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Padmanabharu Govindaru Namboodiripad and ors. Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 862, 926, 1076, 1381, 1656 and 2164 of 1961
Judge
Reported inAIR1963Ker86
ActsConstitution of India - Articles 14, 19, 31, 31A and 31A(2); Kerala Agrarian Relations Act, 1961; Travancore-Cochin kandukrishi Land Assignment Rules, 1958
AppellantPadmanabharu Govindaru Namboodiripad and ors.
RespondentThe State of Kerala and ors.
Appellant Advocate P.K. Kesvan Nair and; K.N. Narayana Pillai, Advs. in O.P. No. 862 of 1961,;
Respondent AdvocateGovernment Pleader
Cases Referred and Karimbil Kunhikoman v. State of Kerala
Excerpt:
constitution - constitutional validity - articles 14, 31 and 31a of constitution of india and travancore-cochin kandukrishi land assignment rules, 1958 - petitioners challenged validity of act on various grounds - lands held by petitioners situated mostly in former state of travancore which forms now part of kerala under different tenures - maharaja transferred these lands to government under proclamation - relation of landlord and tenant continued - holders of land given option to purchase lands on payment of compensation to government - holders have no proprietary right in soil and holdings of petitioners not estates - held, act struck down partially. - - (vi) the classification of land for the purposes of the act as well as the exemption of certain types, of plantations is.....joseph, j. 1. the petitioners in these writ petitions challenge the validity of the kerala agrarian relations act, iv of 1961, (hereinafter referred to as the act) mainly on the following grounds :(i) the bill which became the act had lapsed beforeit was assented to by the president and the assent ofthe president was of no avail to turn it into law. (ii) the act violates the fundamental rights guaranteed to the petitioners under articles 14, 19 and 31 ofthe constitution. (iii) the properties of the petitioners are not estates within the meaning of the expression in article 31a of the constitution. (iv) the manner in which ceiling is fixed results in discrimination. (v) compensation payable is quite illusory and re-suits in discrimination. (vi) the classification of land for the purposes.....
Judgment:

Joseph, J.

1. The petitioners in these writ petitions challenge the validity of the Kerala Agrarian Relations Act, IV of 1961, (hereinafter referred to as the Act) mainly on the following grounds :

(i) The Bill which became the Act had lapsed beforeit was assented to by the President and the Assent ofthe President was of no avail to turn it into law.

(ii) The Act violates the fundamental rights guaranteed to the petitioners under Articles 14, 19 and 31 ofthe Constitution.

(iii) The properties of the petitioners are not Estates within the meaning of the expression in Article 31A of the Constitution.

(iv) The manner in which ceiling is fixed results in discrimination.

(v) Compensation payable Is quite illusory and re-suits in discrimination.

(vi) The classification of land for the purposes of the Act as well as the exemption of certain types, of plantations is discriminatory.

2. The broad ground on which the petitions are opposed by the respondent, the State of Kerala, is that the lands in question fall within the definition of 'estate' in Article 31A and that the legislation is therefore constitutional.

3. We may observe at the outset that in view of the decisions of the Supreme Court in Purushothaman Nambudiri v. State of Kerala, 1962-1 Ker LR 1: (AIR 1962 SC 694) and Karimbil Kunhikoman v. State of Kerala, 1962-1 Ker LR 67; (AIR 1962 SC 723) which cover all the grounds enumerated above except the third, arguments were addressed only on the question whether the lands held under the different tenures referred to in the petitions can be treated as 'estates' as defined In Article 31A of the Constitution. This question has to be answered in the light of the principles laid down by the Supreme Court in the two decisions cited above.

4. The lands claimed by the petitioners are mostly situate in the former State of Travancore which now forms part of the State of Kerala and are held by the petitioners under different tenures. As the Supreme Court has held that certain provisions of the Act are violative of the fundamental rights guaranteed by the Constitution, it is sufficient to consider whether the petitioner's lands are within the definition of 'estate'. If the petitioners have full proprietary rights in the soil, the petitioners must fail. We may also state that in respect of certain of the tenures which come under the broad head of Janmam rights, the validity of the Act will have to be upheld even if it offends Articles 14, 19 and 31.

5. Soon after the Supreme Court delivered judgments in Purushothaman Nambudiri's case 1962-1 Ker LR 1 : (AIR 1962 SC 694) and Kunhikoman's case 1962-1 Ker LR 67 : (AIR 1962 SC 723) the petitioners filed supplementary affidavits stating the various tenures under which they held lands. These fall under the following heads :

(i) Pandaravaka lands :

(i) Pandarapattom.

(ii) Pandaravaka Otti.

(ii) Jenmom lands :

(1) Thanathu

(2) Thettom

(3) Mana Vaka

(4) Brahmaswom Vaka or Devaswom Vak?

(5) Kudijenmom

(6) Kanom

(7) Kanom Kudi Jenmom.

(8) Venpattom.

(iii) Inam :

(1) Adima

(2) Anubhogam.

(3) Thiruvulam.

(4) Danom

(5) Pandaravaka Kudi Jenmom

(6) Erayeli

(7) Viruthi

(8) Karam Ozhivu

(iv) Kandukrishi Lands

(v) Sri Pandaravaka Lands.

and (vi) Thiruppuvarom.

Besides these, there are three, viz., Puravaka, Pan-darakava Verumpattom and Pandaravaka Kanom lands, of the former State of Cochin which are claimed by the petitioner in 0. P. No. 862 of 1961. As agreed to by counsel, these will be dealt with separately and the ques-fion is left open for the present.

6. it has been pointed out by the Supreme Court that if the word 'estate' is defined in an existing law relating to land tenures in force in a particular area, no difficulty will arise. There was no law in the former State of Travancore defining the term 'estate'. Reference was made to Estates Rent Recovery Act, IV of 1068, which was an Act . 'authorising the continuance of the existing practice in regard to recovery of rents due to the Estates of Kilimanoor and Edapalli. There is no definition of the term 'estate' in this Act, and there was no necessity for defining it as it related exclusively to collection of rents due to those Edavagais. There were four Edavagais, viz., Kilimanoor, Edappally, Poonjar and Vanjipuzha. The first two were surveyed along with the rest of the lands in Travancore for the purpose of Settlement. Except the fact that the two Edavagais were called Estates in this^Act, there was no attempt to define the term 'Estate'. There was a later enactment, the Travancore Edavagai Act, III of 1109. The preamble states :

'Whereas it is expedient to provide for the settlement and better administration of certain Edavagais'.

The objects and reasons refer to all four as Edavagais. Part of the Act applies to the Edvagais of Poonjar and Vanjipuzha and part to the Estates of Kilimanoor and Edapalli.

7. It appears that the words 'Edavagai' and 'Estate' were used as interchangeable terms without attempting to define 'Estate'. It is unnecessary to pursue this matter further as the lands which torm the subject matter of these petitions are not included in the Edavagais of Travancore.

8. In the absence of a definition of the term 'Estate' in any existing law, we have to investigate whether the lands are those in which the occupants have janmam fights or proprietary rights in the soil, in fact this is the sole question for decision in these petitions.

9. Of the several tenures enumerated above, the most important are the Pandaravaka lands in Travancore which include nearly three-fourth of the registered holdings in the former State of Travancore. The nature of Pandaravaka lands is explained in the Travancore Land Revenue Manual (Revised Edition), Volume ill, Part I, page 6, BS follows :

'Pandaravaka or Sirkar lands are lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sirkar. They form the major portion of the registered lands. Before 1040 M. E. the holders of Pandaravaka lands were mere tenants-at-will as the tenements created by the Sirkar till then was resumable and were of the nature of temporary leases just like tenements created by private jenmis. The pattom proclamation of 1040 converted them into permanent leases and conferred on the holders thereof permanent rights of occupancy, heritable and alienable.'

The position contended for by the respondent-State is that these lands are Estates, the holders of land having obtained full proprietary rights in the soil under the Royal Proclamation of 1040 M. E. (1865 AD). As the Proclamation is the basis of the respondent's case, it is useful to extract the same:

'Whereas we earnestly desire that the possession of landed as well as other property in Our Territory should be as secure as possible, and whereas, we are of opinion that, with this view, Sirkar Pattom lands can be plated ona much better footing than at present so as to ennance their value; We are pleased to notify to Our Ryots -

1st. That the Sirkar hereby and for ever surrenders, for the benefit of the people all optional power over the following classes of lands, whether wet, garden or dry, and whether included in the Ayacut accounts or registered since

Ven Pattom,

Vettolivoo Pattom,

Maraya Pattom

Olavoo Pattom

Mara Pattom,

and all such Durkast Pattom, the tax of which is understood to be fixed till the next Survey and Assessment

' 2ndly. That the Ryots holding these lands may regard them fully as private, heritable, saleable, and otherwise transferable, property.

3rdly. Accordingly, the sales, mortgages, etc., oT these lands will henceforward be valid, may be effected on stamped cadjans, and will be duly registered. The lands may be sold for arrears of tax. In execution of decrees of Courts and such other legitimate purposes, and may also be accepted as security by the Sirkar as well as by private individuals.

4thly. That the holders of the lands in question may rest assured that they may enjoy them undisturbed so long as the appointed assessment is paid.

5thly. That the said holders are henceforth at full liberty to lay out labour and capital on their lands of the aforesaid description to any extent they please, being sure of continued and secure possession.

6thly. That the aforesaid description of lands will be resumable by the Sirkar like Jenmom and other private lands only for purely public purposes, as for instance, for making roads, canals, public buildings, etc., and when resumed for such purposes, compensation will be paid by the Sirkar not for improvements only as heretofore, but equal to the full market value of such lands.

7thly. That the foregoing concessions are not how-ever to be understood to affect it any way the rights of the Sirkar to regulate the land tax, to resume escheats, to confiscate the property of criminals, and generally such rights as have heretofore, been exercised upon ail property in general.

8thly. That it is to be understood that when Pattom land, being a portion of a holding, is transferred to a pauper with a view of defrauding the Sirkar of the tax due to it, the Sirkar will have the right of apportioning the tax so as to prevent loss of revenue; and

9thly. (Repealed by Proclamation dated the 5th Karkatakom 1059).'

The preamble of the Proclamation shows that the object was to make possession of landed property as secure M possible. The provisions of the Proclamation may now be examined.

10. Clause 1 stated that the Sirkar surrendered forever all optional power over the classes of lands enumerated in the clause. The optional power referred to isthe power to resume such lands at will. The authorisedMalayalam version makes this quite clear :

* * * * *

(Original in Malayalam, omitted here -- ED.)

Clause 2 provided that the Ryots holding such landsmay regard them as private, heritable, saleable and otherwise transferable. Clause 3 declared that sales, mortgages, etc., of such lands as well as sales for arrears of revenue and sales in execution of decrees would be valid. Clause 4 ensured undisturbed enjoyment of such lands as long as the assessment on the land was paid. Clause 5 gave full liberty to the holders of such lands to lay out labour and capital on their lands 'being sure of continued and undisturbed possession'. Clause 6 provided for resuming such lands for public purposes, like Jenmom and other private lands, on payment of compensation equal to the full market value of such lands. Clause 7 reserved the rights of the Sirkar to regulate land tax, to resume escheats, to confiscate the property of criminals, etc. Clause 8 reserved a right to apportion tax on portions ot holdings when unremunerative portions were transferred to paupers, to defraud the Sirkar of tax on such lands. Clause 9 which provided for payment to the Sirkar of a fee of 2% of the consideration for sales was later repealed in 1059 M. E. (1884 A. D.)

11. The provisions of the Proclamation do not, in Our opinion, confer on the tenants absolute proprietary rights in the soil. There is no clause by which the Sirkar parted with all rights in favour of the tenants and in the absence of such a provision, the holders of such lands can only be treated as holding such land as perpetual leases.

12. It is useful to compare this Proclamation with the Settlement Proclamation of Cochin of 1030 M. E. (1905 A. D.). Clause 13 provided :

'At present holders of Pandaravaka Verumpattom lands do not possess any property in the soil. As we are convinced that proprietorship in soil will induce a cultivator to improve his land and thereby add to agricultural prosperity of the country, we hereby declare that our Verumpattom holders of lands shall, after the new settlement has been introduced, acquire full rights to the, soil of the lands they hold and that their rights shall remain undisturbed so long as they regularly pay the State revenue, provided that the rights to metals and minerals, possessed by the State in all lands under whatever tenures they are held, are reserved to the State'.

Unlike the Proclamation of Travancore under which permanent occupancy right alone was granted, Section 13 of the Cochin Proclamation conferred on the tenants 'full rights to the soil of the lands they hold'. This is a vital distinction and It was mainly on the basis of this that the Supreme Court held in Purushothaman Nambudiri's case 1962-1 Ker LR 1 : (AIR 1962 SC 694) that the tenants were proprietor of the soil. The Supreme Court held

i 'It would thus be seen that under clause 13 the person holding lands on the Pandaravaka Verumpattom tenure is not a tenant. He Is given the proprietary right in the soil itself, subject of course to the rights as to metals and minerals reserved in favour of the State, indeed, the whole scheme of the new Proclamation appears to be to change the character of the possession of the Pandaravaka Verumpattom tenure-holder from that of a tenant into that of a proprietor-holder. It is true that he is made liable to pay half of the net produce and that may appear to be a little too high, but the measure of the levy will not convert what is intended to be a recovery of assessment Into a recovery of rent. The proprietor of the land held on Verumpattom tenure is nevertheless a proprietor of the land and he holds the land subject to his liability to pay the assessment to the State. It is not difficult to imagine that in a fairly large number of lands held by Pandaravaka Verumpattom tenure-holders the holders inturn would let out the the lands to the cultivators and thus would come into existence a local equivalent of the class of intermediaries. Land revenue record is required to be prepared by the Proclamation and relevant entries showing the extent of the properties belonging to the respective holders and the details about their liability to pay the assessment are intended to be shown in the said record. In our opinion, it would not be reasonable to hold that the 'lands held by the petitioner under the Pandaravaha Verumpattom tenure do not confer on him the proprietary right at all but make him a tenant of the State'. (1962-1 Ker LR 1 at p. 35 : (AIR 1962 SC 694 at p. 709))

13. In those days, the State had to inform the British Resident about proposed measures of reform and material parts of the Oewan Sir T. Madhava Row's letter to the Resident are given in the footnote at pages 6 to 9 of Volume I of the Acts and Proclamations of Travancore. Referring to the Proclamation, the Dewan wrote :

'It may generally be observed here that what the Notification proposes to do is no more than to place Sirkar Pattern lands on the same footing as that of the Ryotwari lands in the Madras Presidency'.

To the same effect is the statement of the Dewan in the Administration Report for 1040 M. E.

'The most important measure taken by the Sirkar in regard to land, yet remains to be noticed. It is that, by which a great extent of Sirkar Pattom property has been enfranchised and put on the same footing as Ryotwari lands in the Madras Presidency'.

(Travancore Land Revenue Manual, Vol. 1, p. 374). It is again referred to in the Administration Report for 1041 M. E. as :

'on the same footing as Ryotwari lands in the Madras Presidency'.

14. In Kunhikoman's case 1962-1 Ker LR 67 : (AIR 1962 SC 723) the. Supreme Court has held that Ryotwari lands in Kasaragode are not Estates. In a batch of writpetitions relating to Ryotwari lands in the Districts of Malabar which formerly formed part of the State of Madras, we have held that the same considerations must apply. As the Proclamation of 1040 M. E. does not confer full proprietary rights on tenants, we are of opinion that the Pandarapattom lands in the area covered by the former State of Travancore cannot be treated as Estates or landsin which the tenants have full rights in the soil.

15. We are not unaware of the fact that there is no express provision in the Proclamation which would err-able the ryots to give up their lands. It is seen from the Dewan's letter referred to above that clause 8 was intended to prevent abandonment of unremunerative portions of their holdings by the ryots. Referring to this clause, the Oewan wrote :

'About the expediency of the provision embodied in clause 8, I own I am not myself quite sure . . .Nor is there anything unjust in such a provision. The whole is a matter of contract. A certain block of land is given in enjoyment to a ryot on certain conditions as the rent, and he must take the block with its bad as well as good parts; and he cannot claim it as a matter of right to divest himself of the bad parts and to claim abatement in proportion to the area resigned. While the provision is maintained with a view to prevent gross cases of fraud, it need not be enforced with the overstrictness which may be calculated to lead to inquisitional proceedings'.

16. It may also be mentioned that in Travancore certain holdings abandoned by holders were brought under the head 'Nirthal' (suspense) and tax in respect of such lands was treated as held in abeyance. Such lands are referred to and treated as Government lands in the Travancore Land Assignment Act, III of 1097. Explanation 1 to section 2 of the Act provides :

'Lands registered in the name of a person but subsequently abandoned or relinquished and all lands held byright of escheat, purchase, resumption, reversion or acquisition under Regulation XI of 1089 are Government lands within the meaning of the Section'.

Even assuming that the right to abandon registered holdings was not available to holders of Pandarapattom lands in Travancore after 1040 M. E., that by itself is insufficient to hold that the holders of such lands had full rights inthe soil.

17. Pandaravaka Otti lands are lands given on mortgageby the Government in ancient days to subjects who advanced loans to the Government. Every time such property was transferred by sale, the mortgage amount was treated as reduced by one-fourth and the Government demand enhanced by the amount of the interest on the sum reduced --a process known as Ottivilakkom. Section 22 of the Settlement Proclamation of 1061 made radical changes regarding this tenure. Those changes were :

'(1) no debt shall be recognised as due to theholder;

(2) no interest shall be deducted from the Pattom on such debt;

(3) no reduction of debt or a corresponding enhanca-ment of the Sirkar demand shall be made when such properties are transferred by sale, i. e., in other words, thatthe Ottivilakkom Rules shall no longer be recognized andenforced.

The properties held on the tenures in question shall be recognised as so many favourably assessed lands or Inams and confirmed to the holders as such on the following simple terms :

I. All lands on which the present Government demand is found to be less than half the Pattom assessment according to the new Settlement, to have the demand fixed at one-half of that assessment.

II. All lands on which the Government demand at the time of Settlement is found to be more than half of the new Pattom assessment to have such demand confirmed and continued as the future demand. Where such demand is in any case found to be equal to or exceed the Pattom, the land will cease to be a favourable tenure and be classed as Pattom.

III. To the Government demand as above fixed onthese lands, no Rajabhogom shall be added'.

These lands thus came under the head 'Inam lands' which will be considered later.

18. Coming to the second category of lands, viz., Jenmon lands, the jenmies have full proprietary rights in the soil. The origin of the title of the jenmles is shrouded in obscurity but the development of this branch of landtenure was on the assumption that Parasurama who con-quered the land of Kerala or, as mythology would put It, reclaimed it from the sea, gave it as gift to Malayala Brahmins or Nambudiries. The rest of the people culti-vated the lands under the Jenmies. In course of time,the Jenmies endowed certain temples built by them with 'lands and thus the Devaswom lands came into existence.These were similar in nature and incidents to Jenmom lands. These lands were enjoyed free of tax, the State imposing a light assessment only when the Jenmies alienated the land to others. We may extract the following passage from Sri T. Madhava Row's Memorandum regarding the origin and nature of Jenmom rights :

'A Jenmi is often termed a landlord. But, it must be clearly understood and also always remembered that a Jenmi though certainly a landlord, is a peculiar Kind or landlord.

Any person, who holds a pattah from a Collector In a British District and under it holds from the British Government subject to Government tax more or less, Is called a landlord in ordinary language. Even in Travancore, any coffee planter or indeed any ryot, who holds lands under a grant from the Sirkar, etc., is or may be called a landlord. But, be it remembered, such landlords are not Jenmies.

A Jenmi differs from such landlords in that he does not derive his title to lands from the Sirdar etc. His title to the Jenmom lands is inherent. He is, so far as his Jenmom lands are concerned, a little territorial sovereign in a limited sense. He is landlord of his Jenmom domain exactly in the sense in which this Sirkar is landlord of all the land it grants to planters and indeed to all ryots in general; in the sense in which the British Government is landlord of all the Ryotwari lands of the East Coast Zillahs of the Madras Presidency.

It is necessary, in view to avoid errors and misconceptions, to familiarize the mind to this definition of t Jenmi.

The origin of Jenmom property may be briefly explained here with a view to make the rights of jenmis clear. Kerala Desom (in which Travancore is included) was origi-nally conquered by Parasurama, and this great warrior parcelled out the conquered lands among a limited number of Brahmins. The Brahmins then became territorial lords, each independent of the rest. From that early age, the lands have descended with the tenure almost unimpared. The lands so belonging to each Brahmin are said to constitute his Jenmom, and the Brahmin himself is called a Jenmi. These lands, so long as they continue in possession of the Jenmi, are free of all taxation. To this day this exemption continues in full force.

Jenmom lands are precisely what are in Europe called allodial properties as contradistinguished from feudal.

It must be clear from what has been stated that all the lands in Travancore belong to a body of jenmis. There are no lands that do not belong to some Jenmi or other.

Be it remembered that the Sirkar itself is one of these Jenmis, it having come to possess Jenmom lands by gift, purchase, eacheat, confiscation and other ways. It is only a great Jenmi, great fn the sense that its Jenmom property is extensive.

If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Jenmis, i.e., from the Sirhar, which is the Chief Jenmi, or from some other Jenmi'. (pp. 2 and 3 of Travancore Land Revenue Manual, Vol. IV)

19. We may also refer to certain passages from an article contributed by a former Maharaja of Travancore in 1882 :

'According to all legends and all available evidence, the Malabar Coast was populated by Aryan emigrantsfrom the eastern side of the ghauts. It is equally a fact that the priestly class not only predominated among the emigrants, but actually monopolised the whole of the land of their adoption to themselves, the rest of the emigrant population being their drawers of water and hewers of wood, thejr serfs or at the most, their tenants-at-will. But to stereotype the configuration of society for all time to come, is as much an impossibility as to fix that of the clouds of the sky. Aggregations and segregations of power, influence and wealth, must ever and anon go on under the guidance of the universal law of struggle for existence and survival of the best. These priests are the wisest, and consequently the most powerful, who, without directly arrogating secular power to themselves, can bring into the meshes of their moral influence, those in whose hands that universal law places such power. The ecclesiastics of the Malabar Coast knew this as instinctively as the ecclesiastics of Rome. But they had the additional advantage of having something more solid than benedictions and indulgences to confer upon their political stewards, viz., sovereignty of the land which exclusively belonged to them. They were equally wise and far-sighted in another step they took. They foresaw that the halo of sanctity which encircled themselves might not be proof against the gradual degeneracy of religious feelings which time must produce, and the consequent encroachment upon their supremacy in the land. And they constitutionalized that sanctity by demising large tracts of land and their revenues to certain temples built and consecrated by them. Men who would not hesitate to rob a priest may still hesitate to commit sacrilege on an object of general religious worship. Of these temples, the priests assumed the proprietary wardenship. Almost every temple of note had a synod of these priestly wardens. They invited the leading layman or chief to a membership of the synod and entrusted to him the stewardship of the whole temple domain, subject to their superior authority. Thus arose those rich temples. Thus arose the sovereignties of the Malabar Coast'. (pp. 6 and 7 of Travancore Land Revenue Manual, Vol. IV-1916).

20. It cannot be disputed that these Jenmis and Devaswoms had full proprietary right in the soil and that the lands in which they have 'Jenmom rights' are 'Estates' within the definition of the word in Article 31A.

21. The petitioner in one of the petitions raised a contention that 'Jenmom rights' should be confined to such lands In which Kanom rights have been created by Jenmis. This contention is based on the definition of the expression 'Jenmom lands' in the Travancore Jenmi and Kudiyan Act, V of 1071. The definition runs thus;

' 'Jenmom land' means land (other than Pandaravakay, Sreepandaravakay, Kandukrishi or Sirkar Devasswom land, recognised as such In the Sirkar accounts) which is either entirely exempt from Government tax or, If assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in which is created for a money consi-deration (Kanom) and is also subject to the payment of michavarom or customary dues and the periodical renewal of the right on payment of renewal fees.' (p. 336, Vol. II, Acts and Proclamations of Travancore).

22. As the objects and reasons show, the object of the Bill was

'(as recited in the preamble) to carry out on itsentirety the intention of the Royal Proclamation of 25thAdi. 1042- the existing Statute Law governing the relationbetween certain classes of landlords (Jenmis) and their (Kanapattom) tenants'.

23. The definition in Act V of 1071 (Travancore) which was intended to cover the relation between Jenmis and their Kanapattom tenants only will not justify the conclusion that 'Jenmom rights' are to be confined to rights as Jenmis in respect of Kanapattom lands, The Jenmi and Kudiyan Act contains a definition of the term 'Jenmi' which is in these terms:

' 'Jenmi' means a person in whom the proprietary right over Jenmom lands is vested and includes, in the case of Devaswoms owning Jenmom lands, the managing Trustee or Trustees of the Institution for the time being.'

What the definition stresses is the proprietary rightin the land. We may in this connection extract a passaga from the Memorandum of Mr. Kunhiraman Nair, one of the Judges of the High Court of Travancore, about 70 years ago:

'The term 'Jenmom' was originally used by the Brah-mins exclusively to denote their allodial proprietorship and is still used in that sense in courts and cutcherries in Travancore, though in other parts of Malayalam and in popular parlance in Travancore, the term is now universally employed to denote the full proprietary right in tha land of any class of people'.

In view of what we have stated above, the following tenures, 'Thanathu, Thettom, Manavaha, Brahmaswom Vaka, Devaswom Vaka, Kudijenmom, Kanom, Kanom Kudijenmom and Venpattom' created by Jenmis must be held to be covered by the word 'Estate' in Article 31A of the Constitution and the constitutional validity of Act IV of 1961 cannot be successfully challenged, in respect of such lands.

24. As regards 'Inam Lands' it was conceded that the holders had full proprietary rights in the soil. These consist of Pandaravaka Adima, Anubhogam, Thiruvulam, Danom, Pandaravaka Kudijenmom, Erayeli, Viruthi and Kanam Ozhivu. Inam lands other than Erayeli and Viruthl (Service Inams) were dealt with under Section 24 of the Revenue Settlement Proclamation of 1061 M. E. (1886 A. D.) Clause 7 of Section 24 provided:

'There shall be no further interference on the part of the Government with these free holds, except such as might be necessary for the punctual realization of the quit rent payable'.

25. Erayeli and Viruthi tenures were dealt with in the Viruthi Proclamation of 1061 M. E. The burden on Viruthicars for performing services was lightened but not relieved and Section 11 of the Proclamation provided that any Viruthicar unwilling to continue the Viruthi service even under the terms of the Proclamation would be at liberty to relinquish the land, and that such relinquish-ment was to be in writing. Provision was also made for dealing with lands relinquished by Viruthicars. With the exception of such Viruthi Lands, it must be held that the holders of Inam lands had Jenmom rights or full proprietary rights in the soil and that such lands must be treated as 'Estates' under Article 31A of the Constitution. We may add that Pandaravaka Otti lands also come under the head of Inams.

26. Now we come to Kandukrishi lands. Paragraph 28 of the Settlement Proclamation of 1061 M. E. describes the nature of these lands:

'These lands, as is well known, are what may be called the Home Farms or the private property of the Sovereign and are cultivated by tenants who are entitledonly to the cultivator's share and have no rights of any kind in them. Formerly, the Proprietor used to supply to the cultivating tenant the seed and cattle required for the cultivation, and in return received payment, in addition to the melvatom or Government share of what is called Kolulabhom or the Proprietor's share. But as this custom has now ceased 2nd the labourer is left to find his own seed, cattle and implements, we have commanded that this Kolulabhom should be no longer levied, but that the lands, after being demarcated, and surveyed and assessed on the same principles as other lands, be allowed to be enjoyed on the existing terms, subject only to the payment of the pattern in Kind as at present. All extra payments outside this pattom will be abolished'. (p. 44, Acts and Proclamations of Travancore, Vol. I.)

Reference is made to Kandukrishi lands in the Settlement Final Report:

'The Kandukrishi lands were what may be termed the Crown lands or the home-farms of the Sovereign. They were granted on simple leases revocable at pleasure, and the ryots had not only no proprietary rights, but not even transferable rights of occupancy. The rent was generally fixed and payable all in grain. Though the tenants were, strictly speaking, no more than mere tenants-at-will, the Sirkar, as a rule, never interfered with their occupancy so long as the rent was regularly paid'. (Settlement Final Report, P. 19--see p. 44 of Acts and Proclamations of Travancore, Vol. 1.)

Though the Maharaja transferred these lands to the Government under a Proclamation of 1124, the relation of landlord and tenant continued. Rules were framed under the Travancore-Cochin Land Assignment Act for registry of Kandukrishi lands in 1958, and under these Rules, the holders were given the option to purchase the lands on payment of 'compensation' to the Government. As such purchases nave not been shown to have taken place in respect of the lands in question, it cannot be contended that the holders have proprietary rights in the soil or that the holdings are Estates. The Act must therefore be struck down in respect of Kandukrishi lands.

27. Sree Pandaravaka lands are lands belonging to Sree Padmanabhaswami, the deity of the principal temple at Trivandrum. The occupants are tenants and they have no proprietary right in the soil. The same conclusion must follow as in the case of Kandukrishi lands.

28. Thiruppuvarom is not exactly a tenure. This is referred to in the Settlement G. O. as follows:

'A thiruppuvarom is the assignment, in favour of a third party, of a specific portion of the revenue payable to the Government by the holder of a specified land. These assignments are old ones. The circumstances under which they were made cannot now be fully traced in all cases. In some cases, the thiruppuvarom represents probably the Interest on money lent to or due by the Sirkar. In other cases, it is probably the michavarom due to the jenmi of a property, by its tenant, when the interests of the latter (alone) lapsed fo the Government by escheat or otherwise. In other cases again, it is probably an al-lowance or gift to a religious or charitable institution. There is also another class of cases in which it is a remuneration for services to be rendered in certain Sirkar temples. The procedure, however, in all thiruppu cases, is the same. In every case, the thiruppu-holder collects the varom direct from the holder of the land on which it is charged. In case of default, payment is enforced by civil suit'. (Land Revenue Manual (Travancore), Vol. IV, p. 716).

29. There is yet another category of lands, viz., those assigned under the Travancore Land Assignment Act (III of 1097). The petitioner in one of the petitions owns 'Kayal lands'. These are lands reclaimed from the Vem-banad Lake. Such lands were 'assigned after the last Settlement and the assignment is by dale of the land by the Government as in the case of Puduval lands. The Government collects the price of the land (Tharavlla) and the Patta issued is the deed of sale. The holders of such lands have full proprietary rights in the soil and the Act is protected by Article 31A of the Constitution so far as these lands are concerned.

30. Out conclusion is that the Act is protected only in respect of the following category of tenures in the area comprising the former State of Travancore:

(1) Jenmom lands,

(2) Inam lands other than Viruthi lands,

(3) Kandukrishi Lands assigned to occupants under the Travancore-Cochin Kandukrishi Land Assignment Rules, 1958, and

(4) Lands assigned by the Government after levying the price thereof,

and that the Act must be struck down in respect of the other tenures in that area.

31. It follows from the above that O. P. Nos. 862, 926, 1381, 1656 and 2164 of 1961 must be and are partly allowed. O. P. No. 1076 of 1961 which relates only to Jenmom lands is dismissed. In the circumstances, we make no order as to costs.


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