1. The suit was brought for an injunction restraining the defendants from interfering with the plaintiff's possession of the suit lands. The plaintiff alleged that he had been the Kudivaramdar of the suit lands prior to 1882 on condition of delivering waram to the landlord and that in 1882 the predecessor-in-title of the defendants executed Exhibit A under which the waram was commuted into a fixed money-rent and that the defendants claiming to revert to the waram rate were interfering with the plaintiff harvesting his crops. The defendants originally denied that plaintiff was the Kudivaramdar and contended that as the inam was a charity inam, Exhibit A was not binding on them. During the course of the trial, the plaintiff's right as Kudivaramdar was conceded. The Subordinate Judge decided against the plaintiff and he appeals.
2. The first question that arises for decision is the nature of the inam. Exhibit II is the Inam Register. In column 8 it was described as Kyrati which means, according to Maclean's Glossary, Volume III, page 415, H charity inam (Kheirauty) (see also Wilson's Glossary Khairat). The suit inam was described in Wallace s Register as 'to the charity of Ithabar Khan' (vide column 14 Exhibit II). This is the earliest description of it now available. In column 21 the Deputy Collector describes it as forming 'the grant for the support of the charities of Muhammad Ithabar Khan consisting of a Chatram, a water pandal and a mosque.' He then mentions that a former Collector and the Board of Revenue considered it as falling within the operation of Regulation VII of 1817 (The Madras Endowments and Escheats Regulation, 1817) and concluded by proposing to fix a Jodi of 2/3rds of the Regular Survey Assessment, which will become the property of the charities to be applied to them by the Managers for the time being. 'But in column 22, the order of the Commissioner was confirmed for the support of the mosque, water pandal and Chattam on the undertaking that the whole village will be resumed unless 2/3rds of the proceeds are appropriated to the support of the above purposes.' It is cear that the Inam Commissioner did not accept the recommendation of the Deputy Collector. The entry in column 2 as 'personal' and in column 9 'Free Jodi now imposed Rs. 310' must be regarded as embodying the Deputy Collector's view and as not being adopted by the Commissioner, The fact that a third share of the proceeds are being appropriated by the inamdars for their private uses does not make it the less a charity inam see Ramanadan Chettiar v. Vava Levvai Marakayar 39 Ind. Cas. 235 : 40 M. 16 : 32 M.L.J 101 : 15 A.L.J. 139 : 5 L.W. 293 : (1917) M.W.N. 180 : 25 C.L.J. 224 : 21 M.L.T. 115 : 21 C.W.N. 521 : 1 P.L.W. 394 : 19 Bom. L.R. 401 : 44 I.A. at (P.C.) as the grant was only one and cannot be split up into two parts a personal grant of one-third and a charity grant of 2/3rds of the inam. It follows that Exhibit A is not binding on the charity.
3. The next point argued is, that the defendants are barred by limitation from repudiating the transaction of 1882. The plaintiff is a tenant and had been a tenant of the suit land prior to 1882. It is imposible for him to prescribe for the estate of a tenant holding on more favourable terms as the character of the tenant's possession continues and there can be no prescription. In this view, no question of limitation arises and it is unnecessary to consider the effect of the decisions in Vidya Varuthi Thirtha Swamigal v. Balusami Ayyar 65 Ind. Cas. 161 : 44 M. 831 : (1921) M.W.N. 449 : 41 M.L.J. 346 : 3 U.P.L.R. : 15 L.W. 78 : 30 M.L.T. 66 : 3 P.L.T. 245 : 26 C.W.N. 537 : 48 I.A. 302 : 24 Bom. L.R. 629 : 20 A.L.J. 497 : A.I.R.(1922) (P.C.) 123; Damodar Das v. Lakhan Das 7 Ind. Cas. 240 : 37 C. 885 : 14 C.W.N. 889 : 12 C.L.J. 110 : (1910) M.W.N. 303 : 7 A.L.J. 791 : 8 M.L.T. 145 : 20 M.L.J. 624 : 12 Bom. L.R. 632 : 37 I.A. 147 ; Narsya Udpa v. Venkataramana Bhatta 16 Ind. Cas. 53 : 23 M.L.J. 260 : 12 M.L.T. 218 : (1912) M.W.N. 870 and Gnanasambanda Pandara Sannadhi v. Velu Pandaram 23 M. 271 : 2 Bom. L.R. 597 : 4 C.W.N. 329 : 20 I.A. 69 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : 8 Ind. Dec. 591 .
4. Nor are the defendants estopped by their conduct from questioning Exhibit A. In so doing, they do not act in their personal right but as trustees of the institution which cannot suffer from their conduct see Sena Yasim Sahib v. Kadur Ekambara Iyer 54 Ind. Cas. 497 : 37 M.L.J. 698 : 26 M.L.T. 441 : 10 L.W. 673.
5. The result is there will be a declaration that the plaintiff is entitled to hold the suit land as Kudivaramdar on condition of paying the wiram rate prevailing prior to 1882. The decree will be modified accordingly. As Exhibit A provides that, when the landlord wishes to revert to the waram, he can do so only on returning the Rs. 3,000 borrowed by him from the plaintiff, our decision will not stand in the way of plaintiff, recovering such portion of the Rs. 3,000 as may be binding on the trust from the properties appertaining to the charity or the whole of the amount from the heirs of the executants of Exhibit A, if so advised. As the plaintiff has substantially failed he will pay the defendants' costs.