1. These are five suits brought by the wife of a zamindar challenging the right of Government (the defendant) to enfranchise service inam lands, three of which relate to talayaris and two to karnams. The burden of proof has been correctly cast. The onus originally rested upon plaintiff to prove her claim. She has proved that these inams were within the ambit of the zamindari. Then it rests with the defendant to prove that they were excluded from the zamindari, and the right of enfranchisement belongs to Government.

2. The documents upon which the defendant relies are mustered in para. 5 of the lower appellate Court judgment, and we agree with the lower Courts that their combined effect is to show that these inams were granted before the settlement of 1802. Particularly significant is Ex. 2-D, which shows the manyams enjoyed " up to fasli 1212"; and there is nothing produced by plaintiff or otherwise upon the record to suggest that any inams were granted subsequent to that date.

3. It is contended that a presumption lies against the defendant because he has failed to produce the record of the original settlement of this zamindari which would put the matter beyond dispute. No doubt the failure to produce that document, assuming it to be in defendant's favour, has deprived him of his (best defence; and he has been driven to build up a case on such inferences as can be drawn from the miscellaneous documents that have been filed. But in a case of this sort it is scarcely fair to suggest that the document has been withheld by the defendant because it is not in his favour. Government's only concern is to deal fairly between public and private interests and had a document been forthcoming showing beyond doubt that the title lay with the plaintiff, her rights presumably would have been recognized. It must be taken that the stricture passed in Parthasarathi Appa Rao v. Secy. of State [1913] 38 Mad. 620 was in regard to the special circumstances of that case and in this case the fairest presumption is that the grant of 1802 is not produced because it cannot be found. Certain accounts of 1802 are reported as actually lost in Ex.5-A. Once it is found that these inams were granted before the settlement of 1802 it becomes extremely probable that they were excluded from the zamindari as explained by Ramesam, J., in Kuppu Reddi Nookayya v. Bhemanna A.I.R. 1923 Mad. 451. Having regard to the terms of Regns. 25 and 36 of 1802 it was clearly the intention of Government that inams for the performance of public services should be excluded from the assets of the estates then settled. In the present case it is not an unfair assumption that this intention was carried out when the Circuit Committee's account Ex 11 is found to have entered the service inams with quit rents estimated in grain below and apart from the main assets of the estate which are estimated in cash. The only exception is an entry among the assets of peon's inams, but then an inam for private service to the zemindar is not the same as an inam for public service. We, therefore, see no reason to differ from the concurrent findings of the lower Courts that these inams were excluded from the assets of the estate.

4. But even assuming that these were pre-settlement inams, excluded from the estate at the time of settlement, Mr. Lakshmanna argues that the zamindar would still have the right of enfranchisement by virtue of Section 17, Madras Act 2 of 1894. This section gives power to Government to enfranchise lands granted or continued in respect of village office by the State. It was once questioned: Secy. of State v. Bhanamurthy [1913] 24 M.L.J. 538, whether an inam could be said to be continued if Government merely (excluded such inams from the permanently settled estate, but continued the office-holders in possession of their right. But this has been set at rest by the observations in Pitchayya v. Secy. of State [1920] 11 M.L.W. 186 with which we agree.

5. It is rather upon the second proviso to Section 17 that Mr Lakshmanna relies:

and provided further that any lands which may have been granted by the proprietor for the remuneration of village service and which are still so held, may be resumed by the grantor or his representatives.

6. It is argued upon this that the section should read : the Government may enfranchise lands not actually granted by the State, but continued by the State, provided that if the grant was made by the proprietor or his predecessor, then the proprietor has the right and not the Government. But such a reading goes far to reduce the main clause to nonsense, because grants not made but only continued by Government are presumably in the majority of cases grants made by the zamindar, and the section would run that Government if it continued such grants may enfranchise them, but the right to resume them rests with the proprietor.

7. The difficulty lies in assuming that proprietor' in the proviso refers to proprietor or his predecessor instead of being strictly confined to registered proprietor as defined in Section 4 of the Act. If after the permanent settlement the registered proprietor had added to the emoluments by a grant out of his estate, the right of resumption of land so granted rests with him; but if the grant is one continued by Government at the time of the permanent settlement no matter by whom the grant was originally made the right of enfranchisement rests with Government The appeals, therefore, fail upon all grounds and are dismissed with costs.

Reilly, J.

8. I may add that of the 5 suits in this group 3 are on the statements in the plaints clearly time barred, and we have heard arguments only in the other two, viz., O.S. No. 384 of and 385 of 1922, which are concerned with a karnam inam and a talayari inam respectively in Guddigudam village Both the Subordinate Judge and the District Munsif have found that O.S. Nos. 384 and 385 of 1922 are time barred; but we have not heard arguments in full on that question.

9. Mr. Lakshmanna for the plaintiff has admitted that there is evidence to support the finding of the Subordinate Judge that the inams concerned in O.S. No. 384 and 385 of 1922 were granted before the permanent settlement of 1802 and that he cannot successfully attack that finding in second appeal. The next step in the Government's case is that these inams were excluded from the assets of the zamindari at that settlement. Ex. 11 shows that, when the Circuit Committee calculated the assets of the zamindari before that settlement, they excluded from the assets of the village certain dumbala inams, and it is at least very probable that these inams, with which we are concerned and which it is admitted were free of all revenue or quit rent, were included in those dumbala inams. And the very nature of the inams makes it highly probable that they were excluded from the assets of the. zamindari at the settlement; as the inams were for public service and the zamindar was deriving no revenue from them it would have been obviously inequitable to include them in the assets of which the peishcush to be paid by him was calculated. The principles of the settlement as laid down in Madras Regn. 25 of 1802 lead to the same conclusion. Under section 4 of that regulation all lakhiraj land which is defined as land exempt from the payment of public revenue was to be excluded from the settlement. I agree with the opinion expressed by Ramesam, J., in Koppi Reddi Nokayya v. Bheemanna, that village service inams were included in lakhiraj land in Regn. 25 of 1802. That opinion was expressed obiter as that particular case was not concerned with a village service inam but with a non-service inam free of all kattubadi or quit rent. But the other learned Judge who heard that case, Oldfield, J. appears to have agreed with Ramesam J's interpretation of section 4, regn 25 of 1802. And the same view, not as obiter dictum, but as a necessary step towards their decision was adopted by Seshagiri, Ayyar, and Moore, JJ. in Pitcahayya v. Secy. of State. In a recent case, Appeal No. 355 of 1922 Wallace, J. did not feel himself bound by that decision but did not find it necessary for the purpose of the case to come to any definite conclusion on the question. Thiruvenkatachariar, J. in the same appeal indicated dissent from the decision in Pitchayya v. Secy. of State but that dissent was really obiter dictum as in the end he rested his decision, as did Wallace, J. on the answer to another question. I respectfully agree with the opinion of Ramesam, J., that village service inams were included in the lakhiraj lands mentioned in section 4 of regn. 25 of 1802, and if I did not, I should not feel myself at liberty to dissent from 11 Law Weekly 186 without referring the question to a Full Bench. I find that the inams with which we are concerned were excluded from the assets of the zamindari at the settlement of 1802.

10. Mr. Lakshmanna has contended that even if the inams were excluded from the assets of the zamindari as calculated for the purpose of the settlement, a proprietary interest in them remained with the zamindar. This contention he bases on the interpretation put on Sections 37 and 41, Bengal Regn. 8 of 1793 by their Lordships of the Privy Council in Ranjit Singh v. Kali Dasi A.I.R. 1917 P.C. 8 and he points out that the Madras Regn. 25 of 1802 was admittedly based on that Bengal Regulation. But in Bengal Regn. 8 of 1793 village service inams, being included in chakaran land held by public officers in lieu of wages, are explicitly excluded from the lakhiraj lands, which are to be left outside the settlement. If a comparison with the Bengal Regulation is of any use to us, the fact that village service inams are not excluded in the Madras Regulation from the lakhiraj lands mentioned in its Section 4 appears to me in the circumstances most significant, and the interpretation of the Bengal Regulation in Ranjit Singh Bahadur v. Kali Dasi Debi A.I.R. 1917 P.C. 8 provides us with no ground for supposing that any proprietary interest was left with the zamindar in these village service inams in the Madras Presidency in spite of their exclusion from the assets of the zamindari. On the contrary a comparison of the two Regulations not only reinforces the conclusion that in the Madras Presidency these village service inams were included in lakhiraj lands and so excluded from the assets of the zamindari for the calculation of peishcush but points to the conclusion that they were altogether excluded from the zamindari itself.

11. If these inams were excluded from the zamindari itself, then they were entirely at the disposal of the Government and we need hardly consider the provisions of Act 2 of 1894 in connexion with them. But the learned Advocate-General has not asked us to go so far as that in these cases. It is enough for his present purpose if these inams were "continued" by the Government within the meaning of Section 17 of Act 2 of 1894. When we find, as we have found, that these inams were granted before the settlement, that they were excluded from the assets of the zamindari in the calculation of peishcush at the settlement and that they remained free from all claim from the Government to assessment until they were enfranchised under act 2 of 1894, surely we can say that they were "continued" by the Government within the meaning section 17 of that act. That is the sense in which "continuing" such an inam is understood in Pitchayya v. Secy. of State and I may add that that is in my opinion the sense in which the expression "continuing" lakhiraj is used in Section 4 Madras Regn. 25 of 1802, an expression which can hardly have been absent from the minds of those who framed Section 17, Act 2 of 1894. I agree therefore that the Government was entitled to enfranchise these inams under that section.

12. Mr. Lakshmanna's final contention is that, even if these inams were granted before the settlement, were excluded from the assets of the zamindari at the settlement and were "continued" by the Government within the meaning of Section 17, Act 2 of 189i, nevertheless, if they were originally granted by the zamindar or one of his predecessors, the second proviso to that section gives the zamindar the right to resume them and shows that the Government has no right to enfranchise them. There are two effective answers to that contention in the present cases. Firstly, if the plaintiff wishes to bring herself within that proviso, she must show that she or some predecessor of hers granted these inams and that she has not done nor seriously, attempted to do. Secondly, "proprietor" in the proviso means proprietor as defined in the Act, and according to the definition it means in relation to a zamindari such as that with which we are concerned a person registered as proprietor after the permanent settlement. The proviso therefore relates only to lands or emoluments granted for the remuneration of village service after the settlement and has nothing to do with inams such as we are dealing with in these cases. I agree that these appeals must be dismissed with costs.