding muchilika for 1801, and E3 the muchilika for 1803. There can scarcely be any doubt that a similar sannad was issued for 1795 and the intervening years for which no sannad is forthcoming, and these sannads may be taken as containing the conditions which the restored palayagars were required to observe. Paragraphs 1 to 5 deal with the payment of tribute, and the rendering of kaval services. Paragraph 6 is important as showing that the Government was already impressed with the necessity of suppressing the military service of the palayagars as a first condition of the introduction of orderly government.. It provides that the palayagar is to render an account of the number of armed men in the palayam and to abide by the orders of the government as regards the dismissal of such of them as may appear unnecessary for the performance of the duties of the palayam, and proceeds 'Since it is the duty of the Circar to protect the country from foreign enemies you are only to take a few of the inhabitants of the palayam into your service.' We have revised the translation as the result of the discussion during the argument. The playagar was again enjoined not to take up arms ' because the Company's troops have been specifically appointed for that purpose.' Any breach of the conditions was to involve forfeiture. Except as to the amount of the peishcush the terms continued the same down to 1803 (Exhibit E3) after which there is no evidence of any exchange of sannads and muchilikas.
8. Exhibit XXVI of 2nd of October 1799 is a proclamation by Major Bannerman addressed to the inhabitants of the Tinnevelly palayams after the rebellion of the Tinnevelly palayagars ordering the surrender of arms and threatening those who retained them with death. In their Revenue letter to Port Saint George of 11th February 1801 (Fifth report page 51 : Edition Higginbotham) the Court of Directors sanctioned the gradual introductions of the permanent settlement into Madras, but laid down (p. 5 3) that it was of first importance that ' all subordinate military establishments should be annihilated within the limits subject to the dominion of the Company', and observed that this was so incontrovertible as to preclude all expectations to be derived from an attempt to introduce a permanent system of land revenue or the exercise of a regular judicial authority till this essential preliminary was secured. In conformity with these instructions, Lord Clive on 1st December 1801 issued a proclamation addressed to the palayagars, sherogars and inhabitants of the Southern Provinces announcing the determination of the Government to suppress the use and exercise of all weapons of offence without the authority of the British Government. The proclamation went on : 'The military service heretofore rendered by the palayagars and sherogars having been suppressed, and the Company having in consequence charged itself with the protection and defence of the palayagar countries, the possession of fire-arms and weapons of offence is manifestly become unnecessary to the safety of the people.' General disarmament was therefore enjoined, but the palayagars and zemindars were permitted' to retain a certain number of persons carrying pikes for the purpose of maintaining the pomp and state heretofore attached to the persons of the palayagars ', but the number was to be fixed and the pikes issued to them stamped and registered. The proclamation concluded by announcing to the palayagars, 'the intention to establish a permanent assessment of revenue on the lands of the palayams upon the principles of zemindari tenure, which assessment being once fixed shall be liable to no change in any time to come, that the palayagars becoming by these means zemindars of their hereditary estates will be exempted from all military service, and that the possessions of their ancestors will be secured to them under the operation of limited and defined laws, etc,' The District Judge has read the concluding paragraph, which was merely an announcement of the policy declared in the despatch from the Court of Directors, as limiting the announcement earlier in the proclamation that the military service hitherto rendered by the palayagars and sherogars had been suppressed; and he has held that the intention of the proclamation as a whole was that their military service was to continue until the issue to them of permanent sannads. Reading the proclamation as a whole and in the light of the despatch from the Court of Directors we think it is clear that the suppression of military service was intended to be unconditional.
9. It has however been contended that military service was exacted from the zemindar even after the proclamation, and as much importance was attached by the District Judge to the documents exhibited by the plaintiffs to show this, Exhibits D, E, F, G series, it is necessary to refer to them in some detail. Exhibits D to D 8 (b) are extracts from the Dindigul Diary kept by successive Collectors. The other exhibits of importance in this connection axe litters written by or to this Palayagar of Kannivadi relating to the events mentioned in the diary. The District Judge relies on these to show that, after the British occupation, military services were being rendered. Most of these exhibits relate to the period anterior to 180, and in many cases relate only to police duties. Among the latter duties may be instanced the attempts made to seize an outlaw named Tombu Gour for whose arrest a reward had been offered, referred to in Exhibit D3 (a) under dates Sepetmber 25th, December 16th, 1796 and January 10th, 1797; and the Collector's warning on June 10th, 1795, to the palayagar in Exhibit D, which the palayagar acknowledged in D4 on July 4th, 1795, against harbouring a rebel named Gopaya Naick; and the Assistant Collector's inayatnamah, Exhibit D6, dated July 25th, 1799, to the palayagar directing him to seize some marauders named Pujari Naick and Alwar Pillay, whom the Tahsildar had been endeavouring to capture by placing a guard of peons at the entrance of the Kannivadi District, as appears from the entry of January 18th, 1799, in Exhibit D2. The Assistant Collector's order of July 25th was acknowledged next day by the palayagar in Exhibit D7, in which he repudiates the idea that he has been friendly with these marauders, and on January 19th in Exhibit D2 he promises the Collector not to assist them.
10. The Collector's directions to make good property stolen by thieves belonging to his estate in the entries in Exhibit D3 (a) of November 4th, 1796, of March 4th, and 7th, April 16th and September 6th, 1797, and in Exhibit D3 (6) under dates August 29th, September 18th and October 30th, 1797, and in Exhibit Dl under date of June 27th, 1796, merely indicate that the kaval system, according to which kavalgars or watchmen are held responsible for tracing the whereabouts of stolen jewels, etc., and, if they fail are themselves required to make good the value of such articles, existed in those early times. In those days it appears from the entries of April 4th and 5th, 1797 of Exhibit D3 (a), from the entry of July 21st 1798, of Exhibit D3, and from D16 that there was a kaval fund for remunerating kavalgars. This fund is stated in Exhibit D3 (a) to be quite unconnected with the peishcush or tribute payable in 'kists' (or instalments) by the paiayagar for his palayam and it appears from Exhibit D16 that it was a fund raised by contributions of 'watching fees' paid by the subjects of the Crown into the hands of the palayagars who were held responsible for its administration. This resembles the present day system under which village 'kavalgars' or watchmen are appointed by the villagers to watch their crops and other property and every ryot contributes at the time of harvest a few measures of grain from his stock at the threshing floor for the remuneration of the kavalgars for the current year. If the zemindar held any lands on condition of rendering kaval service they must have been resumed before 1812, as will be shown later.
11. Again we find the Collector in Exhibit D2 on January 9th 1799, instructing the palayagar to arrest any Europeans (presumably deserters from the East India Company's British troops) found straying more than two miles from camp without a passport. Again in Exhibit D17 in October 1797 the palayagar of Kannivadi is stated to have promised his assistance to the Collector against the palayagar of Komaravadi, a deposed palayagar who had escaped from confinement at Vellore. The nature of the assistance to be rendered is not mentioned in this Exhibit, but from Exhibit D3 (b) it appears that he and four or five other palayagars were to come with their respective men and act as an escort of ' old Lucki Naick ' in conducting him from Komaravadi as soon as the arrest of this escaped prisoner was effected.
12. So much for the records relating to the period before the formal abolition of military duty.
13. The District Judge has concluded from certain Exhibits of a later date than 1801 that military assistance was rendered by this palayagar during the fighting by the Company's army against Virupakshi Naick, and against the dumb boy called Panchalakurichi Oomayan who led an insurrection against Government, and also in the rebellion of Lakshmana Naicken, in the time of Collectors Hurdis and Parish in 1803 and 1804.
14. An account of the part played by the Kannivadi palayagar in connection with the fighting that took place on those occasions is given in Exbibits F and G. Both of these records proceed from interested sources. Exhibit F is a petition signed by the zemindar of Kannivadi in 1837 and presented to the Board of Revenue, in which he appealed for the restoration of his palayam which had been kept under the management of Government, and Exhibit G is a genealogical history of the family written by another member of the family. It was to the interest of the writers of these documents to magnify the meritorious services rendered by various palayagars of Kannivadi to Government from time to time. Gl, G2, G4, G5, G6, G7, and G8 are records similar to G.
15. Exhibits G and G7, mention the fact that the palayagar's men were then in 1804 without arms (no doubt in pursuance of Government's declared policy), and thus when they accompanied the Company's sepoys in pursuit of Lakshmana Naicken it was necessary for Mr. Parish to arm 20 of them before they could be of any assistance to him. At the same time the work that they were expected to perform seems to have been that of guarding roads and passes, acting as spies of the enemies' movements and as guides to the British troops through the forest tracks and hill passes. They could not fight because they had no arms, A more reliable account of what happened is to be found in the contemporary document, Exhibit E5 of July 1st 1804, in which it is stated that 15 men from the Kannivadi Palayagar people were sent as guides to Captain Hamilton's army ' because they knew the different routes,' In Exhibit D13 the palayagar of Kannivadi reports in June 1804 to Mr. Parish that he had despatched a spy to bring intelligence regarding the rebels. It would be absurd to treat this palayam as a feudal fief held on condition of rendering military service simply because the holder on one or two occasions assisted the intelligence branch of the Company's regular army.
16. The allusions in Exhibits D11 and D12 to 'our troops' and 'our detachment' in the account of the engagement with Lakshmana Naicken only show in our opinion that the Kannivadi men identified their cause with the cause of the Government, and we think that the description of fighting refers to the doings of the Company's soldiers, and does not mean that any military establishments of the palayagar were employed in the actual fighting,
17. Exhibits D10, E7, E8, E13, refer to the supply of bamboos to be paid for, for the use of the British troops (evidently in order to provide them and their officers with quarters). Exhibit E5 relates to the supply of cattle (probably for feeding the troops). It was regarded as the duty of the whole population to furnish the necessary supplies against payment to the officers of Government and still more to its armed forces in the field. The practice of making such requisitions for the supply of touring officers is not yet altogether obsolete. The fact that in the years 1803 and 1804 such requisitions were made and complied with in a few instances does not in our opinion show that the palayam continued to be held on condition of rendering military service and still less that it was so held at the time of the alienations now in question nearly a hundred years later.
18. We have next to deal with the well known Eegn. XXV of 1802 on which the permanent settlement rests in this Presidency so far as it affects the present case. It was held by the Judicial Committee in Collector of Trichinopoly v. Lekkcamani to be clear 'that the affirmative words of the second section 'that, in consequence of the assessment the proprietary right of the soil shall become vested in the zemindars,' etc., did not either give or take away from the former owners of lands not permanently assessed any rights which they then had. It merely vested in all zemindars an hereditary right at a fixed revenue upon the conclusion of the permanent assessment with them. It is a maxim that affirmative words in a statute without any negative expressed or implied do not take away an existing right.' This interpretation is strongly supported by the title of the 'Regulation which is ' for declaring the proprietary right of lands to be vested in individual persons, and for defining the rights of such persons, under a permanent assessment of the land revenue.' As regards the somewhat ambiguous preamble, their Lordships observed that it did not assert a right, on the part of Government to deprive or dispossess Zemindars in their life-time, or their heirs after their deaths, for the purpose of transferring their rights to Government, or to new holders at the will of Government, independent of any considerations connected with the realization of Revenue. They then proceeded to explain the sweeping statement in the preamble to Regulation XXXI of 1802 that the ruling power had in conformity to the ancient usage of the country constantly reserved to itself and had exercised the actual proprietary right of lands of every description, and that consistently with this principle all alienations, of land, except by the consent of the ruling power, are violations of that right, and observed that 'the words alienations of land' referred, not to mere transfers from one proprietor to another, but to grants for holding lands exempt from the payment of revenue.' Finally their Lordships observed ' there is no difference in this respect' (its hereditary character) 'between a palayam and an ordinary zemindary. The only difference between a palayam or zemindary which is permanently settled and one that is not, is that, in the former, the Government is precluded for ever from raising the revenue; and in the latter the Government may or may not have that power.' The latter words appear to mean that Government may in a particular case have precluded itself from raising the revenue, even though it has not issued a permanent sannad.
19. Applying these principles, their Lordships proceeded to deal with the connected case Oolagappa Chetty v. Arbuthot . The judgment is appended to the judgment in Marungapuri case which follows 1. I.A. 282. In the former case a razinamah was entered into in the time of the late zemindar making the zemindari liable for debts incurred by him. It having been held that the razinamah could be enforced except by suit, a suit was instituted but discontinued on the death of the zemindar by order of the Court which directed a fresh suit in be brought agains; the heir when nominated. A suit was accordingly brought against the minor zemindar in which it was claimed that the revenues and corpus were equally answerable (p. 270). The Civil Judge held the debt binding on the revenues of the zamindari in the hands of the successors and decreed the claim to that extent. The High Court reversed this decision, and held that, as the palayam in question was only held on life tenure, it could not be made liable in the hands of the son for the debts incurred by the father. The Judicial Committee held that prima facie the palayam was hereditary and that being so, apparently as a matter of course they held it liable in the hands of the son for the father's debts. If the revenues are 1iable in the e hands of succeeding zemindars, that is equivalent, to saying that she corpus is liable, and the decision would be conclusive of the present case, but for the fact that the point that the palayam was inalienable by reason of its owning military and police service was not raised. It is however very significant that it was not raised in that case though the defendant on the record was Mr. Arbuthnot, the Collector of Madura who represented the minor zemindar as agent of the Court of Wards and would have been likely to know if the holders of unsettled palayams were liable to render any services such as to render their estates inalienable and an exception to the general rule as to the 'free liberty,' of proprietors of land to make alienations which is conferred by Section 8 of the Regulation. This contention has not been raised in any other case before the present, and this consideration adds to the already heavy burden on the plaintiff of showing the existence of the bar to alienaiion on which he relies.
20. The question of the continuing liability of the palayagar for police service may now be dealt with in connection with the provisions of Section 5 of the Regulation. These provisions show a general intention to release land-holders from the performance of police services, except in special cases to be dealt with in the permanent sannad when issued, and to resume all lands and resumes granted for police service. The first part of Section 5 provides as follows : 'The Government having charged itself generally with the maintenance and support of such establishments as may be requisite in the several provinces, cities and towns for the better keeping of the police, no lands shall be considered, as heretofore, to be holden on the condition of performing police duties, unless the same shall be specially provided for in the sannad-i-milkeut-i-istimrar.' With this must be read Section 15, which provides that zemindars shall aid and assist the officers of Government in apprehending and securing offenders of all descriptions, and they shall inquire and give notice to the Magistrates of robbers or other disturbers of the public peace who may be found, or who may seek refuge, in their zemindaris, an obligation which was not regarded as incompatible with the power of alienation, and is very similar to that imposed on people generally and landowners in particular by Chapter IV of the Code of Criminal Procedure. Read literally Section 5 operated to release all lands forthwith from the condition of rendering police service. If this be too strict a construction, it at least shows that it was the policy of the Government to release them, and there is nothing in the Regulation to prevent effect being given to that intention without the grant of a permanent sannad, Police services had been required in this case by the annual sannads of which E3 for fasli 1213, (1803-4) is the last. The issue of these sannads appears to have been discontinued, and there is no evidence of any police service being demanded after 1804. Admittedly police service was as a rule abolished in all the palayams and zemindaries that received permanent sannads; and, as will be seen; the fact that no permanent sannad was issued in the case had nothing to do with the question of police service, it appears from the Fifth Report that the kaval lands or lands granted for the discharge of kaval duties which were quite different from those which the officers of an organised police force are expected to perform had been resumed before 1812; but as regards Madras, the Report does not deal with the question of police. A police force under officers called darogas had been introduced but did not work well; and, in accordance with the recommendations of Sir Thomas Munro, the Court of Directors issued instructions which were embodied in Regulation XI of 1816. By this measure recourse was had to the indigenous police system of the country. Under that system police as well as revenue duties had been imposed on the village headman, who was responsible as to both to the zemindar or palayagar where there was one. By the Regulation, the headman as regards police duties, was made responsible to the Tahsildar or Indian Magistrate of the locality, and zemindars were deprived of all police powers except in so far as any of the duties of the Tahsildar might be conferred upon particular zemindars by the Government under Section 39. This the Court of Directors considered should only be done in particular cases of approved respectability and willingness to co-operate in promoting the views of the Government. Section 39 was repealed by Act XVII of 1882 as having become obsolete, and thus vanished the last trace of the police powers formerly vested in the zemindar as head of his district, The Police Act XXIV of 1859, which took away the control of the police from the Tahsildars and created a separate Police Department, denned Police, in Section 1 as including 'general' and village police, Cuttoobadies, Kavalgars, and all other persons who exercise any police functions throughout the Madras Presidency. This was before the repeal of Section 39 of Regulation XI of 1816, and there is no suggestion that the Kannivadi zemindars were ever regarded as coming within this definition of Police. Be this as it may, this definition of Police was repealed by Section 2(2) of Madras Act III of 1895, which substituted the following definition. ' The word police shall include all persons appointed under this Act,' thus excluding Cuttoobadies, Kavalgars, etc., whose police functions had become obsolete. The same enactment also repealed Regulation VI of 1831 which made lands held on service tenure inalienable, and only re-enacted the provision against alienation as regards village officers, except in the Scheduled Districts. In the Scheduled Districts the prohibition against alienation was continued, not only as regards the emoluments of village officers, but also as regards other emoluments granted or continued in remuneration for the performance of duties connected with the collection of the revenue or the maintenance of order.'
21. In the rest of the Presidency the legislature evidently thought that village offices were the only offices the endowments of which required to be protected from alienation. This enactment, which came into force before the alienation now in question, goes far to show that at the date of that alienation, the services formerly required of the palayagars and others had become entirely obsolete and that there was no longer any sufficient reason for prohibiting the alienation of their lands on the grounds of public policy.
22. It is not questioned that the issue of permanent sannads under Regulation XXV in the terms in which they were issued released the grantees from conditions of police service, and there is no reason to suppose that the delay in issuing the sannads in this and other cases was due to any design of retaining the right to police services which were regarded as a thing to be got rid of as quickly as possible. In this connection an observation in Ghauki Goundan v. Venkataramanier (1870) 5 M.H.C.R. 208 which was referred to with approval by Scotland, C.J., in Lekkamani v. Puchaya Naikar (1871) 6 M.H.C.R. 208 may be cited again, and with greater force, now that the assumption that palayagars had only life estates has been displaced : ' The palayagar of an unsettled palayam may, according to the generally received theory as to his rights, have only an estate for life in his palayam; but for such an estate as he has, his relation to the Government on the one side and to the occupiers of lands within his palayam on the other side, resembles that of a zemindar.' There is really no reason now why an unsettled palayam should be inalienable any more than a settled one.
23. As regards the revenue history of this particular palayam, in 1795 a commission reported that these palayagars should be allowed personally to retain one-third of the computed value of their land. Mr. Hurdis, who was Collector from September 1796 to December 1803, was directed to carry out a field survey and to present to the Board of Revenue a detailed report such as would enable them to arrange a permanent settlement (Nelson part 4 p. 31), Unfortunately, as Mr. Nelson observes, he over-estimated the capabilities of the District and the permanent settlement of Dindigal introduced on the basis of this survey had to be abandoned. Exhibit XXVI (b1) shows the total beriz of the Kannivadi palayam as estimated by Mr. Hurdis. Of this the palayagar was allowed as before provisionally to retain 30 per cent, leaving a peishcush of Pagodas 10,897 or Rs. 38,139-14-2 payable to Government. This peishcush did not represent 30 per cent of the real income, or any thing like it, and owing to the defective nature of Mr. Hurdis's assessment and possibly other reasons, a permanent sannad was not issued to this and other palayagars on the basis of his assessment. From 1816 to 1843 in consequence of the palayagar's inability to pay the peishcush, Government took the palayam under its own management and allowed him the 10 per cent on the net collections. In 1843 the palayam was restored to the palayagar, Exhibit XXVI (c). The muchilika which was then taken from him appears to proceed upon the footing that all he was liable to do was to pay the peishcush demanded of him and that in default of payment the palayam was liable to be sold. It certainly goes to show that no condition of military or police service was recognised as existing at that time. Exhibits XXIIg and XXIIh, dated 9th July 1843 are mortgages of the zamindari to pay previous debts and save the zemindari from annexation by Government. Exhibit XXIII is a lease for 30 years dated 20th July 1851 in discharge of debts which are stated to have been contracted by the zemindar himself, his father and his ancestors. Exhibit H. series show that negotiations went on for some years after this as to the grant of a permanent sannad and that Government were prepared to grant a permanent sannad without increasing the peishcush, but that this intention was not carried into effect in the supposed interest of the zemindar himself. Exhibit H5. Nothing is to be found about any military or police service in this correspondence. In 1881 on the death of the zemindar Bangaru, who had executed the lease of 1861, his brother who succeeded brought a suit to recover the zemindari from the lessee. In his plaint he raised the contention that the alienations of his predecessors were not binding on the estate in his hands, and this was the subject of the 4th issue. It was not however suggested that the inalienability depended in any way on the duty of rendering military and police service. The District Judge held that the lease was not binding on the plaintiff as a lease but was binding on him as a mortgage, and gave a decree for redemption. Before the High Court the zemindar does not seem to have pressed the appeal on the ground that the alienations by his predecessors were not binding upon him. Probably the decision of the Privy Council in The Marangapuri case (1879) L.R. 1 I.A 282 was held conclusive on this question in the High Court where the controversy appears to have been as to the amount of the mortgage debt. In connection with this litigation and the subsequent redemption the zemindar contracted usufructuary mortgages Exhibits 7, 3, 5, 9, 6, 7a, 4, 22 series 8 and 10, and lastly a consolidating mortgage Exhibit 2 on 14-12-1895 and a supplementary mortgage Exhibit 18, dated 10-2-1898. Exhibit 2, to which the then zemindar and his son the father of the present plaintiff were parties, was for upwards of ten lakhs of rupees.
24. The Bank brought O.S. 23 of 1897 on this mortgage and obtained a consent decree for sale against the zemindar and his son on 16-8-1898, Exhibit XVd, by, which the defendants were to pay Rs. 13,15,000 on or before 15-8-1900 and the estate was to be sold in default. The plaintiff's grand-father died on 16-7-1899. On 14-3-1900 the Bank applied for an order absolute for sale under Section 89 of the Transfer of Property Act, and on 21-3-1900 the Court made the order as follows : 'Defendant by Mr. Subramania Aiyar does not put forward any objection. Decree made absolute. 'The estate was subsequently sold and purchased by the Bank, who obtained a sannad in 1905, and then sold it to the present 1st defendant. The plaintiff's father died on May 24th 1911, and it was in the present suit instituted on 23-7-1914 that the contention that the zemindari was inalienable on account of the zemindar's liability to render military and police services was raised for the first time.
25. In our opinion this contention is only an ingenious afterthought, The liability of these unsettled palayams for ancestral debts was treated by the Privy Council in The Gantamanaickanur Case (1879) L.R. 1 IndAp 282 as necessarily following from the establishment of the hereditary nature of the state. There are now no police or military services to be rendered. In this particular estate there have been continued alienations by way of mortgage which have been treated as binding by succeeding zemindars. Though the contention that they were not binding was raised in the litigation of 1881, this was not on the ground of any military or police service, and the contention was not pressed in the High Court. Lastly the fact that the plaintiff's father was party to the mortgage of 1895 and to the consent decree and did not object to the sale shows that the alienable character of the zemindari was fully recognised.
26. The learned Advocate-General has relied on certain decisions such as The Udayarpalayam case I.L.R. (1901) M. 562 and The Ramnad case I.L.R. (1893) M. 618 in which it was held that certain zemindaris restored by British Government to the heirs of the former zemindars were restored with the incident of imparibility which had originally attached to them in their character of petty chieftains rendering service to the paramount power, but these cases did not decide or proceed on the footing that any such services were still to be rendered; and, as those were cases in which a permanent sannad had been issued, it is clear that there were no such services in existence at the date of suit. He also relied on certain decisions as to Ghatwal tenures in Northern India but in these cases the succession is not purely hereditary and Government by the exercise of the right to choose the successor from and among the heirs, manifests its continued recognition of the office of Ghatwal even though the duties have become nominal. On a full consideration of the whole question, we are unable to agree with the District Judge, and have come to the conclusion that the military and police services for which the zemindar was at one time liable had been abolished long before the alienations in question, even though Government for quite other reasons had delayed the issue of a sannad under Regulation XXV of 1802 by which the peishcush payable by him as a peaceable land owner exempt from such services would have been finally settled.
27. The only remaining question is, where the suit is barred on the ground that, when the suit was instituted, more than twelve years had elapsed from the time when the 1st defendant's vendors got into possession under their purchase at the Court auction. There can be no doubt, that assuming the estate of the zemindar to be for life only as contended by the plaintiff, the zemindar for the time being would ordinarily represent the estate as held in Radhabai v. Anantrav I.L.R (1885) Bom. 198 and numerous other cases and that therefore time would have begun to run against the plaintiff's father from the date when the Bank got possession and the suit would be barred as more than twelve years had elapsed before it was instituted. The question, however, arises whether the plaintiff's father had not debarred himself from suing to re cover possession and whether time did not begin to run only from the date of his death and plaintiff's succession. As has been already stated, the plaintiff's father joined in the mortgages of 1895 and consented to the decree being passed against him for the sale of the zemindari and personally for the mortgage debt and did not object to the order for sale. At the date of the mortgage and the consent decree he was only a reversioner with a spes successionis and had no power to alienate his interest in the zemindari either by executing the mortgage or consenting to the decree, and these alienations did not take effect against him when he succeeded, as held in Ramasami Naik v. Bamasami Chetti I.L.R. (1906) Mad. 265 which is in accordance with a very recent decision of the Judicial Committee not yet reported. The case has subsequently been reported in Amrit Narayan Singh v. Gaya Singh (1917) 34 M.L.J. 298 Rep. At the date however of the application for the order for sale, which he did not oppose, the plaintiff's father had succeeded to the estate, and his life interest in the zemindari was liable to be attached and sold in execution of the consent decree in so far as it made him personally liable. If the consent decree had been for sale only, it may be that the sale would not have passed his life interest even though he did not oppose the order for sale, but he was also personally liable on the decree and at the date of the application for the order for sale he had no answer to an application for the attachment and sale of his life interest in execution of the decree against him personally. In these circumstances it may be that the sale was binding on his life interest; and, if so, it is argued he was not in a position to sue for possession and that his successor had a fresh starting point. The starting point under Article 142 is the date of the dispossession or discontinuance. To avoid the bar it would apparently be necessary to hold that the fact that the plaintiff's father had debarred himself from suing for possession took the case not only out of Article 142, but also out of Article 144, as the present plaintiff's father would appear to come within the word plaintiff as used in that article, and to make Article 120 applicable to the case. The starting point in that article is, when the right to sue accrues, and there would be no difficulty in holding that the right to sue does not accrue until there is some one who can sue successfully. See Murray v. East India Company 5 B. & A. 204 Musurus Bey v. Gadhan (1894) 2. Q.B. 352 and the recent decision of the Privy Council in Meyappa Chetty v. Supramanian Chetty (1916) L.R. 43 IndAp 113 In the view we take of the other question it is unnecessary to discuss or decide the point In the result the appeal must be allowed and the suit dismissed with costs throughout.