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TaxTMI 
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TaxTMI 
1955 (7) TMI 36
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....s above-mentioned, it would be convenient to narrate the proceedings that took place before the matter reached this Court. The Settlement Officer, No. III, Chittoor, initiated proceedings suo motu under Section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948), to determine whether this village of Ekkattu Thangal is or is not an estate within the meaning of that Act. Notices were duly served as required by the enactment and the present appellants who are ryots in the village appeared before him. One E.K. Govinda Reddi who was a mortgagee purchaser of the village also appeared before this officer and raised the contention that the village was not an estate. Evidence was let in and after considering this the officer held that the village was not an inam estate, the main ground of his decision being that the village was held under a lease granted by the Government in September, 1914 and that there was therefore no "grant in inam" of the village so as to fall within Section (3)(2)(d) of the Madras Estates Land Act. The ryots who had appeared before the Settlement Officer took the matter in appeal before the Estates. Abolition Tribunal, Madura....
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....onduct of the parties, which was wholly irrelevant and not from the terms of the document which was the only relevant consideration, the learned Judge held that there was an error apparent on the face of the record and quashed the order of the Tribunal. It is from this decision that the present appeal has been filed by the ryots. 4. Before dealing with the contentions raised on behalf of the appellants, we shall deal with a preliminary objection that has been raised by Mr. Bhashyam Aiyangar, learned Counsel for the first respondent. His argument was on these lines. The question now before the Court is whether the village is one which is "an inam estate" which can be abolished and taken over by Government under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. If the village were within the Act it is the Government that could take it over. The only persons, therefore, who could be aggrieved by a decision against the applicability of the Act to this village are the Government. They have not filed any appeal. In conceivable: cases the ryots might be interested in challenging the decision. But those would be where the determination of t....
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....e village is an "inam estate" or not is still the subject-matter of enquiry in this appeal and this is precisely the point which they sought to prove by the statement which they filed before the Settlement Officer. In the light of these provisions we fail to see how the reservation of their rights of occupancy has any bearing on the determination of the question whether the appellants are or are not aggrieved by the decision of the learned Judge. We have no hesitation in overruling the preliminary objection and in holding that the appeal is competent and has to be heard on the merits. 5. We shall first deal with the contention that the learned Judge was in error in holding the village not to be an inam estate. The history of the village so far as could be gathered from the records appears to have been shortly this. Ekkattu Thangal was granted by the Nawab of Carnatic to one Kasim Ali Beg, but the date of the grant is not known, nor its terms or purpose. We know, however, that the grant was subject to a condition against alienation. This condition appears to have been broken by the descendants of the grantee, who having become indebted to one Shamier Sultan first mortgage....
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....default by the lessee which resulted in the lease being again cancelled in October, 1933 and this order remained in force until application by the lessee after repairing the breach. The order cancelling the lease was withdrawn on 2nd March, 1936. These proceedings would appear to indicate that there was no grant in inam but a mere lease and that the lessee could not be deemed to be an inamdar within Section 3(2)(d) of the Estates Land Act. There were, however, certain proceedings between the lessee and his tenants in which it was held that the village was a grant in inam so as to render it an estate within Section 3(2)(d) of the Madras Estates Land Act. These proceedings, however, which were between the ryots cultivating lands in the village and the landholder are certainly not res judicata as between the lessee and the Government for the purpose of determining whether the lease-deed of 1914 constituted the village of Ekkattu Thangal an "inam estate" to which the provisions of Act XXVI of 1948 applied. Indeed the learned Counsel for the appellants did not raise any such contention before us, though the same had been urged before the learned Judge whose decision is now und....
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.... the kudiwaram has been granted in inam to a person not owning the kudiwaram thereof provided that the grant has been made, confirmed or recognised by the British Government. 9. Do these lease-deeds of 1796 and 1914 constitute grants of the land revenue of a village without the kudiwaram to a person not owning the kudiwaram thereof? In regard to the lease of 1796 which was executed by the East India Company, there is a further question whether this grant has been recognised by the British Government. 10. We shall first consider the deed of 1796 and the terms which have been relied upon by the learned Counsel for the appellants as supporting their case that the lease was a grant or an assignment of the melwaram to a person not owning the kudiwaram. This indenture of lease after setting out the parties to the deed proceeds to effect the demise in these terms. The President and Council having demised, leased, let and to farm letting and by these presents to demise, lease, let and to farm let unto the said Shamier Sultan, his heirs, executors, administrators or assigns.... 11. Then follows the clause describing the parcel of the land which is the subject of the demise which we hav....
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....t;a grant" implied the conveyance of freehold estate and a mere lease was insufficient to constitute "a grant". Conceding that a mere lease as such might not amount to a conveyance necessary to constitute a grant in inam the contention was that what was intended to operate as a grant took the form of a lease because of the theory which still prevailed at the end of the 18th century that the State was the owner of the soil and all that it could grant was merely some right in the land a doctrine akin to that prevailing in feudal times in England. It was therefore argued that having regard to the theory prevalent at that date a lease was thought of as the medium for compassing the grant. An inam, it was urged, signified a reward or favour and meant merely a beneficial alienation or a gift of a benediction by a superior to an inferior. Reference was made to the definition of the term in Wilson's Glossary as "a grant of rent free land without any reference to perpetuity or any specific condition." Our attention was also invited to a passage in Baden-Powell, Land System, Vol. 3, page 79, which runs: All native Governments were in the habit of rewarding favo....
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....For instance, the East India Company had entered into a covenant to secure quiet enjoyment by the lessee of the premises demised. The fact that the rent was either nominal or non-existent, a question we shall consider later, does not really bear on the nature of the transaction. 15. The decisions on which learned Counsel relied in support of the position that even a lease might be a grant in inam were: Secretary of State for India in Council v. Srinivasachari, Ramalinga Mudali v. Ramaswami Iyer (1928) 29 L.W. 760, Secretary of State v. Varada Tirtha (1942) 2 M.L.J. 367 : L.R. 69 IndAp 22 : I.L.R. 1942 Mad. 893, and Secretary of State v. Krishnarao. What the Judicial Committee had to decide in Srinivasachari's case, was whether the shrotriem grant in the particular case conveyed the right to minerals in the village which was the subject-matter of the grant. The Board ruled that an inam grant "may be no more than an assignment of revenue" and the fact that the minerals on the land were reserved to the Crown did not detract from the grant being one in inam. The only point decided was that even where the land is the subject-matter of the grant the entirety of the interes....
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....of these villages was held to be "inam" tenure. The passage from the judgment of Venkatasubba Rao, J., at page 786, clearly establishes that what the learned Judges were considering in that case was the nature of the original grant to Khairunnissa and not the title created in Khaja Chamier by the mortgage by the Nawab in February, 1782. The learned Judge there said: Then comes the question is the grant to Khairunnissa a jagir grant or a grant in inam? For, it is this grant that is material, as the property, as I have said, has throughout retained its original character and it was on this argument that was held to be a grant in inam. Secretary of State v. Varada Tirta (1942) 2 M.L.J. 367 : L.R. 69 IndAp 22 : I.L.R. (1942) Mad. 893 was concerned with the right of an inamdar to right to water free of water cess the question depending on whether the grant of the village of Vagaikulam in which the channel was situated comprised the lands of that village or was merely an assignment of the land revenue on it. Their Lordships confirming the judgment of this Court held that the land itself was the subject-matter of the grant. The Inamdar was the Vyasarayaswami Mutt and it based ....
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....ent which was there marked as Exhibit VI and which we have examined ran: The Governor-in-Council of Fort St. George has been pleased to grant and does hereby grant to the said A B and after his demise to his two next heirs in succession all rents or revenues payable to the Government either in money or in kind for and on account of the lands specified in the schedule A hereunder annexed. Their Lordships while holding that if there was proof that the original grant was in the form adopted in this draft, no more than the melwaram of the village could have been conveyed examined the evidence and pointed out that there was no proof that this form was adopted. Indeed there was no evidence that there was any cowle making the grant and it was only from the Inam proceedings as well as from the subsequent conduct of the Government that their Lordships drew the inference that the subject-matter of the original grant was the village itself and not the land revenue alone. The decision therefore does not help the appellants. On the other hand we have an indication as to what exactly would be the form of the cowle that is spoken of in these decisions. The passage from the draft of cowle whic....
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....o be taken into account if subsequent conduct has any evidentiary value. Firstly, the lease of 1795 did not come up before the Inam Commission when the titles of inamdars were investigated and hence no title deed was issued acknowledging the lessee's title as inamdar. Though not conclusive on the matter, it does, however, indicate that the authorities in 1862 did not consider the lease of this village to be tantamount to a grant in inam. Next, there are proceedings of the Government when they refused to register the lessee as a landholder on the ground that the village was not an estate within the meaning of the Estates Land Act, a matter to which We have already adverted. Lastly, there are the proceedings already set out wherein the Government determined the lease of 1914 twice for non-payment of rent. In these circumstances, we consider that no value could be attached to the pieces of conduct on which reliance has been placed by learned Counsel for the appellants. 19. The proceedings between the landholder and the tenant when once it is conceded, as it has to be, that they are not res judicata as between the Government and their lessee are not evidence on which the tenure of....
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....be a lease solely on that account. But apart from this we are not satisfied that learned Counsel is right in his submission that in this deed of 1796 there is no stipulation for the payment of rent. It is not necessary that the rent should be paid periodically. It would still be rent whether it is paid at the beginning of a term in the shape of a fine or a premium or is payable at the end of it. The time fixed for payment does not alter its essential nature as a consideration for the lease. We have already set out the clause in the indenture of 1796 regarding the payment of 100 pagodas and in the context in which it occurs it is clear that it is one of the terms which the lessee has to fulfil as part of his obligations under the expiring lease. The contention that it is a premium in respect of the renewed lease, which is the argument of Mr. Vedantachari, is not justified on a proper construction of the language of the document, for the stipulation is that unless the lessee paid the sum of 100 pagodas as part of the condition of the lease granted in 1796 at the end of the term in 1895 he could claim a right to a further renewal at the hands of the lessor. In these circumstances the ....
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....far as the East India Company was concerned, it purported to grant the land itself with a right to cultivate it under this indenture of lease. We do not consider that the reference to the tenants in the passage extracted above is sufficient to outweigh the terms and the, purpose of the demise-to farm, let, to cultivate and enjoy. But in view of our conclusion expressed earlier that the lease in question is not a grant in inam we feel it unnecessary to finally decide whether if it was a grant it was a grant of the land or merely of the revenue due on it. 22. The next head of argument was that there had been ah imposition of a quit rent of ₹ 21 per year after the lease of 1796 and that this amounted in effect to an enfranchisement of this inam grant which took the form of a lease. This argument appears to us far-fetched and not based upon any materials to support it. The whole basis of the contention is to be found in the fact that on some date not definitely ascertained the Government collected this sum of ₹ 21 per year from the lessee in lieu of rusums and maras payable as contribution for remuneration to village officers. To call this an enfranchisement is, in our opi....