The Secretary of State for India in Council vs Hosangadi Shitaramappa and Others

The question in this case is whether the rights of a mulgenidar escheat to the Government on the death of the last owner dying without issue or

whether it reverts back to the mulgar from whom the mulgeni was acquired. This question is not uncovered by any direct authority. If a mulgeni

tenure is of the same character as a permanent lease, on the authority of the Judicial Committee in Sonet Koer v. Himmut Bahadur ILR (1876) C.

391 the right would escheat to the Government and would not revert to the landlord. Therefore the question is what are the characteristics of a

mulgeni tenure. In the Fifth Report Vol. II page 78 it is pointed out that on the death of the mulgenidar the right would revert to the mulgar just as

the Mulgar''s property would escheat to the Government in case he dies issueless. Similar observations are to be found in the Report of the

Collector in the same report at page 481. The learned Government Pleader suggested that this is not a statement of fact but an inferernce from

ideas relating to the feudal tenure. We are unable to agree with this contention. The Fifth Report was a collection of facts and statements laid

before the House of Commons and there is no reason to suppose that the Collector and the other officers were influenced by feudal notions in

making the above statements. In the minutes of Sir Thomas Munro at pages 71 and 79 a similar statement occurs. In Timmarsa Puranik v. Badiya

(1865) 2 Bom. H.C.R. 66 an extract is made from the Report of Mr. Chamier speaking on behalf of the Board of Revenue which also shows that

the tenure would revert to the mulgar. Then there is an observation by Mr. Justice Benson in Vidyapurana Thirthaswami v. Ugganu ILR (1910) M.

231 wherein the learned Judge accepts the view contained in the earlier reports. That was a case in which the question was whether a mulgar or

mulgenidar should pay the increased assessment levied by the Government. After the decision of the Full Bench, the Government of Madras

collected opinions on the advisability of legislating on the question of increased assessment. In their final order which is G.O. No. 2154, dated 18th

July 1912, the Government say with reference to mulgeni leases : ""As long as the rent is paid, the tenant cannot be evicted and even when it is

unpaid the landlord on evicting the tenant is liable for improvements which the tenant has made. On failure of heirs the tenant''s interest ordinarily

lapses to the landlord. "" Thus we have the opinion of a Collector, of the Board of Revenue, of that experienced administrator Sir Thomas Munro,

of the Government and of the High Court in favour of the contention that an essential incident of mulgeni tenure is that on failure of heirs it lapses to

the mulgar. In these circumstances the decision in Sonet Koer v. Himmut Bahadur ILR (1876) C. 391 is not applicable to the present case. As

pointed out by Mr. Sitarama Row that the view taken by Sir Charles Sergant in Venkataraya Bin Ramkrishnappa v. Shivram Bhat ILR (1883) B.

256 and Tamaya v. Timapa Ganapaya ILR (1881) B 262 is also in favour of this view. It is true in those cases there was a condition restraining

alienation. But it was held that such conditions were not void. If it were a permanent heritable tenure to which the landlord has no manner of right

such a condition would be void under the general law as well as u/s 10 of the Transfer of Property Act. The fact that that condition was held not

repugnant to the grant is another ground for holding that a mulgeni tenure should not be regarded as of the same character as a permanent lease. In

Parameshri v. Vittappa Shanbaga ILR (1902) M 157 the view taken in 7 Bom. was accepted by Justice Bhashyam Aiyangar. Nil Madhab Sikdar

v. Narat-tam Sikhdar ILR (1890) C. 826 and Ram Dihal Rai v. The Maharaja of Vizianagaram ILR (1908) A 488 relied on by the Government

Pleader do not take the case further than Sonet Koer v. Himmut Bahadur ILR (1876) C. 391. For these reasons we are of opinion that the

decision of the District Judge is right and that this appeal should be dismissed with costs to be paid in 3 months.