1. The only question which arises in this second appeal is whether a surrender or relinquishment by some of the holders of a service inam in favour of the remaining inamdars is bad.
2. The inamdars were seven in number and two of them brought a suit to recover their two-sevenths share in the inam from the defendant, in whose favour the former holder of the inam had made an alienation. The suit was decreed but in the meanwhile the remaining five inamdars surrendered their interests in favour of the others. The successful plaintiffs endeavoured to have the decree modified but without success, and they eventually brought a second suit in respect of the five-sevenths share covered by the relinquishment. It is attacked by the defendant as bad.
3. In the majority of cases cited on the validity of alienations of service inam lands, the alienations take the form of gift, sale, or mortgage; and in the present case it is contended that a relinquishment by one service holder in favour of another service holder who is also his heir is as much an alienation as a sale or mortgage. The true test to be applied is, I think, to be found in the observations by Komaraswami Sastriar J. in Sundara Raju v. Seshadri A.I.R. 1928 Mad. 35. In that case the validity of a lease was in question and in examining the matter the learned Judge made the following observations:
In dealing with this question we have to see the nature of the transaction rather than the form. A lease for 99 years or for a long term in consideration of a premium paid down is as much an alienation as a sale or mortgage and I do not think that the mere use of the word 'lease' or the fact that a long term is fixed would, having regard to the mischief which is sought to be guarded against by holding that service inam lands are not alienable, make the lease valid. The real question is whether the transaction in effect places the income from the lands beyond the disposal of the holder of the office and prevents him from enjoying the emoluments which were intended to go to the holder of the office in order to enable him to discharge his duties properly.
4. If that test be applied in the present case, there is no difficulty in finding that the relinquishment in favour of the plaintiffs does not prevent the remaining service holders from enjoying the emoluments; nor does it interfere in any way with the performance of the office. The situation is on all fours with a family partition in which service inam lands are, by agreement between the members, held by one of the members on his undertaking to perform the service instead of their being divided up into a number of unworkable small fractions amongst the various members. In the present case the total valuation of the land for the purposes of the suit is Rs. 128 odd, so it must be obvious that it would be difficult if not impossible to have seven inamdars sharing this land between them and performing the duties of the office. The relinquishment does not offend against the rules laid down by Komaraswami Sastriar J. in the case cited, and I find that the decision of the learned District Judge is correct. In the result this second appeal is ordered to be dismissed with costs.
(Leave is refused).