1. This appeal is preferred against the decree in a mortgage suit. The appellants are the 3rd and 4th defendants. There is a petition on behalf of their father, the second defendant, praying that under Order 41, Rule 33, Civil Procedure Code, he maybe granted the relief to which he is entitled on the grounds urged by the appellants. The mortgage Ex. J was executed on 19th June, 1930, by the first defendant and his mother and by defendants 2, 3 and 4. It bound properties of the first defendant and also properties standing in the names of defendants 2 to 4. The principal sum secured was Rs. 16,100 and the rate of interest was 13 1/2 per cent. compound. In the trial Court it was found that none of the defendants were agriculturists and this finding is not challenged so far as the first defendant is concerned. The lower Court held that defendants 2 to 4 were disentitled to relief under Act IV of 1938 by reason of proviso (D) to Section 3 (ii) of the Act, on the ground that they were landholders of estates or portions thereof in respect of which estates taken together a sum exceeding Rs. 100 was payable as quit rent, etc. The decision of the lower Court must be held to be wrong, unless it can be shown that a service inam holding in a village called Chintada is an estate or part of an estate in respect of which defendants 2 to 4 are landholders. They have been found to be members of a joint family and it is established that a quit rent of Rs. 82-10-5 is paid on this inam.
2. The history of the land is peculiar. It is situated in what was once the Palakonda zamindari which was settled permanently in 1803. In 1809 the proprietor of this zamindari made a grant of these lands, which form only a portion of the village, to the then holder of the karnam service. In 1833, as a result of rebellious acts the zamindari was forfeited and the estate was declared to be land belonging to the Government. But the holders of the service inam lands in Chintada continued in possession and their holding was enfranchised in the Inam Commission proceedings of 1863 on payment of the quit rent already mentioned. Since that date these lands have been held as an inam holding situated within a Government village.
3. The lower Court has held that nevertheless the holders of this inam are landholders of an estate or portion of an estate under the Madras Estates Land Act for the purpose of proviso (D) to Section 3 (2) of Act IV. We are unable to support this decision. It seems to us clear that Clause (d) of the definition of ' estate ' in Section 3 (2) of the Madras Estates Land Act can have no application to this land for there was never any grant of a village. The grant was only of a portion of the land within a village. Nor can Clause (b) of this definition apply; for there is no separately registered portion of any estate. It is suggested that on the analogy of the decision of the Privy Council in Narayanaraju v. Suryanarayudu (1939) 2 M.L.J. 901 : L.R. 66 IndAp 278 : I.L.R. (1940) 1 Mad. this must be regarded as a case of a minor inam granted subsequent to the permanent settlement, situated within a zamindari, the grantee of which may be deemed for purposes of the Estates Land Act to be the landholder of a portion of an estate. It seems to us that this decision can have no application when there is no estate and the inam in question is part of a Government village. The fact that historically the inam was a century ago part of an estate seems to us to have no bearing on its present status. Clearly the Chintada lands are not either an estate or part of an estate in respect of which the owners can be regarded as landholders. It follows that defendants 2, 3 and 4 have been wrongly denied the benefits of Act IV of 1938.
4. The second defendant is not an appellant and it is suggested to us that he abstained from joining in the appeal in the hope that his sons, defendants 3 and 4, might be allowed to prosecute the appeal in forma pauperis. They have in fact been required to pay full court-fee. We do not approve of a practice whereby-one of the defendants who is clearly possessed of assets abstains from joining in an appeal in order that other defendants may prosecute the appeal as paupers. But we consider that the refusal of the relief under Act IV of 1938 to the second defendant would be a penalty out of all proportion to the gravity of his offence. The amount claimed in the suit is Rs. 44,000 odd whereas the mortgage is liable to be scaled down to a little over a quarter of that amount. It seems to us that the proper way of expressing our disapproval of the conduct of the second defendant is by requiring him to pay his own costs. In the result therefore the appeal is allowed and the lower Court's decree will be modified, leaving intact the liability of the first defendant and his lands for the full amount decreed by the trial Court, the decree as against defendants 2, 3 and 4 being scaled down so that they and their lands shall be liable in the sum of Rs. 12,500 plus Rs. 133-6-0 being the expenses incurred on the preservation of the property, with interest at 6 1/4 per cent. from 1st October, I937, up to the date fixed for payment which will be three months from to-day with subsequent interest at 6 per cent. The plaintiff will be entitled to only proportionate costs so far as these defendants are concerned and will pay costs in the trial Court to defendants 3 and 4 proportionately to the extent to which his claim has been disallowed and in appeal the plaintiff-respondent will pay costs to the appellants, defendants 3 and 4, and the second defendant will bear his own costs. It is represented that certain properties of defendants 2 to 4 have been sold in execution of the lower Court's decree for a sum which is considerably less than the amount to which the decree is now scaled down. The sale was not stayed because of the failure of the appellants to deposit the amount ordered as a condition precedent to the grant of a stay by this Court. In the circumstances it seems to us proper to hold that this sale will stand, unless the parties interested deposit the sale price plus poundage, etc., within the time fixed for redemption.