Venkataramana Rao, J.
1. This is a suit for maintenance by a Hindu widow. The plaintiff's late husband and the deceased father of the defendant were undivided brothers owning joint family property, movable and immovable. The immovable property consisted of a house and site described in the B Schedule to the plaint and the land described in A Schedule thereto which comprised certain purohit service inam lands in Anaparthi village.
2. The learned District Munsif who tried the suit took into account the income from all the items of immovable property and movable property and gave a decree to the plaintiff fixing Rs. 100 per annum from date of plaint and past maintenance at Rs. 30 per annum for six years prior to suit and provided also for her residence.
3. On appeal the learned Subordinate Judge was of opinion that the income from service inam lands should not have been taken into consideration but nevertheless considered that the rate of Rs. 100 per annum was a proper rate having regard to the income of the family even excluding the income from Anaparthi lands but modified his decree by directing that the maintenance should be payable at the rate of Rs. 100 only from 1935 but at the rate of Rs. 72 from date of plaint up to 1935 and confirmed the decree of the District Munsif in other respects save in regard to the date from which the arrears of maintenance had to be paid.
4. Mr. Somasundaram on behalf of the plaintiff raises two contentions before me; (1) the view taken by the learned Subordinate Judge in regard to the income from, service inam lands is not sound, (2) the modification in regard to the rate of future maintenance awarded by the District Munsif is wrong. In regard to the first contention Mr. Somasundaram relied on Section 12 of the Madras Act III of 1895, and the Board's standing orders and submitted that the service inam lands must be treated as partible property though alienation thereof may be forbidden and the incline therefrom should be taken into account in fixing the amount of maintenance. He contends that under Section 12 of the Act as contrasted with Section 10, in cases of offices coming under Section 3 Sub-section 4 of the Act the office will be heritable and divisible among the members of the family just like any other property. Section 12 runs as follows:
The succession to village offices forming Clause (4) in Section 3 shall devolve in accordance with the law or custom applicable thereto at the date on which this Act comes into force.
5. The question, therefore is, what was the law or custom applicable to purohit service inams on the date when Madras Act III of 1895 came into force. The origin of village service inams is well known. Grants of lands or assignments of revenue were made to the Revenue Officers of the State as well as to other public officers, village servants or individuals employed in conducting the general concerns and. administering to the public wants and necessities of the village communities into which the whole country was divided. The purohit was one of the 12 village officers or servants in a village establishment and functioned in the village economy. The emoluments of these village officers whether in the shape of lands or assignments of revenue or of fees, were annexed by the State to the Office as remuneration for the performance of public services and intended not to be separable from the office to which they were attached and were not being regarded by the State as private property divisible among the members of the family. It is also known that at the time of the Permanent Settlement these service inam lands were not included in the assets of the zamindary but were excluded as lakiraj lands and retained at the disposal of the State in the interests of the public service. As the officeholders were subjecting these lands to unauthorised alienations, very early steps were taken by the State to prevent their diversion from the purpose for which they were intended and Regulation VI of 1831 was enacted. The preamble to the Regulation and Section 2 indicated the policy of the State in regard thereto. Section 2 which corresponds to Section 5 of Madras Act III of 1895 was in these terms:
It is hereby declared that all emoluments derived from lands from fees in money or grain, or from other sources, which have been annexed by the State to hereditary village and other offices in the revenue and Police departments are inalienable from such offices by mortgage, sale, gift or otherwise; that all transfers which may hereafter be made thereof by the holders of such offices shall be null and void, and that such emoluments shall not be liable to attachment or other process in satisfaction of decrees of Court.
6. This Regulation was interpreted as applicable to all village offices and not only to offices in the Revenue and Police departments as contended by Mr. Somasundaram. As early as 1852 this Regulation was held applicable to all village offices wherever situated except that of karnam or village accountant in permanently settled estates (Vide S.O. No. 91 Dalyell's Edition of Standing Orders of the Board of Revenue). In Pichu Vayyan v. Vilakkudayan Asari 21 M 134, blacksmith's and carpenter's inams were held to be within the purview of Regulation VI of 1831. [See also Palamalai Padayachi v. Shanmugha Asari 17 M 302 and Kandappa A chary v. Vengamma Naidu 37 M 548 : 20 Ind. Cas. 634 : (1913) M W N 600 : 25 M. L J 42 : 14 M L T 146].
7. The subject of the Regulation was to prohibit every kind of alienation and transfer, and partition was also intended to come within its ambit. The Circular Orders of the Board of Revenue dated October 26,1858, and March 11, 1859, clearly outline the policy which prohibited even partition hot only with reference to the office of karnam but also with reference to all village offices. The Circular Order of the Board of Revenue dated October 26, 1858, is in these terms:
The Board consider that the continued enjoyment by the dismissed karnams and their relatives, of any portion of the maniam land attached to the office of karnam is highly improper.
8. The Collector will take immediate measures for placing this portion of the original emoluments attached to the office, in the hands of the person performing the duty and should he be of opinion that it is still insufficiently remunerated, he will submit his proposals for the restoration to it of such portion of the maniam lands that were resumed in default of payment of quit rent as he may consider necessary.
9. The Board trust that no opportunity is neglected of remedying by degrees the existing very objectionable state of things as regards the maniam land of village officers, which throughout the Northern Sircars appear to have been in great measure alienated from, the office to which they properly attach for the benefit of a set of persons who perform no kind of public duty and have no shadow of right to their enjoyment Vide G.O. December 18, 1845. Vide G.O. June 6, 1859, Annexed.'
10. The Circular Order of the Board of Revenue, dated March 11,1859, runs thus:
Resolved that the concluding part of Extract Minutes consultation, No. 188 R.D. dated February 11,1859, as entered in the margin be circulated to all Collectors for information and guidance. (2) The Board have steadily discountenanced division of the emoluments of Village offices, and they rely on the co operation of the local officers, to enable them to gradually abolish a practice which is so utterly destructive of the efficiency of that valuable and useful corporation. Extracts., Minutes, Consultation February 11, 1859, R.D. No. 188. The Government view with special disapproval the sub-division of village officers' emoluments, already very insufficient, and they request the Board will adopt measures for reuniting the emoluments to the duties in the present case, and that they will discountenance all such severances, when brought to their notice in future.
11. This was embodied in 1865 edition of the Standing Orders of the Board of Revenue (vide Dalyell's Edition Section 90, Rule 4) ran thus:
2 The sub-division of the emoluments of office among the several persons is also objectionable, and in all cases, in which this has already taken place, every opportunity should be taken of gradually restoring them to such number of persons only as are absolutely necessary for the proper performance of the duties of office. In cases too, where persons doing no duty are enjoying the profits of office, whenever a lapse takes place, the emoluments should be restored to the persons who actually perform the work. Vide also Mclean's Edition of Standing Orders of Board of Revenue 1879: S.O. No. 172, Clause 4.
12. In 1883 in Venkata v. Rama 8 M 249, the question as to the rights of the members of a family to the emoluments of the office of karnam came up for consideration. In that case a karnam service inam was enfranchised in favour of the appellant who was the officeholder at the time of the enfranchisement. The respondent as the representative of the former incumbent sued to recover the land. The office was actually held by three persons, but there were three other persons of whom one was the adoptive father of the respondent, who were recognised as having an hereditary claim to the appointment, and who were termed ghair misldars or men out of office. In this character the respondent's father had been allowed by the office-holders to hold some of the inam lands. As the respondent's father died, a claim was made on behalf of the respondent that the lands held by his father should be granted to him. The claim was negatived. Turner, C.J., observed at p. 259 Page of 8 Mad.--[Ed.]:
When the emoluments consisted of land, the land did not become the family property of the person appointed to the office, whether in virtue of an hereditary claim to the office or otherwise. It was an appanage of the office inalienable by the office holder and designed to be the emolument of the officer into whose hands soever the office might pass.
13. And be pointed out that in practice where one member was recognised as the office-holder, other members enjoyed parts of the inam lands which constituted the emoluments of the office, such a practice was not legal. Muthusamy Ayyar, J. made the following observation on the enactment of Regulation VI of 1831 at p. 266 Page of 8 Mad.--[Ed.]:
According to Section 2 of the last mentioned enactment, all emoluments derived from the lands annexed by the state to hereditary village offices were inalienable from such offices either by mortgage, gift, sale or otherwise, and all transfers that were thereafter made by the holders of such offices were null and void. The possession of the respondent's father, then as a ghair misl kainam from 1870--74, was contrary to the Regulation and therefore illegal. It was prof ably due to an arrangement male with the office-bearers, not uncommon in this Presidency, whereby the office bearers discharged the duties of the office, but its emoluments were divided by them with their co-sharers. Such an arrangement being, however, null and void according to the Regulation, the respondent's father had no legal right to continue in possession, and the Collector was at liberty to put an end to it at any time and reattach the land to the office from which it was illegally severed. Even according to the Standing Order of the Board of Revenue which as a matter of policy enjoined consideration to the party in possession, Collectors were required, in cases where persons doing no duty were enjoying the profits of the office, to restore the emoluments to persons who actually performed the work when a lapse took place.
14. It will be seen from the above passage that the prohibition in the Regulation covers also a case of partition and the observations will apply to all village offices. In Venkata Jagannadha v. Veerabadrayya 44 M 643 : 61 Ind. Cas. 667 : 41 M.L.J. 1 : 34 C L J 16 : 14 L W 59 : (1921) M W N 401 : 30 M L T 14 : 26 C W N 302 : A.I.R. 1922 P C 96 : 46 I A 244 , the Privy Council which restored the law as staled in Venkata v. Rama 8 M 249 approved the observations of both Turner, C.J. and Muthusamy Ayyar, J., and it is also indicated therein that the principle of partition is inconsistent with the principle that the right to the land could only be acquired through the right to the possession-of the office.
15. In Venkata v. Rama 8 M 249, Mr. Justice Brandit in his dissenting judgment raised the question :
When there are several other persons equally entitled it would he a difficult question whether they shall also share the land or if not on what principle the Court should discriminate them.
16. This difficulty cannot in any way affect the nature of the property and the incidents attached thereto. Where the office-holder dies leaving sons more than one, it may be the office will be performed by them by turns or service may be distributed and the emoluments enjoyed in such a manner as they may deem fit but the emoluments enjoyed by each will be his separate property as salary for the service he renders and this income cannot be deemed to be joint family property available for family necessities. It cannot be said that the maintenance payable to the plaintiff can be charged on the lands of the income thereof, nor can they be sold for arrears of maintenance. The question of succession to the office and the devolution of the office on more than one heir have in my opinion nothing to do with the question whether the land or income can be regarded as joint family property like any other property available for division and appropriation for all the charges and expenses for which ordinary family property can be rendered liable under the Hindu Law. Therefore the income from Anaparthi lands cannot be taken into account in fixing the rate of maintenance. I think, however, the second contention of Mr. Somasundaram must prevail. The reason assigned by the learned Subordinate Judge for the modification of the rate of maintenance from date of plaint to 1935 is that the defendant was a minor and that his guardian and mother had apparently to depend upon others in regard to various matters, and that till he attained about 20 years of age some additional expense may have to be incurred as services of others will have to be employed in managing the estate. There is absolutely no evidence to justify this observation of the learned Subordinate Judge and he was not right in reducing the rate of maintenance. I therefore set aside the order of the learned Judge in this behalf and restore that of the District Munsif. With this modification the second appeal fails and is dismissed. I direct each party to bear his own costs of this appeal.