John Wallis, C.J.
1. This is no doubt a case very much on the line and has given rise to a difference of opinion between the District Munsif and the Subordinate Judge, and between the two learned Judges who heard the second appeal, and on the Letters Patent Appeal. On the whole I am disposed to Agree with the conclusion of Sadasiva Aiyar, J., that; there are not sufficient grounds for interfering in second appeal with the finding of the District Judge. As regards the disputed passage in Alexander John Forbes v. Meer Mahomed Tuquee 13 M.I.A. 438 : 14 W.R. 28 : 5 B.L.R. 529 : 2 Suth. P.C.J. 358 : 2 Sar. P.C.J. 588 : 20 E.R. 614 I agree with Ayling, J., that their Lordships considered that the fact that in that case no quit rent had been reserved although the land had been included in the assets of the zamindari on which peishcush was payable, was a circumstance which, taken with all the other circumstances of that case, would have clearly negatived a power of resumption; but that was only one of the circumstances to be taken into account in the absence of a grant. Here we have the terms of the grant embodied in a pattah and muchilika. It is true that past services are mentioned by way of inducement, and that the land is to be enjoyed from father to son, but it is granted to the grantee who is described as nakesh for his services by which I understand his services as nakesh, and it is expressly provided that it is to be held as service inam. Service inams are admittedly resumable where Government is the grantor and in the case of darmilla inams, that is to say, inams granted by zamindars since the date of the Permanent Settlement, where they are service inams granted for services of a personal nature, I agree with Sadasiva Aiyar, J., that the balance of authority in this Presidency is in favour of their being resumable. The governing provision, in my opinion, is that they were to be held on service tenure, the service being the service of nakesh, and I think it follows that they must be considered resumable. See Venkata Narasimha Appa Row v. Sobhauadri Appa Row 13 M.L.J. 209; Vadisapu Appandora v. Vyricherla Veerabhadraraju Bahadur Garu 12 Ind. Cas. 487 : (1911) 2 M.W.N. 406 : 10 M.L.T. 391; Karupamaya Ananga Bheema v. Sondi Prahaladha Bissoyi Ratno 21 Ind. Cas. 833 : 14 M.L.T. 562 : (1914) M.W.N. 179. For these reasons I would dismiss the appeal.
Seshagiri Aiyar, J.
2. The Zemindar of Pittapur sues to recover possession. The lands in suit were granted in 1868 by the plaintiff's predecessor-in-title to one Mrutyanjayadu from whom the defendants claim (Exhibit I). Plaintiff's case is that the grant was by way of remuneration for services and that as he no longer requires the defendants' services, he is entitled to resume the lands. The lower Appellate Court differing from the District Munsif gave a decree to the plaintiff. In second appeal, Ayling, J., was for reversing that decision, while Sadasiva Aiyar, J., was in favour of confirming it. Hence this Letters Patent Appeal.
3. The deed of grant when it is forthcoming should first be examined to see whether the grant is revocable or not. An analysis of the contents, Exhibit I, brings out the following statements: (1) It is a grant made to Nakesh Mrutyanjayadu. It must be explained here that the term nakesh denotes a decorator. It is common ground that this man was employed in painting pictures on the walls of the Samasthanam buildings; (2) it recites that the donee had rendered services in the past; (3) that the said services were acceptable to the donor; (4) that the lands were granted as service inam; 29 M. 52 : 16 M.L.J. 1 : 1 M.L.T. 3 : 3 C.L.J. 1 : 3 A.L.J. 55 : 8 Bom. L.R. 1 : 10 C.W.N. 161 : 33 I.A. 46 that the grantee was to pay a fixed kattubadi; 30 Ind. Cas. 416 : 18 M.L.T. 142 that he was, in future, to render services which would deserve the approbation of the divanum; and (7) that the lands were to be enjoyed from son to grandson, In addition to the above statements a few more may be mentioned as a result of the findings of the Courts below; (8) the kattubadi was never enhanced during the 45 years that the defendants were in possession of the land; (9) the lands had descended in the lineal line for three generations; (10) the defendants are and always have been willing and ready to render the service.
4. I have set out in detail the above circumstances, because in arriving at a conclusion regarding the nature of the grant, the cumulative effect of all of them has to be considered. The decided cases which I shall refer to, but not in detail, show what combination of circumstances constitute a grant of office, as distinguished from a grant of land burdened with the duties of an office.
5. Mr. Srinivasa Aiyangar for the respondent laid stress on the use of the word nakesh as a prefix to the grantee. I do not think that the word is anything more than descriptive of the person. It is admitted that prior and subsequent to the grant, a salary was paid for doing decorative work. Further, it is in evidence that the grantee and his successors were called upon to do mochi work; consequently, it is clear that the use of the expression nakesh was not intended to denote the office which was then being conferred. The learned Yakil then relied upon the statement that the land has been granted to you as service inam.'' It is true that the presumption in Government grants is that the lands granted as service inam are resumable. The same considerations do not necessarily apply to grants by zamindars. It is well settled that the service grants by zamindars are not always resumable, Venkcata Narasimha Appa Row v. Sobhanadri Appa Row 8 Bom. L.R. 1 : 10 C.W.N. 161 : 33 I.A. 46 and Alexander John Forbes v. Meer Mahomed Tuquee 13 M.I.A. 438 : 14 W.R. 28 : 5 B.L.R. 529 : 2 Suth. P.C.J. 358 : 2 Sar. P.C.J. 588 : 20 E.R. 614. The next contention is that as the service was personal, it was open to the zamindar to dispense with it and to resume the land. Here again, it is not in every case of personal service that the grant can be resumed. In Idubilly Siyyaddi v. Visweswara Nissanka 30 Ind. Cas. 416 : 18 M.L.T. 142 the gadiba service inam, was expressly granted for future services and as wages for these services. Visweswara Missenka v. Gorla Budaradu 7 Ind. Cas. 401 : 8 M.L.T. 82 : (1910) M.W.N. 436 is to the same effect. In Sanniyasi v. Salur Zemindar 7 M.P 268 the grant was not produced, and it was found that the kattubadi was enhanced from time to time. Mahadevi v. Vikrama 14 M.P 365 belongs to the same category. On the other hand, in Yellava Sakreppa Barki v. Bhimappa Gireppa Desai 28 Ind. Cas. 12 : 17 Bom. L.R. 128 : 39 B.P 68 a grant made for lamplighting and other menial services was held not resumable. No general rule can be laid down, apart from other circumstances, that a grant for personal or menial services is liable to resumption. Mr. Srinivasa Aiyangar's next attack was directed to the use of the clause 'you shall be rendering service so as to deserve the patronage of the divanum'. He argued that these words realty meant that the grantee was to hold the lands during the pleasure of the grantor. I do not think this forced construction is sustainable. It is well known that such expressions find place in grants by zamindars and are suggestive only of the vaingloriousness of the grantor and not of any intention to cut down the effect of the grant. These words are a harmless enunciation of self-importance as pointed out by Mr. Patanjali Sastri for the appellant. Vizianagaram Maharaja v. Suryanarayana 9 M.P 307 : 13 I.A. 32 : 4 Sar. P.C.J. 696 : 10 Ind. Jur. 193 and Vizianagaram Maharajah v. Sitaramarazu 19 M.P 100.
6. If we eliminate these considerations, we find that the grant was made in consideration of past services, that the kattubadi first fixed was never enhanced, that it was hereditary and did descend from son to grandson, and that the grantee's heirs are ready and willing to perform the duties of nakesh and of mochi. These facts bring the case within' the rule laid down in Alexander John Forbes v. Meer Mahomed Tuquee 13 M.I.A. 438 : 14 W.R. 28 : 5 B.L.R. 529 : 2 Suth. P.C.J. 358 : 2 Sar. P.C.J. 588 : 20 E.R. 614 and Raja Lilanand Singh Bahadur v. Thakur Munorunjun Singh 13 B.L.R. 124 : 1 L.A. Sup. 181. One paragraph in the former judgment of the Judicial Committee was claimed by both the learned Vakilsas favouring their respective contentions. The two learned Judges who differed in second appeal were prepared to hold that paragraph was in favour of the position taken by each of them. The paragraph runs thus: 'Had this been a grant reserving to the zemindar a small money-rent, as well as the services, if indeed the latter are reserved to the zemindar, their Lordships would have had no doubt upon the case. But it seems to them that the unexplained anomaly of making mal lands rent-free in the hands of the jagirdars does not affect the construction of the sanad, or the rights of the parties'. In the previous paragraph, their Lordships held that if the parties wilfully fail to perform the service, the lands could be resumed, but pointed out that there was no longer any occasion for the performance of the services. Then they say that if a money-rent was reserved in addition to the services to be rendered, provided those services were personal, 'Their Lordships would have no doubt upon the case,' The circumstance which rendered this sure position somewhat doubtful is mentioned in the next sentence, and that is the lands claimed were included in the mal assets of the zamindari in settling the peishcush. In the view of their Lordships, it is an anomaly that such lands whose assessment was taken into account in settling the peishcush should be granted away permanently. This anomaly according to them is met sufficiently by the fact that there was a small money-rent plus some personal services. Their Lordships held that the apparent anomaly 'does not affect the construction of the sanad or the rights of the parties.' It seems to me that their Lordships regarded the payment of a fixed amount as a strong circumstance indicative of the permanency of the grant made. I do not think any useful purpose will be served by examining the other authorities quoted at the Bar. In my opinion, the present case is stronger than the one which the Judicial Committee had to deal with in Alexander John Forbes v. Meer Mahomed Tuquee 13 M.I.A. 438 : 14 W.R. 28 : 5 B.L.R. 529 : 2 Suth. P.C.J. 358 : 2 Sar. P.C.J. 588 : 20 E.R. 614, and consequently, I hold agreeing with Ayling, J., that the plaintiff is not entitled to resume the lands. The appeal must be allowed and the suit should be dismissed with costs throughout.
7. The sole question for determination is whether the plaint service inam is resumable or not and the decision must depend upon the nature of the grant--as pointed out by their Lordships of the Privy Council in 1870 in Alexander John Forbes v. Meer Mahomed Tuquee 13 M.I.A. 438 : 14 W.R. 28 : 5 B.L.R. 529 : 2 Suth. P.C.J. 358 : 2 Sar. P.C.J. 588 : 20 E.R. 614 and again in Raja Lilanand Singh Bahadur v. Thakur Munorunjun Singh 13 B.L.R. 124 : 1 L.A. Sup. 181, where it was recognized that there is a clear distinction between the grant of an estate burdened with a certain service and the grant of an office the performance of whose duties is remunerated by the use of certain lands. In both cases a particular grant of the former class was held to be irresumable. The view that a grant of land burdened with service, that is to say, a grant of land to which is attached a condition that the holder shall perform a certain service, is not resumable at the will of the grantor so long as the holder is able and willing to per form the service, has been consistently held by the Courts in India ever since the decision in Alexander John, Forbes v. Meer Mahorned Tuquee 13 M.I.A. 438 : 14 W.R. 28 : 5 B.L.R. 529 : 2 Suth. P.C.J. 358 : 2 Sar. P.C.J. 588 : 20 E.R. 614 but I need not refer to them in detail as on this point there is no real dispute between the parties to this appeal, the same view having again been clearly enunciated by the Privy Council in Vencata Narasimha Appa Rao v. Sobhunadri Appa Rao 29 M.p 52 : 16 M.L.J. 1 : 1 M.L.T. 3 : 3 C.L.J. 1 : 3 A.L.J. 55 : 8 Bom. L.R. 1 : 10 C.W.N. 161 : 33 I.A. 46. In this latter case their Lordships enumerated the reasons which in their view were sufficient ground for holding that the grant was one subject to a burden of service and not a grant in lieu of wages as follows: 'In the first place, no office by any particular designation was conferred upon the original grantee, but an obligation of a feudal character was imposed upon him. He was simply to provide a specified number of men as custodians, so to speak, of the zemindar's property, and their services appear to have been rendered intermittently and not continuously. Besides, they were paid in money when they actually performed such services, that is to say, batta was given to them when actually on duty. It is also certain that in later years their services were not in frequent requisition, because, as Mr. Taylor points out in his report, the zemindars would have had to pay in the shape of batta more than the services were worth. In the second place, the following circumstances indicated as plainly as possible a fixity of tenure. The mokhasadars have paid a uniform rent of Rs. 144 a year for the last 120 years without alteration at any time, and the land has descended from father to son hereditarily. There has been no instance of resumption or even an attempt at resumption during all this time. There has also been no attempt to enhance or to alter the rent, or to interfere with the devolution of the properly from heir to heir.'
8. In the present case the grant is made to one 'nakesh' Mrutyunjayadu as 'service' inam but the nature of the service is not specifically stated in the grant, but it is admitted that the service was that of nakesh or decorator, and that the holder also performed mochi service. The word nakesh prefixed to the grantee's name appears to me to be a mere title. The rent payable on the land has always been the same, and the grant recites that enjoyment shall be from son to grandson and so on in succession, and as a matter of fact, the land has descended to the holder's son and grandson without objection till now, nor has any attempt been made before this to resume the grant or enhance the rent. We also have the recital in the grant: 'as you who are deserving of the patronage of the divanum have been rendering service properly you were favoured and lands have been granted,' which certainly goes to show that the grant was a reward for past services, and that this was so is further proved by the fact that the grantee's services were recompensed by the same salary both before and after the grant, and this is a very strong piece of evidence that the grant was not made in lieu of wages. The circumstances of this case appear to me to be stronger than those in Venkata Narasimha Appa Row v. Sobhanadri Appa Row 29 M.P 52 : 16 M.L.J. 1 : 1 M.L.T. 3 : 3 C.L.J. 1 : 3 A.L.J. 55 : 8 Bom. L.R. 1 : 10 C.W.N. 161 : 33 I.A. 46 in support of the view that the grant is not one in lieu of wages. The fact that the nature of the service is in this case personal does not affect the question, which depends solely on the nature of the grant, and for the same reason it is immaterial whether the service is of a feudal nature or otherwise. In Vadisapu Appandora v. Vyricherla Veerabhadraraju Bahadur Garu 12 Ind. Cas. 487 : (1911) 2 M.W.N. 406 : 10 M.L.T. 391 to which I was a party, it was held that in the case of a grant subsequent to the Permanent Settlement to which services of a personal nature were attached, there is in the absence of any evidence a presumption that the grant is resumable, but in this case the presumption has been amply rebutted by the circumstances mentioned above. I, therefore, agree with Ayling, J., that this is a grant which is not resumable so long as the grantee is able and willing to perform the service. I have not thought it necessary to refer to the very numerous cases cited on both sides in which the law, as I understand it, has been applied to the circumstances of each particular grant and the nature of the grant interpreted accordingly, because each case must be decided on its own merits.
9. In the result, the appeal is allowed and the suit dismissed with costs throughout.