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Madras High Court
Kumara Tirumalai Naik And Ors. vs Bangaru Tirumalai Sauri Naik And … on 30 March, 1898
Equivalent citations: (1898) ILR 21 Mad 310
Bench: S Ayyar, Davies


1. The following are the undisputed facts of the case. About the beginning of the last century, the zamindars of Sivaganga and Guntamanaikanur made a free grant of the two villages of Vellikurichi and Thekkampatti, respectively, to Raja Bangaru Tirumalai Naikar, the last of the Naik rulers of Madura, for the maintenance of the rank and dignity of his family. The plaintiffs and the defendants Nos. 1 to 23 are his descendants. In 1844 a suit was brought by the present first plaintiff’s father for a partition of these villages between the members of the family, but it was held by the Court of Sadr Adalat, after consultation with its pandits in Hindu law, that the corpus of the property was indivisible, but its annual produce was divisible, and they directed the Civil Court to determine the parties by whom and in what shares the joint participation of the annual profits of the estate was to be enjoyed. The Civil Judge thereupon, in September 1852, passed a decree, defining the shares of the produce to which the several members of the family were legally entitled. In the course of the execution of that decree, the parties entered into a razinamah (Exhibit C of the year 1857), whereby they agreed slightly to vary the distribution of the shares ordered by the decree as they had to include another member of the family who had been omitted from the decree to take a share. They further agreed that the estate should be held indivisible and inalienable in consonance with the decree, and they also agreed that the management of the estate should continue to be vested in the eldest line subject to certain supervision on the part of the other members. The father of defendants Nos. 1 and 2 represented the eldest line and managed the estate until his death in June 1892. The first and second defendants now represent the eldest line on whom the sole right of management has devolved but they are minors, and their mother, the twenty-fourth defendant, is managing the estate on their account with the help of an agent, defendant No. 25, appointed by her. The plaintiffs bring this suit to remove defendant No, 24 from the management and with her, her agent, the twenty-fifth defendant, on the ground that she is not entitled to manage the estate and has, moreover, been guilty of mismanagement thereof, in that she has not only not given them their share of the produce, but has also denied their right thereto, and that she has been improperly granting cowles for valuable pieces of land in favour of defendants Nos. 26 to 34. They pray that, on the removal of the twenty-fourth defendant from the management, either the first plaintiff or another fit member of the family may be appointed to the management and that the cowles granted by the twenty-fourth defendant to defendants Nos. 26 to 34 may be cancelled. The plaintiffs also pray for the recovery of their share of the produce for fasli 1304 which has been withhold from them. Defendants Nos. 3 to 23, all the other members of the family, but defendants Nos. 1 and 2, support the plaintiffs’ claim. The twenty-fourth defendant contests it on behalf of defendants Nos. 1 and 2, her sons, and defendants Nos. 26 to 34 also contest it so far as the cowles which they hold are concerned, which they allege were validly granted to them by the twenty-fourth defendant. The twenty-fourth defendant contends that she has the right of management as the natural guardian of her sons in whom the sole right to manage lies and that there has been no mismanagement, on her part. She also takes objection to the suit on two grounds–(1) that it does not lie upon the razinamah (Exhibit C) and (2) that it could not be brought without a certificate from the Collector under the Pensions Act XXIII of 1871. The Subordinate Judge has found that there was no objection to the suit on the two grounds just stated, but that there was no ground for the removal of the twenty-fourth defendant from the management which she was entitled to hold on behalf of her sons, defendants Nos. 1 and 2, and that the other members of the family had no right to the management. He also held that the cowles granted to the defendants Nos. 26 to 34 were good and valid and simply gave the plaintiffs a decree for what he found to be the produce due to them for fasli 1304.

2. The plaintiffs appeal against the decision of the Subordinate Judge refusing to remove the twenty-fourth defendant from the management and to cancel the cowles, while the first, second and twenty-fourth defendants, by way of a memorandum of objections, still maintain that the suit is not maintainable on the razinamah and that the Pensions Act applies to it. It will be more convenient to dispose of these two objections first. On the first point we find that the razinamah (Exhibit C) is binding upon the parties. It was an agreement or contract entered into by them for a settlement of disputes which arose subsequent to the decree which it did not vary in any material matter. It has been frequently acted on without either party impugning its validity, and its terms being merely declaratory of the rights of the parties can be enforced only by a separate suit. We, therefore, overrule the first objection to the suit.

3. As to the second objection taken under Section 4 of the Pensions Act XXIII of 1871, namely, “no Civil Court shall entertain any suit relating to any pension or grant of money or land revenue conferred or made by the British or any former Government” without a Collector’s certificate, it is evident from the history of the case as contained in the extract from the inam register upon which the inam title-deeds were issued and from the statements in the pleadings of both plaintiff’s and defendants, that the grant was not “conferred or made” by the British Government or any former Government, for it was made by the zamindars of Sivaganga and Gunta manaikanur. It was then contended that, although the original grant may not have been by any Government, yet the British Government by recognising and confirming the inam granted by the zamindars has itself made a grant of the land revenue. Assuming, however, that the act of this Government in con firming the inam amounted to a re-grant of it, it cannot be said that the giving of land free of revenue is a grant of land revenue so as to bring the case within the provisions of the Pensions Act. “Freedom from liability to land revenue is not identical with holding a grant of land revenue, any more than the extinction of an easement by becoming sole proprietor of the property, servient as well as dominant, is a grant of an easement. The land revenue arising from a man’s own holding, when it is remitted, and the land pays nothing, is rather extinguished than granted.” See Babaji Hari v. Rajaram Ballal I.L.R. 1 Bom. 75 at p. 81. But, as a matter of fact, this Government had no power to tax this inam and therefore made no grant of it. Although by Section 4 of Regulation XXV of 1802, the ‘right’ of this Government was reserved to continue or abolish the exemption from revenue of lakhiraj lands such as this, yet by Regulation XXXI of 1802 passed the same day as Regulation XXV that power was taken away in respect to this particular inam, that is assuming that it was situated in the district of Dindigul, inasmuch as it had been granted previously to the 18th day of March 1792. By Section 2 of this Regulation, the grant was declared valid subject only to its registration under Section 15. Further, supposing that it was not in the district of Dindigul, or that such registration had not been effected so as to give the inamdars a complete title as against Government, it is clear that when in 1859 or 1860 the Government made their rules for the adjudication and settlement of the inam lands in this presidency, they declared, under Rule 1, that all inams which had been held uninterruptedly for a period of fifty years should be treated as possessed under a valid title whatever may have been their origin. This admittedly is such an inam, and it was confirmed to the grantee under Rule 5 of the Inam Rules. The Government having retained to themselves no power to resume it, cannot be held to have made any fresh giant of it. On all these grounds, therefore, we are of opinion that this case does not fall within the provisions of Section 4 of the Pensions Act. The memorandum of objections must, therefore, be dismissed with costs.

4. Coming now to the appeal, we agree with the Subordinate Judge that the grant of the cowles to defendants Nos. 26 to 34 by the twenty-fourth defendant was not an act of mismanagement. We consider that it was within the competence of the manager of the estate to grant such cowles. Similar grants had been made by the first and second defendants’ father without objection on the part of the other members of the family, and we find nothing in the terms of the razinamah (Exhibit C) prohibiting such grants by the manager as was urged for the plaintiffs. There is nothing to show that the rents secured by the cowles are not fair and advantageous to the estate, and we do not believe the plaintiffs’ story that they were corruptly obtained by the payment of nuzzers. We therefore dismiss the appeal so far as it concerns defendants Nos. 26 to 34 with costs.

5. The most material question in the suit which is now left for our decision is, whether the twenty-fourth defendant should not be removed from the management, and if she is removed therefrom how the management is to be carried on during the incapacity of defendants Nos. 1 and 2 by minority or otherwise. The settlement of this question depends very much upon the settlement of the question of what interest in the estate the members of the family other than defendants Nos. 1 and 2 possess. The Subordinate Judge has found that the first and second defendants are the absolute owners, and that the other members have only a right to maintenance according to the shares agreed upon. But we cannot concur in this view. The right, which the other members of the family undoubtedly have to specific defined shares out of the net income of the estate, is certainly greater than the right to mere maintenance. An absolute right to take the rents of land ordinarily involves a right to the land itself see Mannox v. Greener L.R. 14 Eq. 456 and Section 159 of the Indian Succession Act, where the same principle is laid down]. But, where there is a clear intention that only the profits of the land are to be taken and not the corpus, the general rule would not apply. Now, here we have both in the decree in the suit of 1844 and in the razinamah (Exhibit C) a clear prohibition against the devision of the corpus which is declared to be impartible. But for this prohibition, the members of this family would be entitled by virtue of the division of the shares of the produce to a division of the lands, and it is only the decree, which we cannot question, that prevents such division. But that the members of the family have a common right in the property is declared in the answers by the pandits. In their first answer, they say that the estate having been granted for the maintenance of this family belongs to all its descendants, and in their second answer they refer to the property as common to all the members of the family. Their opinion so clearly expressed is no doubt in accordance with the law. So that we must view the plaintiffs and defendants Nos. 3 to 23 as co-owners of the property with defendants Nos. 1 and 2. That being so, they would have an equal right to management with defendants Nos. 1 and 2, had it not been for their own agreement in the razinamah that the sole right of management should remain in the eldest branch of the family represented by defendants Nos. 1 and 2. That precludes them from claiming such a right now. It is urged on their behalf that the razinamah (Exhibit C) itself contemplates a right to joint management. But we are altogether unable to read it in that light. It seems to us clear that the only right reserved to the other members of the family after placing the sole right of management in the senior branch of the family is that of supervision only. Although they have thus bartered away their right to joint management, they yet have a right to see that their interest in the joint property is protected, and they very naturally complain that the affairs of their estate are now being actually managed by a complete stranger, the twenty-fifth defendant, the agent of the twenty-fourth defendant. The twenty-fourth defendant is clearly not a proper person to be entrusted with the management of the whole estate, for she is a gosha lady and is, in consequence, compelled to employ an agent to do work for her. Moreover, he or she or both together have not only omitted to distribute to the plaintiff’s their proper share of the produce of the land, but have gone further and denied their right to it in this suit. These circumstances are quite sufficient to disentitle her to hold the management any longer. As the natural guardian of the first and second defendants she may be entitled to look after their interest, but their interest is, as we have shown, only a small portion of the whole interests involved. We shall, therefore, direct her removal from the managership and with her, of course, the twenty-fifth defendant, her agent. It remains to determine who is to look after the estate, while the first and second defendants, who are entitled by right to do so, are incapacitated by reason of their non-age. The razinamah contains no provision for a case like this, where the person entitled to manage is incompetent, and we have found that the other members of the family are not entitled as of right to take up the management. In the absence then of a competent hereditary manager, we think the proper course will be to direct the appointment of a receiver for the proper preservation of the property, until the first or second defendant is competent to undertake the duties of hereditary manager. We shall, therefore, direct that one of the parties interested in the property, either the first plaintiff or such a one of the defendatnts Nos. 3 to 23 as is a major and otherwise eligible, be appointed as receiver of the estate without remuneration, until the first or second defendant attains majority, or until further orders. It will be left to the Subordinate Judge to select the individual and he will take security from him to the amount of one year’s income. We accordingly add to the decree of the Subordinate Judge a direction for the removal of the defendants Nos. 24 and 25 from the management of the estate and for the appointment in their place of a receiver on the terms above stated, and we shall modify the lower Court’s decree as to costs by directing that the costs of defendants Nos. 1, 2, 24 and 25, namely, Rs. 298-14-6, be borne by themselves, instead of being borne by the plaintiffs. In this Court also the plaintiffs, who have not succeeded on the ease they set up, and defendants Nos. 1, 2, 24 and 25 will bear their own costs and so will defendants Nos. 3 to 23. As already ordered, the plaintiffs will pay the costs of defendants Nos. 26 to 34, and will get costs from defendants Nos.1, 2 and 24 on the memorandum of objections.

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