Oldiield, J.
1. The respondent plaintiff an inamdar, holds from second defendant, a zimindar, under the sannad, Exhibit A, and has assigned an interest in his holding, to first defendant the ' appellant under Exhibit V. In 1912 the Revenue Officer engaged in the preparation of a Record of Rights for second defendant's estate under Chapter XI, the Madras Estatesl>nd Act (I of 1908),, entered first defendant as occupancy raiyatin respect of the holding instead of plaintiff. The question is whether he did so correctly. The answer to this question depends on (1) whether Exhibit V is a mortgage with possession or a lease, (2) whether in the latter alternative first defendant is a raiyat, as the term is defined in Section 3, Clause (15), Estates Land Act, and (3) whether the in am is pre-settlement and, therefore, an estate and plaintiff a landholder under Section 3, Clauses (2) and (5).
2. Exhibit V dated. 20th, January 1913 is described as a thirumanam document and provides that in accordance with a prior agreement, Exhibit U, the property, which had been placed in first defendant's possession in 1910-11, should' remain in it until the end of the year 1917-18 in consideration of a cash payment, of Rs. 160 at the date of Exhibit H and other subsequent payments on plaintiff's behalf,, in all, Rs. 1,280, that first' defendant should pay all dues other than extra taxes, which might be levied hereafter, and should at the end of the term surrender without any separate relinquishment. These, the essential provisions of Exhibit V, are prima facie in accordance with the definition of a lease in Section 105 of the Transfer of Property Act, the payment referred to being the price paid or premium. Plaintiff, however, argues that those payments must not be so regarded because they were advances, for which either the property, the possession of which was transferred or the right to that possession was the security and that is alleged with reference to the description of the document and the suggestion that advances prior to its execution were in question.
3. This argument is unsustainable. For, although etymological'! y a thirumdnam document may mean one executed in discharge the term thirumanam, as my learned brother with his extensive knowledge of the Telugu District agrees, has acquired a wider meaning, as importing merely a settlement, and, it may be observed, although No. details are in evidence, that, as Exhibit H shows, the previous enjoyment of the property was under a document similarly described. There is no evidence of any advances prior to those enumerated in Exhibit V, and it was never alleged in the lower Courts that there were any. Those in' Exhibit V, and the cash payment of Rs. 160 were made after and when the agreement, Exhibit H, was executed and the former after possession had been given; and they cannot be regarded as prior debts, which the transfer was intended to secure, There is no power of sale and no provision for accounting. Transfers such as this, for a premium without a periodical rent, are no doubt unusual in this Presidency. But under the description of zarpeshgi transactions, they appear to be well-known in North India and are probably what the portions of the Transfer of Property Act definition relating to price paid and to premium, were meant to apply to. That the distinction between transaction of that kind which are leases and those which are mortgages will be difficult, is illustrated by the statement in Macpherson's Law of Mortgages, 5th Edition, p 8, adopted in the judgment in Basant Lal v. Tapeshri Rai 3 A 1 : 1 Ind. Dec. (N.S.) 956 that the mortgage character is established, only when there is a power of redemption reserved to the lessor either expressly or impliedly, so that it distinctly appears that the parties themselves intended the transaction to be of the nature of a mortgage. Plaintiff relies on the fact that, although no such power was reserved in the documents in Bengal Indigo Company v. Roghobur Das 24 C. 272 : 1 C.W.N. 83 : 23 I.A. 158 the transfers there were regarded by the Privy Council as being ' not mere contracts for the cultivation of the land let; but intended also to constitute and as having constituted a real and valid security to the tenant for the principal sums which he had advanced and the interest thereon. The tenants' possession under those transfers was, in part at least, not that of cultivators only, but that of creditors operating re-payment of the debt due to them by means of their security.' But the documents there construed contained what Exhibit V here does not, stipulations for interest on the principal sums paid by the transferees, consistently with those sums being loans there was the judgment, of the High Court shows, 'provision about the satisfaction of the money-debt,' and in fact, whatever the exact intention, with which these references: to security were made the conclusion against the transferees was not based on the mortgage character of their transfers, but on one section of the Bengal Tenancy Act independently of it. In a later case, Nidha Sah v. Murli Dhar 25 A. 115 : - 30 I.A. 54 : 5 Bom. L.R. 111 in which, although the document was described as a mortgpge and was given for prior advances its provisions resembled those of Exhibit V more closely, the Privy Council held that there was no mortgage, but 'simply a grant, of land for a fixed term free of rent in consideration of a sum made up of past and present advances.' In accordance with this decision and with Section 105 of the Transfer of property Act the application of which there is here nothing td conclude, the finding must be that Exhibit V is a lease.
4. The question is next whether- first defendant is a raiyat, within the meaning of Section 3(15), Estates Ivand Act, and as the contention that he holds as mortgagee, not for the purpose of agriculture, has been disallowed, we have to decide first whether the payments in consideiation of which Exhibit V was given, were 'rent' within the meaning of Section 3(11) - The objection taken to their being so is that these pro' visions refer to the rent as 'payable' and to raiyat as holding 'on condition of paying' the implication being, it is alleged, that the only payments contemplated are those to be made in future after the beginning of and in the course of the relation between raiyat and landholder. No authority has been adduced, in support of this construction and it is neither reasonable nor convenient. For it entails,- even in the ordinary cases in which rent is payable periodically, that, if it has been paid on the due date, nothing more being payable for the remainder of the year, the relation of raiyat. and landholder will be suspended until more rent falls due. The preferable construction and that by which such anamoly can be avoided, is that 'payable' means payable according to the terms of the contract between the parties to it', and that Section 3,Clauses (11) and (15), are applicable, whatever the: stage or stages at which those term, so far as they relate to payment for, the use of the land, have to be or have been fulfilled.
5. The remaining matter in dispute in connection with' the application ,of. Section 3(15) is whether plaintiff's inam is an estate within the meaning of Section 3(2) and plaintiff is a landholder under Section 3(5) of the Estates Land Act. This, it is not disputed in this Court, depends on whether, the inam was created before or after the Permanent Settlement in 1802.
6. The grant, as Exhibits A and B show, was in 1800; and as I agree with my learned brother's treatment of this, part of the case, I need say only that no other year is suggested as that, in which the grant was really made, and that, in the absence of any such special consideration as those arising from the terms of the grant or zemindar's Sannad in Secretary of State v. Rajah of Venkatagiri 73 Ind. Cas. 741 : 41 M.L.J. 624 : (1922) M.W.N. 1 , there is no reason for refusing effect to Section 4, Regulation XXV of 1802, and in view of its unqualified terms no relevancy in the enquiry whether the inam was in fact included in the assets of the zemindari, on which the peshkush was fixed with regard to the Circuit Committee's accounts prepared before 1786.
7. As the inam is not an estate and first defendant is, therefore, not a raiyat, the second appeal fails and is dismissed with costs On that ground.
Ramesam, J.
8. The respondent-plaintiff, an inamdar within the ambit of the Pittapur estate, sues for declaration that the first defendant is not an occupancy tenant of his inam. The zemindari of Pittapur was constituted a zemindari by a sannad issued in 1802 under the Regulation XXV of 1802 see Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards 1 Bom. L.R 277 : 3 C.W.N. 415 . The grant of the suit inam to the plaintiff's ancestors was made by the then zemindar of Pittapur under a sannad (Exhibit A) and a ohekunama (Exhibit B) dated the 22nd June 1800. It was made free of kattubadi and, therefore, purported to be sarva dumbala or absolute.
9. The first question that arises for decision is whether the Estates Land Act applies to the inam. If the inam is a part of the Pittapur estate, the Act applies to the inam, Brahmayya v. Achiraju 70 Ind. Cas. 615 : 45 M. 716 , apart from the question whether the first defendant is a raiyat. The Courts below are of the opinion that the land was part of the Pittapur estate and on the question whether the first defendant is a raiyat they differed.
10. On the facts found, I am of opinion that the land is not a part of the Pittapur estate, but a pre-settlement inam excluded from the assets of that zemindari. The question turns upon Section 4 of Regulation XXV of 1802. That section excludes from the scope of the Permanent Settlement lakhiraj land (or lands exempt from the payment of public revenue) and all other lands paying only favourable quit rents. In respect of these, the Government reserved to itself the entire exercise of discretion in continuing or abolishing them. Mr. A. Krishnaswami Aiyar, who appeared for the appellant, conceded that wnat was meant by the words in Section 4 above quoted is lands in respect of which the zemindars purported to make grants either absolute or subject to a small kattubadi, though later on, he addressed arguments somewhat inconsistent with this concession and contended that where a grant, though purporting to be absolute, was not binding on the Government, the land was not excluded from the assets of the zemindar.
11. If a grant, whether absolute or subject to a small kattubadi, was made under circumstances binding on the Government, there was an end of the matter and there was no meaning in the Government reserving to itself the entire exercise of discretion in continuing or abolishing it. It was because almost all such grants were not binding on Government that they reserved to themselves the exercise of discretion in continuing or abolishing them. This is clear from the preamble to Regulation XXXI of 1802 which was relied on by the appellant but which, on close examination, is really against him. The preamble to Regulation shows that it was meant to deal with lands alienated by the unauthorised encroachments or the present possessors by the clande stine collusion of local officers, or by other fraudulent means. 'The preamble then proceeds to say' whereas the Permanent Settlement of land tax has been made exclusive of alienated lands of every description.' There can be no better statement of the objects and reasons of the Regulation XXV than this, by the Legislature which enacted both the Regulations in the same year. Remembering that lands granted on the condition of paying lent or heavy kattubadi cannot be regarded as alienated at all, it is clear that all alienated lands were intended to be excluded from the scope of the Settlement. Such lands would consist of (i) lands granted on condition of rendering public service hereditary village service inams; (2) saravadumbala in ants (3) inams granted on favourable quit rent.
12. The first class was dealt with by Regulations XXIX of 1802 and VI of 1831 and now by Madras Acts II of 1894 and III of 1895. A portion of the second class was recognised by Regulations XXXI of 1802, i.e., those granted prior to 1768; but their enfranchisement was effected in the Inam Settlement of i860. The rest of the lands in the second class as well as those in the third class were both recognised and enfranchised in the Inam Settlement of i860. It is because these were all excluded from the scope of the Settlement that hamams were required to keep lists of them with the purposes for which they were granted, vide section II of Regulation XXIX of 1802 the second clause of it dealing with the first class above mentioned, the third clause dealing with the second class above mentioned and the eighth and tenth clauses dealing with the third class above mentioned among others. The decision in Suryanarayana v. Patanna 48 lad. Cas. 689 : 41 M. 1012 , did no lay down that only inams prior to 1768 could be recognised as inams and that all inams granted after 1768 though before 1802 should be regarded as included in the assests of a zemindari. The Judicial Committee referred to Regu-, lation XXXI of 1802 merely for the purpose of narrating the fact which finally led to the preparation of Oakes' Register in which the subject of the grant was described and their lordships held that grant of the village meant grant of the soil in addition to the revenue. This is also clear from Secretary of State v. Raja of Venkatagiri 73 Ind. Cas. 741 where their lordships described Regulation XXXI of 1802 as one referring entirely to procedure. The main argument of the appellant that, as the accounts on which the peishcush was fixed were those of the Circuit Committee appointed in 1784, all grants after that date were intended not to be recognised shows the fallacy of the argument based on the Regulation XXXI of 1802, for if the latter argument is correct what becomes of lands granted between 1768 and 1784?
13. As to the use of the Circuit Committee accounts, they were the accounts nearest in date, available to the State for the purpose of Settlement. If the lands alienated, when the accounts of the Circuit Committee were prepared, were intended to be excluded from the Settlement, the Regulation would have expressly provided for it. Both the Regulation and the sannads issued under it, as they stand , speak from their dates (1802) and all grants prior to 1802 were prima facie excluded from the Permanent Settlement.
14. Some reference was made by the appellant to Venkatarangayya Appa Row v. Poranki Appalarazu 8 Ind. Cas. 546 : 20 M.L.J. 728 : 8 M.L.T. 429. That case related to an inam granted on condition of rendering private service to the Nuzvid zemindar. The lands in the Nuzvid zemindari held on condition of rendering private service to the zemindar wete all dealt with by Mr. Teylor at the Inam Commission and held to be included in the assets of the zemindari. See Sri Rajah Sobhanadri Appa Rao Bahadur v. Sri Rajah Venkatanarasimha Appa Rao Bahadur 26 M. 403 at pp. 404, 409. It is true that the statement that they were resumable was not acted upon by the Courts Sri Rajah Sobhanadri Appa Rao v. Sri Rajah Venkatanarasimha Appa Rao Bahadur 26 M. 403 at pp. 404, 409 affiimed by Venkata Narasimha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur 29 M. 52 : 8 Bom. L.R. 1 : but, whether resumable or irresumable that they were inchtded in the assets of the zemindari follows from dictum of Sir Barnes Peacock it: Rajah Nilmoney Singh v. The Government 6 W.R. 121 approved in Nilamoni Singh v. Bakranath Singh 9 I.A. 104 : 9 C. 187 . It is on these principles that the decision in Venkatarangayya Appa Row v. Poranki Appalarazu 8 Ind. Cas. 546 : 20 M.L.J. 728 rests. Obviously, the land was not lakhraj. I am not able to agree with the other reason given in it for holding that the land was not lakhraj. The case in Secretary of State for India v. Kirtibas Bhupati Harichandan Mahapatra 26 Ind. Cas. 676 : 19 C.W.N. 65 merely lays down a presumption regarding land within the ambit of zemindari and does not help the appellant where the facts are definitely known and rebut the presumption.
15. he land was excluded from the assets of the zemindari, it cannot fall under Section 3(2)(d) as it is a not whole village. It cannot be contended that, apart from the Estates Land Act, the defendant has any occupancy rights. Starting with the position that there is no presumption in favour of the inamdar [Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Keddi 63 Ind. Cas. 538 : 45 M. 586 : 16 L.W. 102 or against him Suryanarayana v. Patanna 48 lad. Cas. 689 : 41 M. 1012 : 25 M.L.T. 30 ] it is impossible that the defendant in this case who was let into the land under Exhibit V on condition that he would give up the lanl at the end of the term [See Suryanarayana v. Patanna 48 lad. Cas. 689 : 23 C.W.N. 273 ] can have the occupancy rights whatever the original grant might be. When the last tenant surrendered the land in 1908, the land came to the possession of the plaintiff who had both varams at his disposal and then, the defendant entered on condition of giving up the land at the end of nine years which is a very important condition in all cases not governed by the Estates Land Act [Suryanarayana v. Patanna 41 M. 1012 : 25 M.L.T. 30 and Upadrashta Venkata Sastrulu v. Divi Seetharamudu 51 Ind. Cas 304 . The case in Chidambara Sivaprakasa Pandarsannadhigal v. Veerama Reddi 63 Ind. Cas. 538 : 16 L.W. 102 : 31 M.L.T. 54 was a case where the tenants have been holding the land continuously for over 75 years at unvarying rents, were mortgaging and selling their holdings, and partitioning them among themselves and where there were no muchilikas by tenants stipulating that the land should be surrendered at the end of a particular term, the only muchilikas purporting to contain such terms being found to be forgeries and the tenants obtained compensation from Government when the holdings were acquired.
16. I, therefore, hold that the plaintiff is entitled to the declaration prayed for. In this view it is unnecessary to discuss the other questions arising in the case.
17. But I may add that I agree with my learned brother's construction of Exhibit V. In my opinion, Exhibit V evidences a loan and a lease. In the sense that a simple method of recovering the loan was also provided by it. It may be said that Exhibit V also furnishes same security to the creditor (lessee). But there is no security either in the sense that Exhibit V amounts to a simple mortgage on which a suit for sale can be maintained or in the sense that Exhibit V amounts to a usufructuary mortgage. Any how, there was certainly a lease. Probably their Lordships were using the word 'security' in this sense in Bengal Indigo Company v. Raghobur Das 24 C. 272 : 1 C.W.N. 83 the decision in which ultimately turned on a special definition of raiyat in Bengal Tenancy Act.
18. I agree that the second appeal should be dismissed with cost.