1. The point for decision in this case is whether the exception to Section 8 of the Madras Estates Land Act applies to the surrender of the Kudivtiram right by a tenant to his landlord, leading to the result that the land ceases to be part of the estate. The unhappy wording of Sections 8 and 6 of the Act makes the question a very difficult one to settle, and Benches of this Court have in consequence taken varying views on the meaning of the exception.
2. The wording of the S. as it stands barely makes sense. A captious critic might contend that 'shall cease to be part of the estate' means 'shall cease to be an mam or the inamdar's property at all' which is absurd. It also seems absurd to speak of the acquisition by an inamdar of the kudharam interest 'before... the commencement of this Act' resulting in the land ceasing to be part of the estate, when ex hypothesi the Act and therefore the definition of ''estate' under it were non-existent at the time of the acquisition. And this anomaly applies to the land in this case since the surrender was in 1888. I presume the language is meant to imply in a case of this kind that the land does not form part of the Estate and therefore never was, and never can be, within the operation of the Act.
3. The real point, however, is whether such a surrender falls within the terns 'acquired' in the exception. It is argued on one side that 'acquired' is confined to the modes of passing of the kudivaram right from the ryot to the landholder mentioned in the section (section 8), to which the exception is appended, that is, 'transfer, succession or otherwise.' It is contended on the other side that the phrase 'or otherwise' will include a case of surrender, and that, even if it does not, the language used in Section 66(2) implies that such a surrender is a method by which the landholder acquires an occupancy right with such effect that he can pass it on to a ryot, To this it is answered that 'or otherwise' can only import a species of passing of the kudiaram right ejusdem generis with transfer or succession, and that the position of the phrase, 'surrendered or abandoned' in Section 6(2), in juxtaposition to 'comes into the possession of the landholder,' seems to imply that by surrender or abandonment the kudivaram right does not come into the possession of a landholder but remains suspended in the air, until another ryot is admitted to the land, and that therefore these terms cannot be methods of acquisition of that right by an inamdar.
4. It must be admitted that the loose language employed in these sections gives plausibility to either view, and one has to decide the case rather on the broad principles of the sections than on their actual wording. Section 8 as a whole is obviously intended to cover cases in which the occupancy right is transfer red to or comes into the possession of the landholder, and to prevent him in such cases from using that merger to destroy the character of the land as ryoti land. That is, a landlord is forbidden to become his own occupancy tenant. It was evidently considered that in normal cases the landholder would be bound to admit and would admit, another ryot to the land, and that ryot would by the very fact of admission step into the occupancy right left which the landholder is forbidden to hold as such. But, these are certain exceptions to the rule. One is set out in sub-section(4) by way of giving the landholder some compensation for value spent before the passing of the Act on acquiring the kudivaram right, and by way of giving some effect to cases of succession both before and after the Act. The exception to the Act was, I think, intended to exempt inamdars alone among landholders from the application of this principle that the landholder cannot be his own occupancy tenant, and to permit him to be so when the rights of third parties were not adversely affected. The effect of the exception, whatever its language is to take what was ryoti land, in which the inamdar had not, ex hypothesi the kudivaram right, out of the operation of the Act altogether, when the occupancy right had passed to the inamdar so that it ceased to be ryoti land and the inamdar could henceforth deal with it unhampered by any of the provisions of the Act.
5. That being so, there seems no obvious distinction in principle between the passing of the occupancy right from the ryot to the inamdar by sale, gift or succession and its passing by a deed of surrender. The test is obviously not the passing of consideration, because in a case of succession there is no consideration. Nor is it a deed of transfer or a voluntary act, because in the case of succession there may be no deed and in the case of an intestacy there is no voluntary act. 1 would hold then prima facie that when a ryot has, by a voluntary act, transferred his right to the inamdar or when the passing of that right is the result of the legal right of inheritance, the inamdar has 'acquired' that right within the meaning of the phrase used in this exception. To put it in a different form, the phrase 'or otherwise' in Section 8(1) will include the case of a surrender.
6. The case of an abandonment is different and more difficult and fortunately we are not concerned with it here. In such a case it is open to argument whether the occupancy right automatically reverts to the landholder at all. That a right of occupancy can remain in suspense vested in no one, but ready to descend on the next comer is apparent from Section 10(2) and may also be deduced from a consideration of the conception of ordinary unoccupied ryoti waste, the right of occupancy to which comes into being on the admission by the landholder of a ryot thereto. I would leave that question open here.
7. Against the view thus derived from the general scope of Section 8 that the term 'acquired' includes all cases whereby the right passes by operation of a legal form of transfer from the ryot to the inamdar we are referred to the language of Section 6(2). It is argued that having regard to that language, cases falling within Section 8(4) and the exception to Section 8 are species of methods whereby the right of occupancy 'comes into the possession of the landholder' and are categorically distinguished from cases of surrender and abandonment. There is much to be said for the view that abandonment is not a method by which that right 'comes into the possession of the landholder.' But it is difficult to see why surrender, especially a surrender by deed as in this case is not, and I must simply record my opinion that the language of Section 6(2) was not intended to convey the contrary. It is moreover doubtful if that language does draw the categorical distinction pleaded, for while the essence of the rule laid down in Section 8(4) is the method of transfer, the essence of the exception is not the method of transfer but the party in whose favour the transfer is made. One cannot reasonably contrast a mode of transfer with a transferee. Again as pointed out by Mr. Varadachari, it was unnecessary to include the exception to Section 8 in Section 6(2), because by that exception the land is taken out of the operation of the Act altogether and therefore Section 6 or any other S. in the Act will not apply to it.
8. Again, if one gives Section 8(1) its full meaning and 'otherwise' does not include surrender,then any and every landholder acquiring by surrender by which certainly whatever right the Occupancy ryot had is passed on to him can hold the land as a ryot. This is, 1 feel sure, contrary to the principles of the Act.
9. The rulings of this Court have not been uniform on the interpretation of this exception. In Suryanarayana v. Patan-na 26 M L J 99, two learned Judges Sadasiva Aiyar and Spencer, JJ. differed as to whether surrender is included in the word 'acquired.' In Ponnusamy Padayachi v. Karuppudayan 26 M L J 285, a third Judge, Miller, J., agreed with Spencer, J., and agreed that surrender is so included. In Venkata Sastrulu v. Sita-ramudu 26 M L J 585 Seshagiri Aiyar, J. agreed mainly with Sadasiva Aiyar, J. and in Zamindar of Nuzvid v. Lakshminarayana ILR (1921) M 39 : 43 M L J 161. Napier, J. expressed agreement in this view. That, however, was a case not of surrender but of abandonment, into which, in my view different considerations will enter. In an un-reported case, S.A. No. 1244 of 1919, Oldfield, J. adopted the view held by Spencer, J. There is thus a clear conflict of authority; and that being so, 1 think it is necessary to refer to a Full Bench the question whether the word 'acquired' in the exception to Section 8 covers a case of 'surrender.'
Madhavan Nair, J.
The defendant is the petitioner.
10. The question for decision in this case is whether the suit land is part of an 'estate' within the purview of the Madras Estates Land Act and the suit is not triable in a Civil Court. The Lower Courts have found that the suit village is an estate under Section 3 sub-section (2), Clause (d) of the Estates Land Act, and this finding has not been attacked before us. It has also been been found that the kudivaram interest of the tenant has been surrendered by deed to the landlord in 1888. The learned vakil for the plaintiffs (respondents) argues that, though ordinarily the jurisdiction of the Civil Court should be held to have been ousted because the suit village is an estate under Section 3, sub-section (2), Clause (d), still the Civil Court has jurisdiction, because, by reason of the surrender, the kudivaram interest in the village has been acquired by the inamdar within the meaning of the exception to Section 8 of the Act and the land has, therefore, ceased to be part of an estate. It is argued on behalf of the petitioner that surrender is not a mode of acquisition of the kudivaram interest within the meaning of the exception.
11. The short question for consideration is whether the inamdar in this case has acquired the kudivaram interest in the suit land within the meaning of the exception to Section 8 of the Estates Land Act. If he did so acquire, the land has ceased to be part of an estate and the Civil Courts have jurisdiction to try the suit. The exception to Section 8 runs as follows: 'Notwithstanding anything contained in this S. 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.' Mr. Krishna-swami Aiyar argues that this provision being an exception to Section 8, the word 'acquired' referred to in it must obviously refer to one of the modes of the acquisition of kudivaram interest contemplated by sub-sections (1) to (4) of Section 8 which do not refer to acquisition by surrender as a mode of acquiring the kudivaram interest. Reference has also been made to subsection (2) of Section 6 of the Act to support the above argument.
12. Section 8 of the Estates Land Act deals with the merger of Occupancy right. Generally stated, sub-section (1) deals with the merger of the entire interests of the landholder and the occupancy right by transfer, succession or otherwise. Subsection (2) deals with the transfer of the occupancy right in any land to a co-sharer. Sub-section (4) deals with the acquisition by the landholder of the kudivaram interest by transfer lor valuable consideration or by inheritance. Surrender is not specifically mentioned as a mode of acquisition in the section. The kudivaram interest of the tenant acquired in any of the aforesaid ways does not give the landholder any private rights of ownership, unless the land-holder happens to be an inamdar and acquires the kudivaram interest in the way indicated in the various sub-sections referred to above. This is the interpretation put upon the exception by the learned vakil for petitioner. Sub-section (2) of Section 6 of the Act relied on in support of this interpretation is in these terms: 'where land held by a ryot with a permanent right of occupaney is surrendered or abandoned or, save in the cases falling within sub-section (4) of Section 8, and the exception to Section 8, comes into the possession of the landholder....' It is pointed out that in this sub-S. acquisition by surrender is put in a different category from the acquisition under the exception to Section 8 The question is not free from difficulty, but I am inclined to hold that the arguments of the learned vakil for the petitioner should not be accepted. The object of Section 8 is to preclude the landholder, who acquires by transfer, succession or otherwise the occupancy right in a holding, from treating it as his private land and preventing the tenant from acquiring a right of occupancy in it. But an exception has been deliberately made by the legislature in the case of an inamdar whose village is an estate tailing within Clause (d) of sub-section (2) of Section 3, when he acquires the kudivaram interest in any land comprised m the estate. When the intention of the legislature was to show this exceptional favour to inamdars departing from its general policy, I do not see any reason why giving effect to this intention in all its fullness should be defeated by placing a narrow interpretation on the word 'acquired' so as to ex-elude acquisition by surrender. No reason is suggested for thus excluding 'acquisition by surrender' from the scope of the exception. No doubt, the clause appears as an exception to Section 8; but in giving effect to the intention of the legislature to its fullest extent, it is not right to uphold the narrow construction suggested by the learned Vakil for the petitioner. Even if the exception is to be confined in its operation to the modes of acquisition mentioned in Section 8, it seems to me that the word ''otherwise' in the expression 'by transfer, succession or otherwise' would include within it, acquisition by 'surrender.' In interpreting the word 'otherwise' it is difficult to apply the ejusdem, generis principle, for the mere reason that there is no similarity in the two modes of acquisition mentioned, namely, transfer and succession, except that, in the result, the landholder obtains a kudivaram interest. The one method denotes a voluntary act and consideration; the other method is purely involuntary and has nothing to do with consideration. In such circumstances, it is difficult to apply the ejusdem generis principle of construction in finding out what is meant by 'otherwise.'
13. The contrast between the right obtained by the landlord through 'surrender' and the right to kudivaram obtained legislature intended that, in construing the sub-section (2) of Section 6 of the Act supports to some extent the argument advanced on behalf of the petitioner. Sub-section (2) of Section 6 states that in land surrendered or abandoned by a ryot, a landlord cannot obtain rights of occupancy before the expiry of ten years. It may be, as pointed out by Miller, J., that by referring to the exception to Section 8 in sub-section (2) of Section 6, the legislature intended that, in construing the sub-setcion (2) of Section 6, we should exclude surrender and abandonment from the methods, of acquisition by which a landholder may acquire in-defeasibly an occupancy right. However that may be, I do not think that it is permissible to adopt a construction of the exception to Section 8 which would, by restricting the meaning of the word 'acquired,' stultify the intention of the legislature in enacting that exception. The difficulty felt in construing Section 6, sub-section (2) and the exception to Section 8 together is due to the loose language employed in sub-section (2) of Section 6. As pointed out by the respondents' learned vakil, reference to the exception to Section 8 in sub-section (2) of Section 6 is unnecessary because by that exception land ceases to be part of an estate and is thus taken out of the Act altogether and no S. of the Act will, therefore, apply to such land.
14. The view advanced on behalf of the petitioner finds support in the opinion, of Sadasiva Aiyar, J. in Suryanarayana v. Patantta 43 M L J 161 but Spencer, J. in the same case dissented from this view. Miller, J. in Ponnuswami Padaiyachi v. Karup-pudayan 26 M L J 285 accepted the view of Spencer, J., while in Zamindar of Chellapalli v. Somayya 27 M L J 718 Seshagiri Aiyar, J. was inclined to follow the views of Sadasiva Aiyar, J. in Suryanarayana v. Patanna 26 M L J 99. Napier, J, sitting with Sadasiva Aiyar, J., held that surrender is not a mode of acquiring kudi-varam interest within the meaning of the exception*. It may be, pointed out that this decision deals with lands in a Zamin-dari. In the latest decision in S.A. No. 1244 of 1919, Oldfield and Spencer, JJ. upheld the view which found favour with Spencer, J. in Suryanarayana v. Patanna 26 M L J 99. As the Judicial opinion is thus divided, I agree with my learned brother that it is necessary to refer to a Full Bench the question whether the word 'acquired' in the exception to S8 covers a case of 'surrender.'
15. I may state that the question whether abandonment is a mode of acquiring kudharam interest by the inamdar within the meaning of the exception to Section 8 does not arise in this case though Mr. Varadachari for the respondent was willing to concede in the course of his arguments that acquisition by abandonment does not come within the scope of the exception.