Alfred Henry Lionel Leach, C.J.
1. This appeal arises out of a suit filed by the appellant to recover possession of certain lands situate in the Guntur District On the 16th May of 1916 the first respondent, who is the head of a math, granted to one Nagamma a lease for ten years of the lands described in schedule A of the plaint. These lands were held on behalf of the deity of the math under an inam said to have been granted in 1763. For many years they had been cultivated by Nagamma's husband, who was dead when the lease to her was granted. During the pendency of the lease Nagamma adopted Bapanayya, the husband of the appellant. Nagamma died before the lease expired and on her death Bapanayya took possession of the lands. He had no issue and on his death in 1924 the appellant, who was then a minor, entered into possession as his heir. She remained in possession after the expiration of the lease and was regarded by the first respondent as a tenant holding over.
2. On the 24th January, 1930, the first respondent filed a suit against the appellant in the Court of the Subordinate Judge of Bapatla, for a decree for possession and mesne profits. On the 1st August, 1930, the suit was transferred to the Court of the Subordinate Judge of Tenali and there numbered O.S. No. 79 of 1930. The appellant was still a minor and her father, Rattiah, was appointed to act as her guardian ad litem. She pleaded that she had a prescriptive right to the permanent occupancy of the lands and further averred that they formed part of an estate under the Madras Estates Land Act, 1908. These issues were decided against her on the 18th April, 1934 and consequently a decree for possession and mesne profits was granted to the first respondent. In execution of that part of the decree relating to mesne profits the first respondent attached and brought to sale the seven properties described in schedule B of the plaint filed in the present suit. Five of these properties Nos. 1, 2, 3, 4 and 7 were purchased by the third respondent. Two of them Nos. 5 and 6 were purchased by the first respondent himself. The appellant's father as her guardian ad litem accepted the decision of the Subordinate Judge and on the 15th June, 1936, the first respondent obtained possession of the lands described in schedule A.
3. The appellant filed the present suit in 1938. She claimed that she was entitled to a declaration that the decree passed in O.S. No. 79 of 1930 was not binding on her as her guardian had been guilty of gross negligence in not preferring an appeal from the decree of the Subordinate Judge, and therefore she was entitled to recover possession of the lands which she had lost as the result of that decree. She also claimed that the lands described in schedule A form part of an inam village and that Section 6 of the Madras Estates Land Act, 1908, as now amended, gives her a right to permanent occupancy. It has not been suggested that the decision in the earlier suit brought into operation the doctrine of res judicata. The Subordinate Judge held that the guardian ad litem had not been guilty of negligence in accepting the decision in O.S. No. 79 of 1930, and that the law did not give to the appellant occupancy rights in the properties described in schedule A. He considered that the item granted to the deity of the math was a service inam and that for this reason the appellant could not acquire a right of permanent occupancy. There were other questions raised in the trial Court, but it is not necessary to mention them, as they have not been raised before us. Admittedly the suit must fail so far as the A schedule lands are concerned if the inam granted did not comprise the whole village and as regards the B schedule lands if the guardian ad litem appointed in O.S. No. 79 of 1930 was not guilty of gross negligence.
4. We will deal with the plea of negligence first. It is based on the averment that if an appeal had been filed against the decree passed in O.S. No. 79 of 1930 the amendments to the Madras Estates Land Act made in 1934, 1935 and 1936 would have given a right of permanent occupancy in the lands described in A schedule and the appellate Court would have been bound to set the decree aside. As already mentioned, the decree was passed on the 18th April, 1934. At that time the Madras Government was considering the question whether all inam villages should be made estates within the meaning of the Act. The guardian ad litem had three months in which to file an appeal and before that period had expired the Provincial Legislature enacted the Madras Estates Land (Amendment) Act, 1934 (Act VIII of 1934). Section 127 of this Act stated that no tenant in possession on the 1st November, 1933, of land in an inam village not being an estate should be liable to ejectment until the 1st November, 1935, and that all proceedings in ejectment and all prc-ceedings involving a decision whether or not the inamdar had the kudivaram right should be stayed until that date. The object of this provision was, of course, to give to such tenants the benefits of the alteration in the law should it be decided to make all inam villages estates within the meaning of the Act. This question had not been decided by the 7th January, 1936. On that date, the Madras Estates.Land (Amendment) Act, 1935 (Act I of 1936) came into force. It altered the date in Section 127 of Act VIII of 1934 to the 1st May, 1936. On the 5th May, 1936, the Madras Estates Land (Second Amendment) Act, 1936 (Act XIII of 1936) came into operation and extended the date to the 1st November, 1936. A decision was arrived at later in the year and it was embodied in the Madras Estates Land (Third Amendment) Act, 1936 (Act XVIII of 1936) which came into force on the 31st October, 1936. That Act granted a permanent right of occupancy to tenants in possession of lands in inam villages on the 30th June, 1934. Assuming the lands in suit to be part of an inam village the amendment in the laws could have enured to the benefit of the appellant if an appeal had been filed but.it does not follow that the guardian ad litem was negligent in not filing an appeal.
5. It is conceded on behalf of the appellant that the judgment delivered by the Subordinate Judge in O.S. No. 79 of 1930 was in conformity with the law as it then stood. Therefore the charge of negligence is based merely on the failure of the guardian ad litem to anticipate the passing of Act XVIII of 1936. This is an astonishing proposition. The decree passed against the appellant being in conformity with the law there was no ground on which it could be challenged, and if the guardian ad litem had filed an appeal it would have been a speculation of a ' very hazardous nature. If it failed the appellant would have to pay a considerable sum of money in costs. The uncertainty of the situation which existed is indicated by the delay which took place in the passing of the Act which gave the persons who were in occupation of inam village lands as tenants on the 30th June, 1934, the right of permanent occupancy and who could foretell that the legislature would decide on the 30th June, 1934, as the crucial date? It might have decided on some date after the passing of the Act. We consider that the. charge of negligence does not lie and this finding disposes of the suit so far as it concerns the lands des-cribed in schedule-B.
6. We have now to consider the question whether Section 6 of the Madras Estates Land Act, as amended, assists the appellant in respect of the A schedule lands. The relative portions of that section are Sub-section (1) and the first and second explanations to that Sub-section. They read as follows;-
(1) Subject to the provisions of this Act, every ryot now in possession or who shall hereafter be admitted by a landholder to possession of ryoti land situated in the estate of such landholder shall have a permanent right of occupancy in his holding.
Explanation (1).--For the purpose of this Sub-section the expression every ryot now in possession shall include every person who, having held land as a ryot, continues in possession of such land at the commencement of this Act. Explanation (2).--In relation to any inam village which was not an estate before the commencement of the Madras Estates Land (Third Amendment) Act, 1936, but became an.estate by virtue of that Act, or in relation to any land in an inam village which ceased to be part of an estate before the commencement of that Act, the expressions ' now ' and the ' commencement of this Act' in this Sub-section and explanation (1) shall be construed as meaning the thirtieth day of June, 1934, and the expression ' hereafter ' in this Sub-section shall be construed as meaning the period after the thirtieth day of June, 1934.
7. While conceding on behalf of the appellant that if the grant to the head of the math was not a grant of a whole village the lands covered by the grant would not constitute an estate, Mr. Satyanarayana Rao says that the grant did in fact comprise the whole village. This is denied by the first respondent. The original grant is lost and its terms have to be gathered from (1) the statement filed on behalf of the math in 1861 when the Inam Commission was carrying out its duties and (2) the entries made in the Inam Register. In column VI of the statement these words have been written:
The former zamindars who had jurisdiction over this village, granted the land comprised within the 'Chekunama' for the Nitya Neivedya Deeparadhana and other Kainkaryams in the math of Sri Swami Varu. There is no sannad. As it was destroyed by fire it is not known in which fasli it was granted.
8. The expression means the document describing the boundaries. Columns VII to IX were intended for particulars of the inam lands, including the particulars set out in the sanad. There is no entry under the heading 'particulars of the inam land mentioned in the sanad,' but under the heading 'Gudicut' (the total area of the village) is the entry I58.23 acres, from which are deducted 25.10 acres described as private lands and 54 acres 'inams of other persons,' leaving 128-6 acres as the area covered by the grant. In our opinion there can be no doubt that the particulars here given indicate that those, in charge of the math did not regard the inam as comprising the whole of the village, but only 128-6 acres out of the 158.23 acres which formed it. The appellant asks the Court to disregard these entries because of what is entered in column X which was intended for the insertion of the particulars of the boundaries. The particulars given in this column read as follows:
There is no chekunama Present boundaries of the Agraharam :--East.--The boundary limits of Kolakaluru and Yerikalapudi. South.--The boundary limits of Yerikalapudi and Gudileda. West.--Gudileda Kolakaluru eastern bund of Tungabhadra channel and old channel. North.--The boundary limits of Kolakaluru.
9. These boundaries are admittedly the boundaries of the whole village, but column X must be read in conjunction with the early columns and the entries in the Inam Register and when this is done it is obvious that the compilers of the statement were here indicating that the lands granted to the deity of the math fell-within the boundaries of the village, being unable to give the boundaries mentioned in the sannad. In the column in the Inam Register intended for the statement of the acreage covered by the inam, the figure given is 128'22. The Register also contains this statement 'old inams disposed of as a distinct case--56 acres.' There is no mention in the Register of the 2510 acres shown in the statement filed on behalf of the math as being private lands. The entries in the Inam Register relating to the 'old inams' have also been put in evidence. This part of the Register shows 510 acres as being held under an inam granted to one Brahmandam Lakshmanna who appears to have had no connection with the math. There is overwhelming evidence that only 128.22 acres out of the total area of 158.23 acres, which formed the village were dedicated to the deity of the math. The grant being less than a whole village 'the appellant cannot rely on Section 6 of the Act, which means that her claim to the A schedule lands must also be dismissed. This finding provides an additional reason for rejecting the contention that the appellants' guardian ad litem in the previous suit was guilty of negligence.
10. In these circumstances it is not necessary to embark on a discussion of the first respondent's contention that the grant here was a grant for service. It may however be mentioned that the entries in the Inam Register are strongly against the contention.
11. The appeal fails and will be dismissed with Costs. The appellant having appealed in forma pauperis will pay the required court-fee to Government.