1. The suit of which this appeal arises was brought by a minor Inamdar to declare that defendants 1 and 2, tenants under him, have no occupancy right in the Inam lands and to set aside an attachment of the said lands effected by 3rd defendant on the ground that they possessed such a right.
2. The sole question is whether the suit lands form part of an 'estate' and whether plaintiff and defendants 1 and 2 occupy the position of land-holder' and 'ryot' within the meaning of the Madras Estates Land Act. If they do, Section 6 of the Act will operate to confer occupancy right on the defendants.
3. The suit lands were originally ryoti lands situated within the permanently settled Zamindari of Surangi, which is an estate within the meaning of the Act: they were granted by the Zamindar after permanent settlement on a quit-rent payable to himself of Rs. 15 per annum. The grant is found, as a fact to include both varams.
4. The learned Chief Justice has held that in consequence of the Inam grant, the Act is not applicable to such lands, the Inamdar not being a 'land-holder' within the meaning of the Act. Sadasiva Iyer, J. on the other hand, considers the Inamdar to be a land-holder, and holds that in spite of the grant the lands still form part of an estate, and that Section 6 operates to give defendants occupancy right.
5. I have considered with great care and respect the reasoning of the learned Chief Justice, especially as regards the intention of the framers of the Act: but both on the ground of authority and of the provisions of the Act as they stand, I am constrained to take the opposite view.
6. The suit lands admittedly, but for the grant in Inam, would fall within Clause (a) of Section 3(2) of the Act. As regards the definition of the ' land-holder' it may be conceded at once that so long as the Zemindar reserves to himself a quit-rent, the Inamdar cannot be regarded as the owner of the lands in the ordinary legal meaning of the term. But the definition of the land-holder includes ' every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner,' and I think the grant in Inam must-be regarded as such a transfer. A certain difficulty may arise, where as in the present case, the grant was of both varams: this I shall consider later. But where the grant is only of the melvaram, I do not see how a Court can refuse to treat it as a transfer by the owner of the right to collect the rent of the whole or any portion of the estate to which it relates: and whatever may have been the intention of the Legislature we have to deal with the Act as it left their hands. This is the view aken in a series of cases before this Court starting with Appalanarasimhulu v. Sanyasi I.L.R. (1913) Mad. 33. The difficulty referred to by the learned Chief Justice as regards the definition of rent is dealt with by Sundara Iyer, J. in that case: and I entirely agree with his view. The rent which the Inamdar is entitled to collect by virtue of his Inam grant is identical with the rent which was lawfully payable to the Zemindar before the grant and with all respect to the view of ray Lord the Chief Justice, 1 think the significance sought to be placed on the words 'in his estate' in the definition of rent is misplaced. Among later cases in which the same view is taken I may quote Chipura-palli Appayya v. Ramachandra Raju : AIR1915Mad685 Venkanna v. Sri Raja Rama Row (1914) I.L.R. 38 Mad. 1155 Doddampudi Venkairayudu v. Bikkina Subbarayudu (1918) M.W.N. 643 and a recent unreported case (S.A. No. 1169 of 1917). We were referred to two cases Gajapathi Maharaja Garu v. Sondi Prahlada Binoyi Ratno (1914) M.W.N. 179 and Idubilli Siyyaddi v. Sri Rajah Viswasvara Nissanka (1915) 18 M.L.T. 142 in which a service Inamdar is said to have been treated as the tenant of the Zemindari but in neither of these cases did the question before us arise for consideration. The suits turned on the nature of the Zemindar's power of resumption.
7. The learned vakil for respondents, however, seeks to fall baek on the possible ground of distinction that in this case the grant is found to be of both warams: and he argues that the Zemindar should consequently be held, by virtue of the Inam grant to have admitted the Inamdar as a ryot of his own. This argument has occasioned me some doubt, but I have come to the conclusion that it really makes no difference. This was the view taken in Section A. No. 1169 of 1917 above quoted: and Lakshminarasimham Pauihulu. v. Sree Sree Ramachandra Maharaja Deo I.L.R. (1912) Mad. 319 and Tallapragada Subba Row v. Gopiseiti Narayauaswami Naidu Garu : (1916)31MLJ339 further tend to support it.
8. We must assume that at the time of the Inam grant, the lands were either lying waste or were cultivated' by a mere tenant at will; in any case there was no one in possession whose occupation could not be terminated at the pleasure of the Zemindar or his grantee. What was the effect of the grant? It seems to me it was to place the Inamdar in the same position as his grantor, subject only to the liability to pay quit-rent which prevented him from being viewed as an owner of an 'estate.' He could deal with the land exactly as the Zemindar could before the transfer-either cultivate it himself, or admit somebody else as a tenant under him. If as in the present case he adopted the latter course, he placed the tenant in exactly the same position as the Zemindar would have done, if the admission had been by him. If he cultivated the land himself this would not alter its character as ryoti land or affect the consequence of any subsequent admission as a tenant. In fact, when we say that the grant was of both warams, we merely mean that the right of the grantee in respect of the lands were not limited by the necessity of respecting the rights of any person possessed of the kudivaram at the time of the grant.
9. I think this view is supported by the amendment to the Act in respect of the definition of rent effected by Act IV of 1909. As Section 2(11) originally stood, rent for the purpose of a number of sections of the Act dealing chiefly with recovery included' (c) quit-rent, jodi, poruppu and the like payable by an Inamdar as such to the land-holder.' By the amending Act this clause was omitted. No explanation is afforded by the preamble: but it seems to me that the Legislature could only have intended deliberately to take away the power specifically conferred on a landholder by the Act as it was originally enacted, to treat his Inamdar as if he were a ryot in respect of the realization of quit-rent.
10. I may add that the view I am inclined to take does not seem to me to involve any practical inconvenience, or to run counter to the general policy of the Act. One of the main objects of the latter was to confer definitely occupancy right on all tenants of ryoti land, whose claim to the same was previously only presumptive. It is difficult to see why such persons should be less entitled to such a benefit because the right to collect rent from them had been transferred by the Zamindar to an Inamdar.
11. One more argument calls for brief consideration. The learned vakil for the respondent drew attention to the words 'in the estate of such land-holder' in Section 6(1) and argued that they exclude the cause of a ryot admitted by an Inamdar, who was not the owner of the estate although a land-holder within the definition of Section 3. 1 think this difficulty is only imaginary.
12. The section is not happily framed whatever be its meaning: but I feel no doubt that the words referred to 'in the estate of such land-holder ' simply mean ' in the estate of which he is treated for the purpose of this Act as the land-holder.'
13. Since writing the above, my attention has been drawn to the possible contingency of a grant of the class we are dealing with being made to a person who is already at the time of grant in possession of the Kudivaram right. The anomaly of such a case is more apparent than real. It would be pedantry to speak of the grant as a transfer to the ryot of the right to collect rent from himself: it is simply a concession to him of a portion of the rent which he was previously liable to pay. He was a ryot with occupancy right before the grant and his position is not affected by the grant: vide Explanation to Section 6 of the, Act.
14. I would allow the Letters Patent Appeal and dismiss the suit with costs of 3rd defendant throughout.
Coutts Trotter, J.
15. I regret very much that, owing to the divergences of judicial opinion, first between the Chief Justice and Sadasiva Ayyar, J. and now between my Lord and my brother Kumaraswami Sastri, J. both of whose judgments I have had the opportunity of perusing, it falls to my lot to give what is in effect the deciding opinion in this case. I regret it because I have had very little experience of the Act and have had very few of its provisions to consider judicially. I do not propose to follow my learned brothers in their exhaustive examination of the material sections and the relevent decisions on the Act, partly because it is no use covering the same ground again and partly because this reference was made with the express purpose of challenging the admitted current of decisions in this Court. On the other hand I do not think it is safe, even where one is prepared to cut one-self adrift from the existing authorities and reconsider the question ab initio, to be guided by speculations as to the supposed general objects of an Act of this nature. Of course there are statutes whose general objects are so plain that one can use them as a guide to reject constructions of ambiguous sections which are possible interpretations of the language of particular sections but obviously opposed to the plain general purpose of the act. But that general purpose, if it is to be used as a guide, must be apparent from the language of the Act itself and it must only be, utilised in the elucidation of language which is really ambiguous in the sense that, without straining it, can be held reasonably capable of bearing either of the suggested constructions. Speaking for myself, I am unable to gather from the language of this Act any general intention with regard to the position of minor Inamdars; and, consequently, I cannot think that the words of Section 3(5) can in any legitimate sense be called ambiguous. In my opinion the definition of the word 'land-holder' in that sub-section inevitably brings a minor lnamdar within its scope. I cannot see how it can possibly be said that a minor lnamdar is not a person entitled to collect the rents of a portion of the estate by virtue of a transfer from the owner. I quite agree that this undoubtedly has the effect of enlarging the definition of estate in Section 3(2); but I know of no principle of construction which would justify me in. using Section 3(2) as in any way overriding or controlling what 1 am driven to regard as the plainimeaning and necessary construction of Section 3(5). Two considerations have, at one time or another, been adduced on the language of Section 3(5) which were suggested to avoid the construction of which I am in favour. One was based upon the use of the word 'rents' and seems at one time to have found favour with the learned Chief Justice. That was given up before us and admitted to be unarguable. The other argument was that the words in Section 6 ' in the estate of such land-holder' must be considered for the purpose of that section as qualifying the definition of 'land-holder' by the previous definition of 'Estate.' I do not regard that either as a reasonable or even possible construction. It seems to me that the words 'such land-holder' can only be construed as meaning ' land-holder as defined in this Act.' On this short ground I base my agreement with the conclusion of my brother Ayling, J. and I prefer to rest there and abstain from going into the wider grounds covered in the arguments and in many judgments which were cited before us. While 1 agree generally with the reasoning of Ayling,. I would be taken as not expressing any opinion as to whether the result does or does not tend to defeat the general purpose of the Act or whether it is desirable or undesirable. To express opinions on these points would require a much greater knowledge not only of the Act but of the conditions of land tenure in this Presidency generally and under the Act than I, as a Judge whose work has been almost exclusively on the original side of this Court, could possibly pretend to possess. I think that the words of the section can only have one plain meaning; and I am constrained to give effect to it whether the result is to be welcomed or regretted. If it is to be regretted it can be put right by the legislature. In the result I agree that the Letters Patent Appeal should be allowed and the suit be dismissed with costs of 3rd defendant throughout.
Kumaraswami Sastri, J.
16. The question raised in this appeal is whether the provisions of Section 6 Clause (1) of the Estates Land Act apply to a post settlement inam of a portion of a village when the grant by the Zemindar to the Inamdar comprises of both the melvarair. and kudivaram on a permanent kattubadi so as to confer on the Inamdar's tenants rights of permanent occupancy. The lands comprised in the suit are situate in the village of Thandipuram on the permanently settled Zemindar of Surangi and were granted by a former Zemindar to a predecessor in title of the plaintiff of a fixed kattubadi of Rs. 15 a year. It was found by the Lower Court that the cadjan document which is alleged to contain the terms of the inam grant was not proved to be genuine and that the grant in inam was subsequent to the permanent settlement. These findings were accepted by the Chief Justice and Sadasiva Ayyar, J. The learned Judges agreed in holding that the grant must be presumed to be a grant of the Proprietary right in the suit land including the kudivaram as well as the melvaram interest, but differed as to whether the Estates Land Act was applicable as between the Inamdar and his tenants when the land was situated in a permanently settled estate and consisted of only part of a village and the Inamdar was the owner of kudivaram as well as the melvaram. The Chief Justice was of opinion that the provisions of the Act did not apply to minor mams on the ground (1) that such inams did not fall within the definition of estate in Clause 2 of Section 3, (2) _.that an inamdar was not the owner of the estate, (3) that rent is defined in Clause (11) as whatever is lawfully payable to a landlord for the use or occupation of land in his estate and as the estate does not belong to the Inamdar the sum payable by the tenant to the Inamdar cannot be rent within the definition, (4) that the definition of land-holder in Clause 5 cannot apply to Inamdars as they are not owners of the estate and as what' they collect from tenants is not rent within the definition in Clause (11), the Inamdar cannot be said 'to. collect rent by virtue of the transfer within the meaning of Clause 5(5), that the Legislature having carefully excluded minor inams from the definition of estates in Clause 2 of Section 3, it cannot be reasonably held that, they rendered the definition Clause 2 nugatory by defining land-holder in such a way as to include lnamdars. Sadasiva Aiyar, J. while agreeing that a minor inam cannot fall within the definition of estate in Clause 2, was of opinion that the definition of a land-holder was sufficiently wideito include minor lnamdars as they owned the part of the village granted to them and collected rents by virtue of the transfer in inam to them. The learned Judge was not prepared to dissent from the series of decisions that took the view that ' minor darmilla lnamdars were land-holders.
17. I am of opinion that a minor Inamdar is not a land-holder where the grant to him is of both the Varams.
18. It is clear that the inam such as the one in suit does not fall within the definition of an estate as defined in Clause 2 of Section 3 of the Estates Land Act as it does not come within any of the Clauses (a) to (e). As pointed out in Narayanasami Naidu v. Subramanyam (29 M.L.J. 478 the definition in Sub-clause 2(d) was obviously intended to exclude from the definition of 'Estate' what are known as mihor inams, namely, particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries.'
19. In order to bring a, minor Inamdar within the definition of land-holder he must either (1) own an estate or part thereof, (2) be a person entitled to collect the rents of the 'whole or any portion of the estate by virtue of any transfer from the owner or his predecessor-in-title or under any order of a competent Court or of any provision of law.
20. I do not think the Inamdar like the one in suit can be said to be the owner of an estate or part thereof. In Maharajah of Vizianagaram v. The Collector of Vizagapatam 28 M.L.J. 278 it was held that grantees holding under prepetual grants subject to the payment to the Zemindar of a small rent under the names of Jodi, kattubadi or poruppu are not owners or proprietors of the land granted to them. Though the decision was in connection with the provisions of the Madras Land Revenue Assessment Act (I of 1876) the reasoning proceeds on general grounds and that ratio decidendi is equally applicable to cases under the Estates Land Act.
21. The cases under consideration fall under two heads (1) where the grantee is already the owner of the kudivaram and (2) where the land granted was in the absolute disposal of the Zamindar owing to there having been no occupancy ryot on the land at the date of the grant. Where the grantee of the melvaram was himself the occupancy ryot it is difficult to see how the grant of the melvaram interest to him can divest him of that character so as to convert his sub-tenant into permanent occupancy ryots. It is clear that tenants let into possession by occupancy ryots are not governed by the provisions of the Estates Land Act as a sub-tenant of an occupancy ryot is not a ryot within the meaning of the Act which defines a ryot as a person who holds for agriculture ryoti land in an estate on condition of paying to the land-holder the rent which is legally due on it. The whole policy of the Act was to give statutory recognition to the presumption as to the rights of permanent occupancy of ryots in Zaniindaries laid down in Cheekati Case 1 and to prevent devices whereby the right may be defeated. Section 6 which confers occupany rights on ryoti land not being old waste expressly provides that a person having a right of occupancy in land does not lose it by subsequently being interested in the land as a land-holder or by subsequently holding the land on ijara or farm.
22. I think it would be reasonable to hold that the mere fact that an occupancy ryot gets an interest in the melvaram would give sub-tenants (who till then had no rights of occupancy and who could be evicted) rights of permanent occupancy and put the grantee of the melvaram in a decidedly worse position. In all such cases when there is no merger under any of the provisions of the Act the right of the inamdar as an occupancy ryot remains in him, and the effect of his acquiring an interest in the melvaram is not to extinguish his rights as an occupancy ryot and convert him into a land-holder so as to bring his sub-tenant within the provisions of Section 6 Clause (1). Muthu Reddi v. Muthu Venkatapathi Reddi : (1916)31MLJ354 and the Zamindar of Sanivarappet v. The Zemindar of Vallur, I.L.R. (1915) Mad. 944 are authorities for the view that the explanation to Section 6 prevents any results that would arise from a merger of the melvaram and kudivaram rights in the same person.
23. In the second class of cases when the grant is of both warams to the land having been in the absolute disposal of the Zamindar such grants where they are minor inams (or grants of particular extents of land in particular villages as contrasted with grants of the whole village or villages) are in the great majority of cases grants in consideration of services past or future and the objects of the grantor is to allow the grantee to enjoy the lands on favourable terms and not to create minor land-holders. The legislature has therefore been careful in so framing the definition of the word 'estate' as to exclude such minor inamdars and I agree with my Lord in thinking that it could not have been the intentien of the legislature which carefully excluded minor inamdars when framing the definition of 'estates' to let them in bodily by virtue of a definition of a land-holder a few lines lower down. It is no doubt Itrue that if the plain language of the section leaves one no other alternative the result cannot be helped but in construing the definition of land-holder regard must be had to the definition of estate and any conflict must if possible be avoided. If the primary object in granting minor inams is to confer on the grantee the right to occupy the land permanently at a favourable rate (whether such a rate is called rent or kattubadi) I think the two interests must be kept distinct with the relations between the minor inamdar and his tenants. This distinction is clearly brought out in Gajapathi Maharaja Garu v. Sondi Prahlada Binoyi Ratho (1914) M.W.N. 179 and Idubilly Siyaddi v. Sri Rajah Viswaswara Nis-sanka (1915) 18 M.L.T. 142 where it was held that the resumption of minor inams did not entitle the Zamindar to eject the inamdar from the lands granted. Ayling, J. observed in the former case. ' The favourable rate of rent paid by the defendants may be regarded as the recompense for their services: the tenant's profits are the recompense for his labour as a cultivator, and there is no reason why these defendants should be placed in a worse position in the way of permanence of tenure than any other tenant. ' In Second Appeal No. 986 of 1917 certain lands were granted by the Zemindar of Ettiapuram to one Pettammal and she granted it as inam to certain josyers from whom 1st and 2nd defendants claimed by right of purchase. The plaintiffs who claimed right to the lands were found by the District ' Judge to have been in possession for several years as tenants paying rent. It was also found that the original grant was to the land and not of the melvaram only. It was contended in Second Appeal that the plaintiffs were permanent tenants by virtue of Section 6. This claim was disallowed. Spencer, J. observed ' Again it is contended that the plaintiffs by being in possession in 1908 when the Madras Estates Land Act came into force must have acquired the status of occupancy ryots under Section 6 of that Act. But they have not shown that the land in dispute was ryoti land not being old waste and that they were paying rent upon it to the land-holder. To assume the latter proposition would involve the finding (1) that Pettammal to whom the Zamindar admittedly made a gfant more than 50 years ago was herself a person owning an ' estate ' or part thereof within the meaning of Section 3 Clause 2 and 5 of Act I of 1908 and (2) that the Zemindar did not grant her kudivaram right.'
24. I may in this connection refer to the explanation to Section 8 of the Estates Land Act (dealing with the merger) which provides that ' notwithstanding anything obtained in the section where, before or after the commencement of this Act, the kudivaram interest in any land comprised in an estate falling within Clause (d) of Sub-section 2 of Section 3 has been or is acquired by the Inamdar such land shall cease to be part of the estate.' It will thus be seen that the legislature in the explanation to Section 6 dealing with cases of the acquisition of the interest in the melvaram by a permanent occupancy ryot and the explanation to Section 8 dealing with the acquisition of an interest in the kudivaram by the inamdar prevented the acquirer in either case from losing his right in the kudivaram by the grant of permanent tenancy to the sub-tenants of the acquirer. It was never the intention of the ' Legislature that persons who already acquired right of permanent occupancy or who acquired it by virtue of the inam grant should lose the benefit simply because they get an interest in the melvaram as well.
25. Where the grant is of both the warams or when the kudivaram holder acquires rights in the melvaram it would I think be straining the language of the section to hold that the grantee collects rents from himself by virtue of the grant of melvaram. I think the definition of land-holder in Section 3 Clause 5 can only be invoked if at all when the transfer of the melvaram is to a person who does not own the kudivaram which is in somebody else. In grants of both the warams in cases of minor inams the object of the grant is to enable the grantee to enjoy the kudivaram rights on favourable terms. If the amount the grantee has to pay can be regarded as a favourable rate of rent or if the effect of the grant cannot be treated as a transfer of the right to collect rent owing to there being no person already paying it whose liability is transferred it is clear from the decision of the Full Bench in Marina Veerasamy v. Boyinapalii Venkatrayudu (1919) 39 M.L.J. 225 that the tenants of 'the grantee would not be governed by Section 6 Clause I and acquire a permanent right of occupancy. Remission of rent wholly or in part cannot be said to be the transfer of the right to collect rent and the fact that instead of stipulating for rent the grantor requires payment of kattubadi would equally not be the transfer of the right if at the date of the grant there was no ryot in possession paying rent and it was the grantee who was the person to enjoy the kudivaram either by cultivating the land himself or letting it out to others. If after having got the kudivaram right from the Zamindar the inamdar lets the land to tenants he collects rents not by virtue of the grant of the melvaram right but by virtue of the contract between himself and his sub-tenants just as he would have done if he had been only an occupancy ryot and had sub-let the land.
26. When a minor inam consists of the grant of both the warams. I think it is against the whole policy of the Act to treat the inamdar as a land-holder and deprive him of the right of enjoying the land to the best advantage either by cultivating it himself or letting it out to others. I am of opinion that where he lets the land to others the. section applicable is Section 19 which provides that the relations between a ryot and his tenants or between a land-holder and a tenant of his private land and the rights of any other owners of land are not except as otherwise specially provided in the Act to be regulated by its provisions.
27. When a minor inamdar has both the warams either by virtue of a grarrt of the melvaram while he was the owner of the kudivaram or by virtue of the grant of both the warams to him owing to the land having been at the absolute disposal of the Zamindar at the time of the grant, I agree with my Lord in thinking that he is not a land-holder within the meaning of the Act and that the provisions of the Act do not apply so as to give his tenants occupancy right under Section 6 Clause I of the Act.
28. The decision of the Chief Justice being in my opinion right, I would dismiss the Letters Patent Appeal with costs.