Judgement

Appeal (No. 114 of 1919) from a judgment and decree of the High Court (February 17, 1918) reversing a decree of the Temporary Subordinate Judge of Cocanada.

The respondent, since deceased, sued the appellant, his brother, to recover possession of a one-half share of lands by partition between them. The lands had been held as karnam service lands until enfranchised in 1906. It was admitted that there had been a partition between the brothers before the date of the enfranchisement.

The facts are stated in the judgment of their Lordships. It appeared from a report of the Deputy Collector made in connection with the proceedings in 1902 in the Revenue Court that while Subbarayudu was karnam his brothers widow, the plaintiff, and the defendants enjoyed specified parts of the lands under an arrangement to that effect.

The only issue material to this report was “whether the enfranchisement in the name of the defendants father enured for the benefit of the family or to himself exclusively."

The Temporary Subordinate Judge made a decree dismissing the suit. He held upon the authority of Karri Ramayya v. Villoori Jagannadhan (( 1915) I. L. R. 39 M. 930.) that upon enfranchisement karnam service lands devolved upon the enfranchisee and his joint family, but that since there had been a partition the lands in suit enured exclusively to the benefit of the defendant.

The High Court reversed the decision and declared that the plaintiff was entitled to a one-half share. The learned judges (Ayling and Seshagiri Ayyar JJ.) said that the question of the effect of the enfranchisement had not been argued before them having regard to the decision of the Court in appeal No. 79 of 1917 (unreported), and that the case relied on by the trial judge was not consistent with his decision.

1921. Feb. 22, 24. Dunne K.C. and Narasimham for the appellant. The lands in suit attached to the office of karnam, were resumable by Government, and upon enfranchisement enured to the exclusive benefit of the appellant under the inam title deed Srinivasayyar v. Lakshmamma (( 1883) I. L. R. 7

M. 206.) ; Bada v. Hussu Bhai (( 1883) I. L. R. 7 M. 236.) ; Venkata v. Rama (F. B.) (( 1884) I. L.

R. 8 M. 249 (F. B.)) ; Venkatarayadu v. Venkataramayya (( 1891) I. L. R. 15 M. 284.) ; Dharanipragada Durgamma v. Kadambari Virrazu (( 1897) I. L. R. 21 M. 47.) ; Subbaraya Mudali v. Kamu Chetti. (( 1899) I. L. R. 23 M. 47.) The decision of the Madras High Court in Narayana v. Chengalamma (( 1886) I. L. R. 10 M. 1.) related to an unsettled paleiyam, the lands being held upon a tenure essentially different from that of karnam service lands. The decision was erroneously applied to karnam service lands in Gunnaiyan v. Kamakchi Ayyar (( 1902) I. L. R. 26 M. 339.), which has since been approved by a Full Bench in Pingala Lakshmipathi v. Bommireddipalli Chalamayya (( 1907) I. L.

R. 30 M. 434 (F. B.).), and followed in Karri Ramayya v. Villoori Jagannadhan (( 1915) I. L. R. 39 M. 930.) and other cases. The last-named Full Bench decision is in conflict with the Full Bench decision of 1884, and opposed to the current of authority in Madras prior to 1902. The inam title deed makes it clear that the lands were confirmed to the defendants as separate property. But even if the Full Bench decision of 1907 was rightly decided the deceased respondent had no interest in the lands, since there was a partition between him and his brother, the appellant, before the enfranchisement. . It cannot be said that the service lands were left for subsequent division because they were in their nature impartible ; there was at that time a complete partition. This being the case the Madras decisions since 1892 above referred to are not applicable. Whatever permissive interest was allowed by Subbarayudu to the deceased respondent in the karnam lands cannot avail as against the appellant who was individually appointed in 1902. Further the appellant has been in adverse possession since 1902 under the decree of t