1. We think the Subordinate Judge in this case was right. The first question relates to the nature of the interest at present enjoyed by the defendants. By a deed dated the 1st June 1808 the predecessor of the present plaintiff granted a mokhasa patta to three individuals of three villages without reserving any rent.
2. There is no doubt and it has been so held in some cases in this court that such tenures were formerly believed to be resumable on the death of the grantor. On the death of the grantor in this case when the estate came under the management of the Collector as Manager in 1845 these villages were resumed. That is to say, the villages were attached or kept under zuft and the profits of the villages were enjoyed apparently by the Zamindar for some years. Then in the year 1853 a petition was put in Exhibit B, stating that the villages had been granted on service tenure to the ancestors of the petitioners and that the Zamindar had been pleased to release them from attachment 'to be enjoyed by us nine sons of the aforesaid Vijia Gopalaraju (one of the grantees) I agree to pay a kattubadi of Rs. 300 a year newly fixed.'
3. Then Exhibit C is an order of the Zamindar giving effect to this arrangement and Exhibit D is a further order addressed to the office Amin and it says 'Inasmuch as the said villages were not formerly charged with Kattubadi and as Seetaramaraju one of the sons of Vijia Gopala Raju (that is to say, one of the original grantees), presented a sannad to us stating that nine sons of late Kakerlapudi Vijia Gopala Raja would pay the Kattubadi of Rs. 300 every year from the current fasli year 1263 and enjoy the same as before and act in obedience to the orders of the circar, the said three villages should be released from attachment and given to the nine persons of the family to be enjoyed by all the members of the said family.' Now the three villages have been enjoyed for the past sixty years subject to the payment of this kattubadi without any question being raised about it and you must take it, that the tenure on which they held is that they should hold the land subject to an annual payment ot this kattubadi of Rs. 300, and that in effect there was a re-grant of the three villages in 1853.
4. Those are the terms of the tenure with which we have to deal. Subsequently some years ago the Zamindar sought to resume these villages and instituted a suit for that purpose, which was dismissed. He is now seeking to take advantage of Act I of 1876 for the purpose of getting these three villages separately registered in the names of the descendants of the grantees, and having a proportionate peish-cush or Government revenue charged upon them,--thus entirely altering the terms upon which they had been held for so many years by the grantees, which terms are: that they should enjoy the villages on a payment of Rs. 300 Kattubadi annually leaving the Zamindars to pay the proportionate peish-cush which, as the mere fact of the institution of this suit shows, is probably a considerably a larger sum. Now there are, it is not denied, very numerous other villages in the Northern Circars and possibly elsewhere which are held on similar tenures and in which a similar operation might be attempted if the law allowed it. Therefore the question is one of considerable general importance, as to whether grantees holding on perpetual grants subject to the payment of a small rent under the name of Jodi kattubadi or porupu are liable to have their lands separately registered under this Act and separate assessment imposed upon them. Now the history of the question is this. Regulation 25 of 1802 provided that proprietors of land should be at liberty to transfer without the consent of Government, and such transfer should be valid, but that ' unless such sale, gift or transfer shall have been regularly registered at the office of the Collector and unless the public assessment shall have been previously determined and fixed on such separated portions of land by the Collector, such sale, gift or transfer shall be of no legal force or effect, nor shall such transactions exempt a Zamindar from the payment of any part of the public land tax assessed on the entire Zamindari previously to such transfer, but the whole Zamindari shall continue to be answerable for the total land tax, in the same manner as if no such transaction had occurred '. Notwith- standing the generality of the language of the latter part of this section, it has been held by the Privy Council in the Ettiya puram case Venkateswara Yettiyappa Naicker v. Alagu Moothoo Servagaran (1861) 8 M.I.A. 327 and elsewhere that this section does not affect the validity of transfers as between the parties but only saves the rights of Government. The regulation also provided for the manner in which the proportionate assessment was to be fixed and in Regulation 26 there was a provision as to the separate registration of the portions of settled estates which had been alienated in a Court sale. So far as I know there was no specific legislative provision as to how separate registration was to be enforced in other cases, though no doubt the right to such separate registration was recognised in certain cases. In that state of things Act I of 1876 was passed. It is described as 'An Act to make better provision for the separate assessment of alienated portions of permanently settled estates' and it says 'whereas it is desirable to make better provision for the separate assessment to land revenue of portions of permanently settled estates alienated by sale or otherwise, it is hereby enacted as follows:--
1. The alienor or alienee of any portion of a permanently settled estate, or the representative of any such alienor or alienee, may apply to the Collector of the District in which such portion is situate for its registration in the name of the alienee and for its separate assessment in respect of land revenue.
2. The Collector shall thereupon hold an enquiry as to who is the present owner of the property in respect of which the application is made.
5. So that what the Collector has to do is to find out who is the present owner, and the intention of the legislature is that it should be only where there has been a change of ownership that separate registration and assessment should take place. Now the question is whether there can be said to have been a change of ownership by virtue of this . grant of these three villages to the grantees subject to a reserved payment of kattubadi or favourable rent of Rs. 300. Assuming that the grant was a permanent one and was not liable to resumption, we do not think that it can stand on any higher footing than a permanent lease. It is a grant subject to a reservation of annual money payment or rent and therefore it seems to us to be of the character of a permanent lease. Now there is no authority for saying that a permanent lessee is included in the meaning of the term 'owner' and if it had been intended to include such a person within the term ' owner ' we think there would have been a definition clause including him. Numerous authorities may be cited in support of this view. It was expressly held by the Privy Council that a permanent lease by a Zamindar is not a transfer of his proprietary right within the meaning of Section 8 of Regulation 25 of 1802 in the case Venkateswara Yettiappah Naicker v. Alagoo Moothoo Servagaren (1861) 8 M.I.A. 327 where their Lordships observe 'this is not an alienation of the Zamindary or any part of it. It is a perpetual lease of a distinct portion of a Zamindary, which constituted a distinct portion before the appellant's title to the zamindary accrued, and such an estate could not, without great violence to the language be considered as a transfer within the wards of the Regulation.' The reference is to Section 8 of Regulation 25 of 1802 which deals with the transfer by proprietors of their proprietary right, and is therefore express authority for the proposition that a perpetual lease is not a transfer of proprietary right or ownership and does not constitute the lessee, the proprietor or owner within the meaning of Regulation 25 of 1802. As already pointed out Act I of 1876 is supplementary to Regulation 25 of 1802 which must be read with reference to it. The same view has been taken in Kshetrabarobissoyi v. Sobhanapuvam Harikristha Naidu I.L.R. (1909) M. 340 with regard to the language of Act III of 1895, Section 5.
6. There the learned Judges say, 'The question then remains whether the grant of a permanent lease is a transfer of ownership' and, following the ruling of the Privy Council which we have just referred to the learned Judges held that a permanent lease is not a transfer of the proprietary right or ownership. We may refer also to two recent decisions of the Privy Council one Hari Narayan Singh v. Sriram Chakravarthi (1911) L.R. 37 I. A. 136 and another Durga Prasad Singh v. Brajanath Bose (1913) L.R. 39 IndAp 133. 23 M.L.J. 26 in which it was held that a permanent grant at a favourable rent of the nature of the kattubadi reserved in this case, was not a transfer of ownership so as to deprive the grantor of his mining rights in the land which are incidental to his character of owner. And in the first case, 37 Indian Appeals 136, his right is distinctly based upon his possessing the character of ownpr. The Subordinate Judge has quoted various authorities to the same effect in his judgment; Markby in his Elements of Law (5th Edition) observes, ' however numerous and extensive may be the detached rights, however insignificant may be the residue, it is the holder of this residue of right whom we always consider as the owner.' The decision of the Privy Council in Robert Fischer v. The Secretary of State for India in Council (1898) I.L.R. 22 M. 270 (P.C.) does not affect the present case, because there what was contemplated from the first was an out and out gift of the village to Mr. Fischer to be separately registered and according to the construction put upon the various documents their Lordships came to the conclusion that the peishcush or poruppu as it was called in different documents, was only intended to be a temporary payment to the Zamindar pending the separate registration and assessment which was contemplated from the very first. With regard to the case in Kamalammal v. Baju Naicker I.L.R. (1896) M. 308 and the observations there cited we may point out that that was a case of gift and obviously where there is a case of gift, that is, a case of out and out-alienatation, and the donee becomes the Owner. But those cases are quite different from the present case which is, in our opinion merely that of a permanent lease at a favourable rent. We think that it be would be giving an extension which was never intended and which would be of very dangerous consequence to the Act I of 1876 if we were to hold that the creation of a perpetual lease at a favourable rent rendered the lessee the owner so as to subject him to the liability of having the land included in the lease separately registered and separately assessed. We may also add that a decision to the same effect has already been given by this Court in an unreported case by Mr. Justice Miller and Justice Munro (Appeal 141 of 1908.)
7. In the result the appeal fails and is dismissed with costs. No order as to costs of the Secretary of State.