1. The plaintiff, the seventh defendant and another were the sons of one Bayyapuraju. The plaint property was a mirasi karnam inam enfranchised in the names of the seventh defendant, the plaintiff and Suryanarayana, who were the three sons of Bayyapuraju, and the first defendant, who is the brother of Bayyapuraju. Suryanarayana died long ago. The plaintiff sued for one half share in the property on the footing that first defendant had no right in it. The first defendant relied on a family arrangement in 1905 in which the plaintiff and the. seventh defendant gave up their third shares to the first defendant. The District Munsif upheld that arrangement and dismissed the suit on the ground that the first defendant had been in adverse possession for more than 12 years since 1905. In the lower appellate Court it was argued that, as the enfranchisement of the inam was in 1911, the property was until then the absolute property of Government, that the first defendant, if he was from 1905 to 1911 prescribing for a title for adverse possession, could so prescribe against Government only and had not completed such title, that no adverse possession was running from 1905 against the plaintiff since the plaintiff's title only began in 1911, and that the title of any of the grantees under the Inam title deed began only on the date of the enfranchisement, namely in 1911. The lower appellate Court accepted that argument, and gave a decree for plaintiff. The first defendant appeals.
2. There are two main lines of argument for the appellant, first, that enfranchisement and grant of an inam title deed mean nothing more than a removal of the service obligation on the land and does not in any way affect the manner in which the land was previously held or affect the rights of those previously holding it, whether members of the service holder's family or outsiders; and secondly that, even if it be held that the inam title deed implies total resumption by Government and re-grant that re-grant will not avail to disturb the pre-existing rights in the land, of persons not claiming any title or spes in the office, and, particularly will not rid the land of any right in the land acquired by outsiders by adverse possession. These points were argued on the assumption that, if the enfranchisement does not avail to break the running of the adverse possession in favour of the first defendant, then the first defendant's title by adverse possession is perfected.
3. On the first point I am quite clear that it cannot now be considered good law in the face of the Privy Council pronouncement in Venkata Jagannadha v. Veerabhadrayya ILR (1921) Mad. 643 : 1921 41 M.L.J. 1. That decision interpreted an inam title deed of exactly the same terms as the present one and of almost the same date. It lays down clearly that the lands comprising the emoluments of the karnam office are attached to the office as such, so that, even if a stranger to the family is appointed, the land goes with the appointment, that eligibility to the office is a personal matter, that the land goes with the office and is impartible, and that Government, in the act of enfranchisement, severs the land from the office and allows the office-holder for the time being to enfranchise it. The Full Bench ruling in Venkata v. Rama ILR (1884) Mad 249 and other rulings which have followed it are approved in that decision, and other rulings of this Court which do not follow Venkata v. Rama ILR (1884) Mad 249 for example Gunnaiyan v. Kamakshi Iyer ILR (1902) Mad 339 and Pingala Lakshmipathi v. Bommireddipalli Chalamayya ILR (1906) Mad 434 : 1906 17 MLJ 101 are disapproved of. The whole trend of that decision was set out and relied on in Second Appeal No. 287 of 1921 in this Court, with which I respectfully agree. It was there clearly pointed out that the distinction between the enfranchisement of a service inam and that of a personal inam is that the latter is a mere release of the service obligation, release by the Crown of its reversionary interests, while the former is a resumption of the land by Government and a re-grant of it to whomsoever Government pleases, although no doubt ordinarily the re-grant would be to the holder of the office at the time of the enfranchisement. The appellant relies on the wording of Act IV of 1862, Act IV of 1868 and Act VII. of 1869 and the ruling in Lakshminarasimham v. Venkalaratnayamma (1921) 30 MLT 334. The first two Acts are mere legal statements of the evidentiary value of the inam title deed, while Act VIII of 1869 seems to me merely to save the existing rights of occupancy holders or kudivaramdars already on the land. It has been pointed out to me that Act VIII of 1869 in terms only applies to inam title deeds ' heretofore issued ' and this point seems to have been overlooked, if I may say so with respect, by Spencer, J., in Lakshminarasimham v. Venkataratnayamma (1921) 30 MLT 334. It does not follow from that Act that inam title deeds issued after it did not create a title where no title existed before. The other learned Judge, Ramesam, J., proceeded on the footing that Venkata Jagannadha v. Veerabhadrayya ILR (1921) Mad 043 : 41 MLJ 1 does not prevent an aggrieved party, whose name was already in the title-deed, from showing that another name was included in it by mistake: I may also note that the pronouncement on this point in that case was not necessary for the decision of the case, since the decision proceeded on a finding of estoppel aliunde. I therefore follow what I conceive to be the ratio decidendi of the 44 Mad. case and hold that the enfranchisement of a service inam and the issue of a title-deed thereupon create a new title in the grantee. I do not in any case understand the first defendant to contend here that the name of the plaintiff was included in the inam title-deed by mistake other than failure to give effect at the time of the issue of the title-deed to his own title by adverse possession. There is no plea before me, for example that the grantees were not at the time holders of the service.
4. This brings me to the second point, namely, whether assuming that the first defendant has been in exclusive possession of the land for more than 12 years before suit, that prescriptive title can avail against the rights of the grantees under the title-deed. Such an argument has been considered in S. A. No. 287 of 1921 quoted above, and it was there decided that no one claiming adversely to the inam title-deed can succeed on prescriptive title, unless he proves either, that there was no inam at all, or that Government had no right left in it at the time of the resumption, that is, that his prescription was for more than sixty years at the date of the grant. The first alternative does not arise here since it is not contended that the land was not service inam. As to the second alternative the appellant argues that it is not necessary for him to prescribe against Government, and that it is sufficient if he had prescribed against the plaintiff, who claims under the title-deed. Since, however, I hold it is clear on the authority of the 44 Mad. case 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 Government had at the time of the resumption no right to resume, the first defendant has no case. If the rulings relied on by him, Neelachalam v. Kamaraju : (1903)13MLJ438 and Kotirajudu v. Venkataratnam (1919) 38 MLJ 320 imply the contrary, they must be taken to have been overruled by the 44 M. case, which was pronounced in 1921. The case of Majanath Ali v. Mujafar Ali : (1923)45MLJ791 is a case of a khaji inam, to which the 44 Mad. case has no application and is not in point here. Different considerations, as pointed out in that case, apply to the cases of personal inams.
5. Another point might have been taken, namely, that, as the first defendant is one of the grantees, presumably he was an office-holder prior to the grant and therefore was holding not adversely to the office-holder but on his or their behalf. But, as there is no evidence as to who actually was the holder at the time of the grant and as the case can be disposed of on the lines indicated above without going into that question, I need not consider it any further.
6. I hold, therefore, that the finding of the lower appellate Court is correct. The Second Appeal is therefore dismissed with costs.