JUDGMENT

1. We think the Subordinate Judge in this case was right. The first question relates to the nature of the interest at present enjoyed by the defendants. By a deed dated 1st June 1808, the predecessor of the present plaintiff granted a mokhassa patta to three individuals of three villages without reserving any rent. There is no doubt, and it has been so held in some cases in this Court, that such tenures were formerly believed to be resumable on the death of the grantor. On the death of the grantor in this case, when the estate came under the management of the Collector as manager in 1845, these villages were resumed. That is to say the villages were attached or kept under zuft and the profits of the villages were enjoyed apparently by the zamindar for some years. Then, in the year 1853, a petition was put in, Ex. B, stating that the villager had been granted on service tenure to the ancestors of the petitioners and that the zamindar had been pleased to release them from attachment “to be enjoyed by us nine sons of the aforesaid Vijiagopalarazu (one of the grantees). I agreed to pay a kattubadi of Rs. 300 a year newly fixed.” Then Ex. C is an order of the zamindar giving effect to this arrangement and Ex. D is a further order addressed to the office Amin and it says: “Inasmuch as the said villages were not formerly charged with kattubadi and as Seetharamarazu, one of the sons of Vijiagopalarazu (that is to say, one of the original grantees), presented a sanad stating that the nine sons of the late Kakarlapudi Vijiagopalarazu would pay the kattubadi of Rs. 300 every year from the current fasli year 1263 and enjoy the same as before, and act in obedience to the orders of the sircar, the said three villages should be released from attachment and given to the nine persons of the family to be enjoyed by all the members of the said family.” Now the three villages have been enjoyed for the past 60 years subject to the payment of this kattubadi without any question being raised about it and we must take it, that the tenure on which they held is that they should hold the land subject to an annual payment of this kattubadi of Rs. 300 and that in effect there was a re-grant of the three villages in 1853.

2. Those are the terms of the tenure with which we have to deal.

3. Subsequently some years ago the zamindar sought to resume the villages and instituted a suit for that purpose, which was dismissed. He is now seeking to take advantage of Act 1 of 1876 for the purpose of getting these three villages separately registered in the names of the descendants of the grantees and having a proportionate peishcush or Government revenue charged upon them, thus entirely altering the terms upon which they had been held for so many years by the grantees, which terms are, that they should enjoy the villages on a payment of Rs. 300 kattubadi annually, leaving the zamindar to pay the proportionate peishcush which, as the mere fact of the institution of this suit shows, is probably a considerably larger sum. Now there are it is not denied, very numerous other villages in the Northern Sircars and possibly elsewhere which are held on similar tenure and in which a similar operation might be attempted if the law allowed it. Therefore the question is on of considerable general importance as to whether grantees holding on perpetual grants subject to the payment of a small rent under the name of jodi, kattubadi or poruppu, are liable to have their lands separately registered under this Act and separate assessment imposed upon them.

4. Now the history of the question is this Regn. 25 of 1802 provided that proprietors of land should be at liberty to transfer without the consent of Government, that such transfers should be valid, but that “unless such sale, gift or transfer should have been regularly registered at the office of the Collector and unless the public assessment shall have been previously determined and fixed on such separated portions of land by the Collector, such sale, gift or transfer shall be of no legal force or effect, nor shall such transaction exempt a zamindar from the payment of any part of the public land revenue assessed on the entire zimindari previously to such transfer, but the whole zamindari shall continue to be answerable for the total land tax, in the same manner as if no such transaction had occurred.” Notwithstanding the generality of the language of the later part of this section, it has been held by the Privy Council in the Ettiapuram case of Venkalaswara Yettiapah Naicker v. Alagoo Mootoo Servagaren(1) and elsewhere that this section does not affect the validity of transfers as between the parties, but only saves the rights of Government. The regulation also provided for the manner in which the proportionate assessment was to be fixed and in Regn. 26, there was a provision as to the separate registration of portions of settled estates which had been alienated in a Court sale; so far as I know there was no specific legislative provision as to how separate registration was to be enforced in other cases though no doubt, the right to such separate registration was recognized in certain cases. In that state of things Act 1 of 1876 was passed. It is described as: “An Act to make better provision for the separate assessment of alienated portions of permanently settled estates,” and it says: “whereas it is desirable to make better provision for the separate assessment to land revenue of portions of permanently settled estates alienated by sale or otherwise. It is hereby enacted as follow:

“1. The alienor or alienee of any portion of a permanently settled estate, or the representative of any such alienor or alienee, may apply to the Collector of the District in which such portion is situate for its registration in the name of the alienee and for its separate assessment in respect of land revenue.

“2. The Collector shall thereupon hold an inquiry as to who is the present owner of the property in respect of which the application is made.” So that what the Collector has to do is to find out who is the present owner; and the intention of legislature is that it should be only where there has been a change of ownership that separate registration and assessment should take place. Now the question is whether there can be said to have been a change of ownership by virtue of this grant of these three villages to the grantees subject to a reserved payment of kattubadi or favourable rent of Rs. 300. Assuming that the grant was a permanent one, and was not liable to resumption, we do not think that it can stand on any higher footing than a permanent lease. It is a grant subject to a reservation of annual money payment or rent, and therefore it seems to us to be of the character of a permanent lease. Now there is no authority for saying that a permanent lease is included in the meaning of the term “owner” and if it had been intended to include such a person within the term “owner” we think there would have been a definition clause including him. Numerous authorities may be cited in support of this view.

5. It was expressly held by the Privy Council that a permanent lease by a zamindar is not a transfer of his proprietary right within the meaning of S. 8, Regn. 25 of 1802 in the case of Vencataswara Yettiapah Naiker v. Alagoo Moottoo Servagetren, where their Lordships observed: “This is not an alienation of the zamindari or any part of it. It is a perpetual lease of a distinct portion of the zaminderi, which constituted a distinct portion before the appellant's title to the zamindari accrued, and such an estate could not, without great violence to the language, be considered as a transfer within the words of the Regulation.” The reference is to S. 8, Regn. 25 of 1802 which deals with the transfer by proprietors of their proprietary right and is therefore express authority for the proposition that a perpetual lease is not a transfer of proprietary right or ownership and does not constitute the lessee the proprietor or owner within the meaning of Regn. 25 of 1802. As already pointed out Act 1 of 1876 is supplementary to Regn. 25 of 1802 which must be read with reference to it. The same view has been taken in Kshetrabaro Bissoyi v. Sobhanapuram Hari Krishna Naidu(2) with regard to the language of Act 3 of 1895, S. 5. There the learned Judges say: “The question then remains whether the grant of a permanent lease is a transfer of ownership,” and following the ruling of the Privy Council which we have just referred to, the learned Judges held that a permanent lease is not a transfer of the proprietary right or ownership. We may refer also to two recent decisions of the Privy Council, one in Kumar Hari Narain Singh v. Striram Ghakravarti(3) and another, Durga Prashad Singh v. Brajo Nath Bose(4), in which it has been held that psrmanent grant at a favourable rent of the nature of the kattubadi reserved in this case, was not a transfer of ownership so as to deprive the grantor of his mining rights in the land which are incidental to his character as owner and in the first case Hari Narain Singh v. Striram Chakravarty, his right is distinctly based upon his possessing the character of owner. The Subordinate Judge has quoted various authorities to the same effect in his judgment: Markby in his Elements of Law (Edn. 5) observes:

“However numerous and extensive may be the detached rights, however insignificant may be the residue, it is the holder of this residue of right whom we always consider as the owner.” This is, of course from the legal point of view; from the economic point of view a permanent lease or a condition of fixity of tenure may, no doubt, be spoken of as a condition of divided ownership, but we are merely considering the accepted meaning, of the word owner in the language of the law.

6. The decision of the Privy Council in Fischer's case, Robert Fischer v. Seay, of State(5), does not affect the present case, because there what was contemplated from the first was an out and out gift of the village to Mr. Fischer to be separately registered, and, according to the construction put upon the various documents, their Lordships came to the conclusion that the pesihcush or poruppu, as it was called in different documents, was only intended to be a temporary payment to the zamindari pending the separate registration and assessment which was contemplated from the very first. With regard to the case in Kamalammal v. Raju Naiker(6), and the observation there cited, we may point out that was a case of gift, and obviously, where there is a case of gift, that is, a case of out and out alienation, the donee becomes the owner. But those cases are quite different from the present case which is, in our opinion, merely that of a permanent lease at a favourable rent. We think that it would be giving an extension which was never intended and which would be of very dangerous consequence to Act 1 of 1876 if we were to hold that the creation of a perpetual lease at a favourable rent rendered the lessee the owner so as to subject him to the liability of having the land included in the lease separately registered and separately assessed. I may also add that a decision to the same effect has already been given by this Court by Miller, J., and Munro, J., in an unreported case, Appeal 141 of 1905.

7. In the result the appeal fails and is dismissed with costs. No order as to costs of the Secretary of State.

S.N/R.K

8. Appeal dismissed.