John Wallis, C J - (1.)This is an appeal from the decree of the District Judge of Madura in a suit brought by the plaintiff as heir of the late Zamindari of Kannivadi to recover the zamindari from the first defendant, the Midnapore Zamindari Company, and the second defendant claiming under it. The defendant company acquired the zamindari for more than thirteen lakhs of rupees from the Liquidator of the Commercial Bank of India, which in December 1895 had advanced money on a mortgage to which the plaintiff s grandfather the then zamindar and his son the plaintiff s father were parties, and had subsequently obtained a consent decree for sale, and brought the zamindari to sale and purchased it after the death of the plaintiff s grandfather and the succession of his father to the estate. At the date of the Court sale in 1900 the zamindari was an unsettled palayam, but in 1905 the Bank succeeded in obtaining a permanent sanad under Regulation XXV of 1802 at the same peshkash as had been paid without alteration for more than a hundred years.
(2.)The ground on which the plaintiff has succeeded in the lower Court in recovering the zamindari from the transferees of the auction purchaser is that, at the dates of the mortgage and the mortgage decree and of the sale thereunder, which were prior to the issue of the permanent sanad of 1905 the zamindari was held on the tenure of rendering military and police service as well as of paying the peshkash demanded; and that in these circumstances it; was inalienable "by the plaintiff s grandfather and his father after him for more than the terms of their respective lives. These contentions the District Judge has accepted. At the hearing of the appeal the learned Advocate-General raised the further contention that the zamindari was made inalienable by the provisions of Regulation VI of 1831.
(3.)The appellants did not admit that such services, if they existed, would vender the zamindari inalienable, and contended that, even if this were so, this defect in the Bank s title was cured by the grant of the sanad to them in 1905 which admittedly put an end to such services if they were then in existence, and rendered the zamindari freely alienable. Their main case, however, was that in 1895 the date of the mortgage to the Bank and afterwards, the zamindari was not held on any conditions of military or police service. As regards military service they contended that, when after the cession of Dindigul to the Company by Tippoo in 1792, the then poligar who had been expelled by Tippoo for failure to pay the peshkash imposed upon him, was restored by the Company, the incident of military service was suppressed by the Company in accordance with its settled policy as a necessary preliminary to the introduction of settled government. As regards the police or kaval duties, they admitted that such duties were at first required of the palayagar by the annual sanads issued to him by the Collector of Dindigul, of which several from 1796 to 1804 have been exhibited, but they contended that in accordance with the provisions of Section 5 of Regulation XXV of 1802 and the policy declared therein this police or kaval service was abolished before 1812 and referred to the Fifth Report and Regulation XI of 1816. They contended that the peshkash was permanently settled at the beginning of the last century, and that the delay in issuing permanent sanads in the case of this and some other palaiyams was due to other causes and without any idea of claiming military and police services from them, As regards the alienability of such unsettled palaiyams, they relied upon the decision of the Judicial Committee in the Gandamanaikanur case, Olagappa Chetty v. Arbuthnot (1874) lI.A., 268 at p. 315 not only that such palayams were hereditary but that debts incurred by the holder for the time being were binding on the palayam in the hands of his successors, which could not be the case if they were inalienable except for the lifetime of the holder for the time being. The present contention? they contended was an afterthought. The zamindari after being held under Government management was restored to the zamindar in 1843 on payment of a sum of money for arrears which he had to borrow. To discharge this and other indebtedness of his predecessors one of the zamindars in 1861 granted a thirty-years lease of the zamindari which, was in the nature of a usufructuary mortgage. His successor obtained from this Court a decree in the nature of a redemption decree, and recovered the zamindari by paying off the sum payable to the lessees under the decree in respect of advances made by him to discharge the indebtedness of the estate. The mortgage to the Commercial Bank in 1895 was in respect of the indebtedness incurred by the zamindar in redeeming the zamindari. That it was regarded . as binding on the zamindari was shown from the fact that the next heir, the plaintiff s father, joined in the mortgage and consented to the decree for sale.