1. The question raised in these appeals relates to the nature and effect of the grant under the Original of Ex. D-1.
2. Two suits were filed in the Lower Court, O.S. No. 13 of 1942 and O.S. No. 17 of 1942. The judgment under appeal refers to the array of the parties in the later suit and we shall do the same.
3. The plaintiffs in O.S. No. 17 of 1942 filed the suit for a declaration that the usufructuary mortgage held by them under Ex. P-1 over the village of Irungattu-kottai is valid and binding on the defendants 1 to 5. The mortgagors are the first defendant, second defendant and Sriramulu Naidu, the father of defendants 3, 4 and 5. The other suit O.S. No. 13 of 1942 was filed by the sons of Sriramulu Naidu against the plaintiffs in O.S. No. 17 of 1942 for an account of their one-third share in the income realised from the suit village on the footing that the document executed by their father Sriramulu and his two brothers is not binding on them. The two suits raise substantially the same question. The lower Court decreed O.S. No. 13 of 1942. O.S. No. 17 of 1942 was decreed against defendants 1 and 2 and they do not appeal. It was dismissed against defendants 3 to 5 who are the plaintiffs in the other suit. These appeals are directed against the decrees granting relief to Sriramulu Naidu's sons.
4. The village in question was held by the ancestors of respondents 1 to 3 under a service tenure referred to as mokhasa tenure, the service being providing the necesary police force for keeping peace and order in the country. The service holders known as palayagars were entitled to hold and enjoy the villages allotted to them so long as they provided the necessary police force. This system was found to be unsatisfactory and was therefore abolished and regular police establishment paid by the Government and working directly under the Government was introduced. As the service was otherwise provided for, the authorities granted the villages till then held on service tenure on certain terms. The grant of the suit village made by the then Governor in Council is evidenced by Ex. D-1. It was granted to one Sriram Singam Naick, the ancestor of respondents 1 to 3. Bhas-karayya Naidu a descendant of Sriram Singam Naick was in possession of the village and he died leaving three sons Sreeramulu Naidu (the father of Respondents 1 to 3), Gopalaswami Naidu and Audikesavalu Naidu who were defendants 1 and 2 in O.S. No. 17 of 1942, but who are not respondents in the appeal against the decree in that suit. The common question that arises in all these appeals is
What is the nature of the interest created under the original of Ex. D-1?
The document is a short one and may be set out in full. It runs thus:
Puruvannah granted by the Right Honourable Edward Lord Clive Baron Clive of Walcot in the county of Salop, and Baron Plassy of the Kingdom of Ireland, Governor in Council of Ft. St. George, on the part of the Hon'ble the United Company of Merchants of England, trading to the East Indies to Streeram Singam Naick, late a Poligar of the District of Tripassore in the Honourable Company's Jagheer.
Experience having shown that the Police of jagheer under the charge of the Poligars and Cavilgars has been inadequate to the prevention of crimes, or the apprehension of offenders, the Right Hon'ble the Governor in Council has determined to abolish that system;
To resume the fees appropriated to the support of it; and to introduce a general reform of the Police Department. In consideration of the loss to which persons employed in the system of Police will be in consequence subjected, His Lordship in Council has resolved to compensate that by confirming the villages they formerly held on moccassah tenure, to them, and their heirs on shrotrium tenure.
2. In consequence of the foregoing resolution, the Governor in Council confers on you the village of Errongaud Cottah in the Zamindary of Streeperumbudoor on Shrotrium tenure chargeable with an annual rent of Pagodas 50 (fifty) including Russooms and Marahs, viz.:
Shrotrium rent, 5.
Pagoda Marah, 11--1/32
Poligar Marah, 34--3/16.
3. The Governor in Council having commuted the Russooms and Marahs assessable on the village of Errongaud Cottah for money rent, you are entitled to collect these Russooms and Marahs at the rate entered in the dowle of fasli 1210 and to appropriate the amount to your own use.
4. The Goveror in Council confirms to you and your heirs the village of Errongaud Cottah as Shrotrium so long as you discharge the rent and are obedient to the laws and regulations established or to be established, under the authority of the Governor in Council (torn) for the time being;
5. In confirming to you and your heirs as shrotrium the village of Erungaud Cottah, you are to understand that the said village is not alienable by gift, sale or otherwise, but in default of legal heirs, that the said village shall revert to the Hon'ble Company,
5. The lower Court accepted the respondents' contention that the grant creates a succession of life estates in the grantee and his successors and that the provision against alienation enures not only for the benefit of the grantor to resume on failure of legal heirs but also enables the successors of an alienor to avoid the alienation and to recover the property after the alienor's death. On the other side the appellants contend that the grant creates an absolute estate of fee simple subject to the condition that on failure of grantee's legal heirs, the grantor is entitled to resume the village free from any alienations that may have been made by the grantee or by any of his successors.
6. The three brothers became indebted to Papayya Naidu, the father of appellants 1 to 3 and the husband of the fourth appellant. They executed Ex. P-1 to Papayya Naidu on 17th October 1921 to secure a loan of Rupees Twenty thousand. Ex. P-1 is a usufructuary mortgage deed under which the mortgagee is to be in possession and enjoyment of the suit village and appropriate the net income towards the interest payable under Ex. P-1 and on payment of the principal sum the village is to be delivered to the mortagagors. Sreeramulu Naidu died on 30th August, 1932 and troubles arose soon afterwards. Papayya Naidu had obtained a money decree against the three brothers and in execution of that decree he attached the judgment-debtor's interest in the suit village. Objection was taken to the validity of the attachment and the matter was finally decided by this Court. (Sundararajulu Naidu v. Papaiah Naidu : AIR1938Mad623 ) We shall refer to that decision later. After the termination of those proceedings respondents 1 to 3 the sons of Sreeramulu attempted to interfere with the mortgagee's possession of the village and hence O.S. No. 17 of 1942 was filed by the sons and widow of the original mortgagee for establishing that the mortgage is valid and binding on the surviving mortgagors and on the sons of the deceased mortgagor. The other suit O.S. No. 13 of 1942 was filed by Sreeramulu's sons for recovery of their one-third share in the income realised by the mortgagees after Sreeramulu's death.
7. The grant under Ex. D-1 is a Crown grant and is governed by the Crown Grants Act. Though a condition such as we have in Clause (5) of Ex. D-1 will be invalid if the grant is made by a private individual, it is perfectly valid in the case of a Crown grant. Hence the only question is whether the prohibition against alienation enables the successors of, the alienors to aviod the alienation? Or, was it put in only to enable the Crown to resume the property on failure of legal heirs free from any intermediate alienation? This question is not quite free from difficulty. Mr. Narasimhachariar the learned advocate for the appellants emphasises the use of the word ' but ' between 'You are to understand that the said village is not alienable by gift, sale or otherwise ' and ' in default of legal heirs, that the said village shall revert to the Honourable Company' and urges that this means that the only consequence of the violation contained in the first part of Clause (5) is that mentioned in the second part. There is much to be said for this view. It is urged on the other side that the latter part of Clause (5) was necessary in order to make it clear that on alienation, the grantor the East India Company was not to resume the grant forthwith but to get it only on the failure of the legal heirs and that otherwise the clause must be given the full effect which flows from its language and that the prohibition being an absolute one an alienation does not bind the successor, at any rate. Another construction of the document is that it created a series of life estates and that an alienation by one life estate holder will not, by the nature of the estate taken by him, enure beyond his life-time.
8. As said before the question of the construction of Ex. D-1 came up for consideration before the High Court on a former occasion when the appellants' father attached the interests of the mortgagors in execution of a money decree obtained against them during the lifetime of Sreeramulu Naidu. The objection raised on behalf of Sreeramulu Naidu's sons were substantially the same as those put forward by them in the present litigatiom. The Subordinate Judge overruled the objections and upheld the attachment. The appeal came on for hearing before Burn and Abdur Rahman JJ. There was a difference of opinion between the two learned Judges. Burn J., held that the view of the lower Court was right and that the creditor had the right of bringing the property to sale. Abdur Rahman J., differed from this view and held that the successors of the alienor were entitled to ignore the alienation taking advantage of this prohibition and that the alienation did not prevent thorn or their sons from asserting their rights. He. therefore directed the release of the one-third share of Sreeramulu's sons and as regards the shares of the other two brothers he directed the appointment of a receiver to realise the profits during their lifetime and to appropriate the income towards the decree obtained by the appellants' father. The appeal was referred for decision by a third Judge and Venkata-ramana Rao J., who heard the appeal (Sundararajulu Naidu v. Papaiah Naidu : AIR1938Mad623 ) on such reference took the view that the document created a series of life estates in the holders for the time being and that therefore by the very nature of the estate, the alienation would not enure beyond the lifetime of the alienor. He also took the view that the clause prohibiting alienation enabled the successors of the alienor to recover the property on the death of the alienee. As regards the shares of the other two brothers he agreed with the direction made by Abdur Rahman, J. In this ease we are not concerned with the claim against the other two brothers who have acquiesced in the decree granted by the lower Court. We are only concerned with the question whether the mortgage created by Srceramulu Naidu is binding on his sons. The appellants fail if. either of the views propounded by Venkataramana Rao, J. is right. If the estate created under the document is only a life estate in each holder, then no alienation made by him can enure beyond his lifetime. Likewise if the clause against alienation enables the successor of the alienor to avoid the alienation, then again the appellants fail. It is urged by Mr. Narasimha-ehariar far the appellants that the view taken by Venkataramana Rao, J. is wrong and that we ought not to follow it. Without going so far as to say that the decision is binding on the present appellants by way of res judicata, Mr. Raghava Rao urges that the view taken by Venkataramana Rao, J. is right and that we ought to follow the decision of two learned Judges of this Court on the identical question as to the effect of the document Ex. P-1. We have heard the learned Advocates at great length. While we arc not prepared to agree that the document creates a series of life estates, we are in agreement with the view expressed by Venkataramana Rao, and Abdur Rahman, JJ., that the effect of an alienation is not merely to enable the grantor to resume on failure of legal heirs but also to enable the successors of the alienor to avoid the alienation after his death.
9. Apart from the validity or otherwise of a provision against alienation, the existence of such a provision does not in our opinion, control what would otherwise be an absolute estate of fee simple so as to create a series of life estates in each holder. In this case the grant to Sreeram Singam Naick who was till then holding the village in question on the service tenure says that this was abolished and the preamble contained in the first paragraph says that the Governor in Council resolved to compensate the loss sustained by the grantee by confirming the villages held formerly on mokhasa tenure to them and their heirs on shrotrium tenure. Clause 2 says that in consequence of the foregoing resolution, the Governor in Council confers upon the grantee the village in question on shrotrium tenure. Clause 3 says that the grantee is entitled to collect the Russoms and Merahs and to appropriate the amount to hisown use and Clause 4 provides that the Governor in Council confirms 'to you and your heirs', i.e., the grantee Sreeram Singam Naick and his heirs the village in question as shrotrium so long as he ' discharged the rent and are obedient to the laws and regulations established or to be established under the authority of the Governor-in-Council.' If the documents had ended with Clause 4 there does not seem to be any room for argument that the estate created was anything other than an absolute estate of fee simple. That being so, the clause against alienation contained in Clause 5 would not, in our opinion, lead to the conclusion that taking the document as a whole, the estate created is one of a series of life estates. Reverter to the donor or his heirs on failure of the heirs of the grantee--a provision which is generally found in maintenance grants made by holders of impartible estates to the junior members of their family--does not prevent an alienation and the alienee would be entitled to enjoy the property, at any rate, as long as the line of the grantee continues. It is one thing to say that there is a restraint against alienation so as to let in not merely the grantor on failure of heirs but also the alienor's successor on the death of the alienee, but is quite another thing to say that the holder for the time being has only a life estate.
10. Mr. Raghava Rao urges that the circumstances of this case and the very nature of the estate conferred by the document show that it is only a life estate in the holder for the time being.
11. The argument is that prior to the grant Ex. D-1, the village in question belonged to the entire family of Sriram Singam Naick and that the declared object of the grant as shown by the wording of the document is to provide for the family as a whole and that the object of the grant would be frustrated by postulating a free hold estate of inheritance in Sriram Singam Naick and which he could alienate at his pleasure. He relied on the decisions of the Judicial Committee in Gutabdas Jugjivandas v. The Collector of Surat . and Nawab Bahadur of Murshidabad v. Karnani Industrial Bank, Ltd. (1931) 61 M.L.J. 208 : L.R. 58 IndAp 215 : I.L.R. 59 Cal. 1 both of which are referred to by Venkataramana Rao, J. In the earlier case of Gulabdas Jugjivandas v. The Collector of Surat : I.L.R. 3 Bom. 186 a grant of a certain villages was made by the East India Company to one Najamooddin who was the Commander-in-chief of the forces of the Nawab and the declared object of the grant as stated in the document was to make a provision for Najamooddin and his descendants. The Judicial Committee pointed out that it was the intention of the East India Company as stated in the document to make a permanent provision for the family of the said Bukshee, i.e., the grantee, Having regard to the peculiar character of the grant from the Government under the circumstances related and having regard to the object which the grant expressed, the Judicial Committee came to the conclusion that the Court of Bombay was right in treating the grant as one conferring upon the descendants of Najamooddin, an estate for life and life only. The grantee was the Commander-in-chief of the Nawab and as his service as Commander-in-chief were no longer necessary as the East India Company took over the administration of Surat, a provision was made to recompense him and his descendants. The other case relied upon is Nawab Bahadur of Murshidabad v. Karnani Industrial Bank, Ltd. (1931) 61 M.L.J. 208 : L.R. 58 IndAp 215 : I.L.R. 59 Cal. 1 There again the grantee was the eldest son of the Nawab Nazim of Bengal, Bihar and Orissa. A contract was entered into between the Government and the grantee evidenced by a document dated 12th March, 1891, The grantee agreed to relinquish the title then held by him and to accept in return the titles of Nawab Bahadur of Murshidabad and Amir-ul-Omrah. A provision was also to be made for the maintenance of the said. dignity. The Secretary of State on behalf of the Government covenanted to pay for the due maintenance and support of the said titles to the grantee and his lineal heirs male in perpetuity a particular sum and agreed that the immoveable properties mentioned in the schedule to the document should be held and enjoyed by the grantee and such one among his male lineal heirs as may be successfully entitled to hold the titles in perpetuity with and subject to the incidents, powers, limitations and conditions as to inalienability and otherwise. There was also a provision that the
Nawab Bahadur shall not, nor any of his successors in the said titles, sell, mortgage, devise or alienate the said properties respectively.
12. In that case the Judicial Committee held that the interest created was one of a series of life estates. It will be observed that the title was to descend to one in the lineal male line and the grant was to support the dignity of the holder of the title for the time being. Unless we have circumstances similar to those present in the above case, it is difficult to say that a mere restraint on alienation leads to the inference that the estate created by the document is one of a series of life estates.
13. The next question is whether the restraint against alienation enables the successor of the alienor to repudiate the alienation after the death of the alienor. On this point the learned Judges who decided the earlier appeal in Sundararajulu Naidu v. Papiah Naidu : AIR1938Mad623 have taken the view that the object of the clause was not merely to enable the grantor to resume on failure of legal heirs but also for the benefit of the successors. As we said before, there is much to be said for the argument advanced by Mr. Narasimhachariar that the use of the word ' but ' between the two parts of Clause 5 is some indication that the restraint was intended only to enable the grantor to resume on failure of the grantee's legal heirs. But giving the matter our best consideration and having regard to the views expressed by all the three learned Judges of this Court on the identical document, we are not prepared to say that the construction placed upon it by the lower Court is wrong. Both the views are possible and we are not prepared to differ from the view expressed by the learned Judges in the previous appeal.
14. Appeals Nos. 170 and 171 are dismissed; we make no order as to costs either here or in the lower Court.