1. Plaintiff and defendants 1 to 31 are the descendants of five brothers. The plaintiff represents one branch, defendants 1 to 6 another branch, defendants 7 to 9 the third branch, defendants 10 to 12 the, fourth branch and defendants 13 to 31 the fifth branch. The plaintiff's suit is for partition of his share of the family property. The plaint property was karnam service inam and was enfranchised in 1903 and inam title deeds were issued in 1904.
2. Defendants 1 to 9 pleaded that 40 acres and odd were not joint family property and the plaintiff could not claim a share of it. Defendants 13 to 31 pleaded that 23 acres and odd were their separate property and the rest of the property, about 40 acres odd, was joint family property and they, as representing the fifth branch, were entitled to one-fifth share.
3. The Subordinate Judge granted a preliminary decree for partition in favour of the plaintiff for one-fifth of the plaint property. Against that decree defendants 7, 8 and 9 preferred one appeal and defendants 13 to 16, 31, 17 to 22 and 24 to 30 preferred another appeal. The District Judge dismissed both the appeals and affirmed the judgment of the Subordinate Judge. The defendants have preferred this appeal, and evidently defendants 1 to 9 and 13 to 31 have made common cause against the plaintiff.
4. The first contention urged by Mr. Somayya for the appellant is that the enfranchisement was for the benefit: of the karnam and the other members of the family had no interest in the plaint property. At the time of the enfranchisement the karnam's office was held by Venugopal Rao under whom, the defendants 13 to 31 claim. The argument of Mr. Somayya is that Venugopal Rao was karnam at the time of the enfranchisement and the enfranchisement must therefore be for his benefit and the inam lands enfranchised became his private property, and he strongly relies upon the recent decision in Venkata Jagannadha v. Veerabhadrayya ILR (1921) M 643 : 41 MLJ 1. What really happened in this case was : Venugopal Rao was appointed karnam in the place of his father. He brought a suit, S.S. No. 47 of 1902, for recovery of the inam property attached to the office of karnam against the relations and a decree was passed in his favour for possession of 3 puttis and 19 tooms, vide Ex. 1. This decree was affirmed on appeal by the Collector of Goda-vari District on 14th January, 1904, vide Ex. 1. Before the appeal was disposed of proceedings for the enfranchisement of the karnam's. inam were started and the Inam Deputy Collector passed proceedings on 2nd August, 1903 and directed that inam title deed should be issued in the names of the persons who were actually in possession of the land constituting the karnam's inam. Vide Ex. 11. Venugopal who was given a decree for possession of 3 puttis and 19 tooms was unable to get possession of what was decreed to him by reason of the issue of an injunction in a suit by some of the defendants against the delivery of the property to him. The Inam Deputy Collector in his proceedings did not order patta in the name of Venugopal Rao. He ordered patta to be issued only in the names of persons then in actual occupation of the inam lands. His father Kama Razu was in possession of some of the inam lands and his name was included in the inam patta. If the enfranchisement was for the benefit of the karnam then in office, no doubt Venugopal Rao would have been entitled to the whole of the enfranchised land. But the Inam Deputy Collector for reasons which are not quite clear directed patta to be issued only in the names of persons in actual occupation, and he even included the name of one Ammanchi Lakshmamma, the widow of one of the members of the family on the ground that she had an interest in the inam property. In Venkata Jagannadha v. Veerabhadrayya ILR (1921) M 643 : 41 MLJ 1 it was decided that when land is enfranchised and patta is issued in the name of a karnam, the enfranchised inam land becomes his private property and the members of his family have no right to it. The decision, therefore, has no application to the facts of the present case. If the enfranchisement was in the name of Venugopal Rao the other members of the family could not claim a share of the property. The enfranchisement is not in his name, but in the names of the other members of the family. The contention that the enfranchisement was to enure for the benefit of the karnam in office at the time of the enfranchisement receives no support from the decision in Venkata, Jagannadha v. Veerabhadrayya ILR (1921) M 643: 1921 41 MLJ 1 On the other hand, their Lordships lay considerable emphasis on the fact that the inam patta should not be treated as a mere formality but should be treated as giving title to the property to the person in whose name the inam patta is granted. They observe at page 655 : 'When accordingly on the 21st March, 1906, the title-deed already quoted was granted by way of an inam to the appellant's father and was in express words confirmed to him, his representatives and assigns, to hold or dispose of as he or they think proper, the Board is of opinion that that enfranchisement must be given full effect to, and that it is not subject to be eviscerated or altered by the claim for partition or division put forward in the present suit. 'This decision overrules the decision in Gunnaiyan v. Kamakshi Aiyar ILR (1902) M 339 and the cases which follow that case. Their Lordships approve of the Full Bench decision in Venkata v. Rama ILR (1884) M 249. in which it was held that the enfranchisement of the service inam in favour of the holder of the office for the time being, though he had no hereditary title to the office, enured for his benefit and his title was not liable to be defeated at the suit of the hereditary office-holder who was able to evict him from the office. The principle of the decision is that the land which is given to a village officer is Government land and the village officer is only entitled to the emoluments or income from the land so long as he holds the office. Whether the office be hereditary or not, the service inam land is only attached to the office and if the office happens to be held by any person, whether with or without hereditary right to it, the enfranchisement in his favour confers an absolute title on him. His relations who on his demise or on his dismissal would succeed to the office could not claim the enfranchised land as belonging to the family of which the karnam is a member. It follows, therefore, that the Government has an undoubted right to enfranchise the inam in favour of any person, and no one has a right to question it. No doubt according to inam rules the enfranchisement is made in favour of the person holding the office. But that would not give a right to the other members of the family to a share in the land so enfranchised in favour of the holder of the office. Vide decision in Venkatarayudu v. Venkataramayya ILR (1891) M 284.
5. In this case rightly or wrongly the Inam Commissioner declined to issue inam patta in the name of Venugopal Rao who was the holder of the office of karnam at the time of the enfranchisement proceedings and though he. was aware of the fact that Venugopal Rao had obtained a decree for possession of the inam land, yet he declined to make out a patta in his name unless he executed the decree within two months. The two months having expired and the decree not having been executed, the Deputy Collector proceeded to order pattas according to possession. The inam pattas therefore conferred title on the persons in whose names the pattas were issued. In Tanya Gowdu v. Vonamo Gowdu ILR (1898) M 204. pattas were issued in the name of the members of the family of hereditary officeholders although only one of them was the actual office-holder. It was held that such a grant was not illegal. The learned Judges observe at page 206 : 'We cannot find any legal foundation for the view which appears to be held by the two lower Courts that if on enfranchisement the Government grants a portion of the inam lands to a man who, although a member of the family of hereditary office-holders, was not himself actually 'in office at the time of enfranchisement, such a grant is illegal and must be set aside by a Civil Court.' This case is against the contention of the appellants that the grant enured for the benefit of Venugopal Rao. In Dharanipragada Durgamma v. Kadambari Virrazu ILR (1897) M 47 : 7 MLJ 233. the lands constituting the emoluments of the. office, of the karnam were enfranchised in favour of a widow who had been in possession since the death of her deceased husband which took place about 18 years previously. They were subsequently sold by her. The Court held that the reversioners could not dispute the alienation. With regard to the Full Bench ruling in Venkata v. Rama ILR (1884) M 349. the learned Judges observe : ' That decision proceeded on the broad ground that the plaintiff did not hold the office of karnam at the time of the enfranchisement and, therefore, had no title to sue for the lands and that the land when enfranchised was at the disposal of Government and alienable to whomsoever the Government pleased.' In this case as I have already observed the Inam Commissioner rightly or wrongly refused to grant inam patta in the name of Venugopal Rao who was the karnam in office and who had obtained a decree for the possession of the inam land and it must therefore be taken that the enfranchisement in the names of the persons mentioned in Ex. 11 enured not for the benefit of the karnam but for the benefit of the persons in whose names the pattas were made out. That the inam patta gives a good title is clear from a recent decision of a Bench of this Court in Krishna Sastri v. Singaravelu Mudaliar (1924) 48 MLJ 470. In that case Sir William Ayling, J. observes as follows: 'I think the judgment of the Privy Council Venkata Jagannadha v. Veerabhadrayya ILR (1921) M 643 : 1921 41 MLJ 1. amounts to stating that the grant of a title deed at enfranchisement of a service inam (unlike the case of a personal inam) does confer a new title ; and that, for this reason, it cannot be questioned by other members of his family.' This decision was followed in a recent case by Wallace, J., in Gouri-kantam v. Ramamurthi : (1924)46MLJ482 . He observes at page 490 : ' Since, however, I hold it is clear on the authority of Venkata Jagannadha v. Veerabhadrayya ILR (1921) M 643 : 1921 41 MLJ 1. that enfranchisement is a clear and unequivocal resumption by the Government of the land and a re-grant to whomsoever it pleases, it follows that, unless the Government had at the time of the resumption no right to resume, the 1st defendant has no case.' It is unnecessary to decide in this case whether there was an actual resumption by the Government of the service inam or not. It is sufficient for the purpose of this case to hold that the Government enfranchised the inam land which it had absolute power to dispose of, in favour of the persons in whose names pattas were issued by the Inam Commissioner. The first contention, therefore, that the enfranchisement in 1903 was for the benefit of Venugopal Rao, the karnam then in office, is not sustainable.
6. The second contention is that the decree in S.A.S. No. 47 of 1902 was for the whole of the karnam's inam which measured about 63 acres and owing to some miscalculation only 23 acres were delivered to the plaintiff Venugopal Rao. It is argued that the whole of the land having been decreed to Venugopal Rao, the others had no right to the land and therefore it must be taken that Venugopal Rao was in possession of the whole of the land and the enfranchisement proceedings were for his benefit. It is unnecessary to consider this point in detail in view of my decision on the third point.
7. The next point urged by Mr. Somayya is that the defendants 13 to 31 are entitled to 23 acres. This contention is based on the fact that subsequent to the inam proceedings the decree in S.A.S. No. 47 of 1902 was executed by Venugopal Rao and he got actual possession of 23 acres. He no doubt got possession of 23 acres by virtue of his being the karnam in office. But unfortunately for him the enfranchisement proceedings were over before he got possession, and the inam pattas had been issued or ordered to be issued. According to the proceedings of the Inam Deputy Collector, Ex. 11, persons who were actually then in possession were granted pattas. And he says : ' Venugopal Rao, decree-holder in the Summary Suit referred to above, admits that he has himself no possession, but he says that the Virayala people do not hold a half share in it, but he has not proved it and besides he has nothing to do with the land not being one in possession.' The argument for the appellant is that 23 acres odd had become the property of Venugopal Rao, and that the enfranchisement proceedings could not take away that right and he relies upon the decision in Lakshmbiarasimham v. Venktaratnayamma (1921) 30 MLT 334. In that case Spencer and Ramesam, JJ. held ' the fact that the Government enfranchised a karnam service inam and issued title deed in the name of a person did not of itself confer a title on such person and the inam title deeds could create no title where no title existed before.' Mr. Justice Spencer observes at page 335 ': ' On this point I am of opinion that the language of their Lordships should not be strained too far so as to make it apply to circumstances which were not before them. To say that inam title deeds created a title where no title existed before would be to disregard the provisions of Madras Act VIII of 1869 which expressly state that 'nothing contained in any title deed shall be deemed to define, limit, infringe or destroy the rights of any description of holders or occupiers of the lands from which any inam is derived' or ' affect the interests of any person other than the inam holder named in the title deed ' and nothing contained in Madras Act IV of 1862 or in Madras Act IV of 1866 shall be deemed to confer on any inam holder any right to land which he would not otherwise possess.' Mr. Justice Ramesam observes at page 336 : ' The judgment of their Lordships of the Privy Council in Venkata J agannadha v. Veerabhadrayya ILR (1921) M 643 : 41 MLJ 1. cannot be used as an authority for the proposition that the inam title deed is conclusive as to the persons in whose favour enfranchisement is to operate.' If this decision is good law no doubt the appellant's contention could prevail. But Mr. Justice Ayling and Mr. Justice Odgers have dissented from the view of Mr. Justice Spencer and Mr. Justice Ramesam in the case already referred to, Krishna Sastri v. Singaravelu Mudaliar (1924) 48 MLJ 470 and Mr. Justice Wallace also dissents from this view in Gourikantam v. Ramamurthi : (1924)46MLJ482 . The view of Spencer and Ramesam, JJ. is opposed to the decision in Sankara Subbayyar v. Ratnaswami Aiyangar ILR (1897) M 454. wherein the facts were: Inam lands constituting the emoluments of the office of Nattamgar were enfranchised in favour of the plaintiff and defendant separately. In November, 1890, the defendant was informed that a patta for half of the lands would be issued in his name, and it was so issued on the following May. In April, 1891 (after the resolution to enfranchise the land was come to) the plaintiff was appointed to be the sole Nattamgar and he sued in 1894 for the cancellation of the enfranchisement patta issued to the defendant, and for the issue of a patta in his own name in respect of the lands comprised therein and for possession of the lands. The Court held that the plaintiff was not entitled to the relief sought. The learned Judges observe at p. 456 : ' We think that the enfranchisement of half of the land in second defendant's name was in accordance with the principle accepted in the Full Bench case Venkata v. Rama ILR (1884) M 249. referred to by the District Judge, inasmuch as the right of the second defendant, established by the suit under Regulation VI of 1831, was never subsequently set aside or even disowned by the revenue authorities. The appointment of the plaintiff as sole Nattamgar in April, 1891, was never intended to affect the right of the second defendant to the moiety of the lands. It was merely an act of policy on the part of the Government for the more convenient discharge of the duties of the office and could only affect the right of the second defendant from the date of such appointment. We do not think it would be reasonable, nor is there any authority for holding that the plaintiff's appointment in April, 1891, should have effect retrospectively so as to divest the second defendant of the right which had vested in him by the prior order to enfranchise half the lands in his name.' The order for enfranchisement was passed before Venugopal Rao got possession of the lands. His subsequent possession cannot divest the title which was created by the grant of inam patta in favour of the persons then in possession of the lands. If the subsequent appointment of the plaintiff in Sankara Subbayyar v. Ramaswami Aiyangar ILR (1897) ILR 20 M 454 could not divest the title of the second defendant in that suit which had vested in him, it is difficult to see how the getting possession of the land in execution of the decree in the summary suit could divest a title which had been conferred by the grant of the inam patta. In this view Venugopal Rao and his descendants could not claim exclusive title to the 23 acres in their possession. They do not attempt to set up adverse possession for more than 60 years against the Government and granting that they could get prescriptive title against the plaintiff they have not proved that they were in possession for more than 12 years before the date of suit. As a matter of fact their possession was only subsequent to 1905 and the suit was filed in 1917.
8. In the result the second appeal fails and is dismissed with costs.