1. The question that comes for decision in these Civil Revision Petitions is whether two suits (O. S. Nos. 121 and 122 of 1916) instituted for the recovery of the rent or damages for the use and occupation of lands enjoyed by the defendants for three years before suit fall within the cognizance of a Revenue or a Civil Court. The initial presumption is in favour of the civil court having jurisdiction (See Seetharn Naidu v. Rami Naidu I.L.R. (1909) Mad. 208. The suits were instituted in a civil court and the onus lay on the defendants to show that that Court's jurisdiction was ousted by Section 189 of the Madras Estates Land Act, which reserves to Collectors the jurisdiction over suits and I applications of the nature specified in the schedules to the Act. In schedule A item No. 8 relates to suits by a landholder to recover arrears of rent under Section 77. There. fore the answer to the above question depends on the further question whether the plaintiffs are landholders, as the word is denned in Section 3(5) of the Act. The District Munsif held that the plaintiffs were landholders and directed the plaints to be returned for presentation in a Revenue court, and on appeal the District Judge confirmed this order.
2. It is not pretended that the suit lands themselves are major inams or whole inam villages constituting an estate within the definitions in Section 3 Clause 2 Sub-clauses (d) or (e), but they lie within a Zamindari, which is an estate under Sub-clause (a). ' Landholder' is denned in Clause 5 of Section 3 as a person owning an estate or part thereof and as including every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner.
3. The plaintiffs hold the suit lands by virtue of a grant from the zemindar of Guttinadeevi made in the years 1837 and 1839 as evidenced by the pattas, Exhibits A series, the fetters, Exhibits B series and the check namas Exhibits C series.
4. The thing of first importance is to see what it was that the plaintiffs got by this grant. The statement in the documents that the lands were part of the never cultivated waste lands of the estate, the use of the word 'patta' which is defined in Section 2 of Regulation XXX of 1802 as an engagement between proprietors of land and their cultivators or ryots, the allusion to Section 15 of that Regulation which deals with leases for a term of years or in perpetuity for clearing and bringing waste lands into cultivation, and the direction to cultivate the lands and enjoy the produce for generations of sons and grandson's are a indications that the transaction was, of the nature of a permanent lease, and that the plaintiff's ancestors thereby got 'the kudivaram or occupancy right in the land. The imposition of a low rent which is described as a 'grant' assessment, the description of the grant as being that of a manyam and its comparison to a gift to a deity all import that the zemindar simultaneously parted with a part of hisimelvaram or landlord's share of the produce. Apart from the significant of the words used in these documents, it has been recently held by a Full Bench in second appeal No. 1878 of 1919. Muthu Goundan v. Perumal Iyen 40 M.L.J. 429 that in the case of inams the Court should start with a presumption that the grant was of both vararas. Several decisions of this Court, prominent among which are those in Ponnusamy Padayachi v. Karuppudayah 26 M.L.J. 285 and Upadrasta Venkata Sastrulu v. Divi Sitaramudu .L.J. 585 have made familiar the rule enacted by Section 8(1) of Act I of 1908 that a landholder does not acquire the status of a ryot by merger of his entire interests as landholder with those of an occupancy ryot; and there is a reported case in the Zemindar of Sanivarapet v. The Zemindar of South Vallur I.L.R. (1915) Mad. 944 and a recent Full Bench Case in second appeal No. 65 of 1919 Marina Veeraswami v. Boyyinapalli Venkatrayudu 20 M.L.J. 417 which dealt with the position of a ryot who subsequently became interested in the melvaram which brought into play the provisions of the explanation to subjection 6 of Section 6. So the principles of once a landholder, always a landholder' and 'once a ryot, always a ryot' may be said to be fairly well established.
5. The present case however is one of a simultaneous grant of the kudivaram and a part of the melvaram, to which there are no provisions' in the Act directly applicable. But there can be no doubt that if the plaintiffs were not the less ryots by reason of their getting the suit lands on a favourable tenure, Section 19 operates to take their relations with their tenants out of the provisions of the Madras Estates Land Act.
6. I will now proceed to consider whether the plaintiffs can be described as persons owning an estate or part thereof, or as persons entitled to collect the rents of the whole or any portion of the estate by virtue of a transfer from the owner. I have already noted the resemblance of the grant in their favour to the grant of a permanent lease. It was held in Kska-trabaro Bissoyi v. Harikrishua Naidu 20 M.L.J. 417 and again in the Maharaja of Viziana garam v. The Collector of Vizagapatam 27 M.L.J. 278 following the Privy Council case in Venkateswara Zettapah Naidu v. Alagoo Moothoo Servagaran 8 M.I.A. 327 that the grant of a permanent lease of a portion of a zemindari was not a transfer of ownership. The Privy Council were dealing with a perpetual lease at a low rent of a distinct part of a zemindan and they held that it could not be considered as a transfer of proprietary right in the whole or any part of a zemindari under Section 8 of Regulation 25 of 1802 without doing violence to the language. It is clear that the transfers of proprietary right to which that section applied were very different in nature from the leases for a term or in perpetuity referred to in Section 15 of Regulation XXX. The reference to the latter section in exhibit A becomes thus very significant as showing that what was given was the interest of a ryot rather than that of an intermediate landholder. On the other hand it Was held by a full Bench in Nellayappa Pillai v. Ambalavana Pandarasannadhi I.L.R. (1903) Mad. 465 that a person who takes from a zemindar a permanent lease of the zemindar's melvaram rights was a landholder under the former Rent Recovery Act (VIII of 1865) as he becomes thereby a farmdr of the rent under a landholder and so belongs to the class of farmers or izaradars referred to in Section 1 of that Act and in the Explanation to Sub-Section 11 of Section 3. of the present Act. The present plaintiffs are not farmers under a zemindar as they are not entitled to collect the entire rent due to the zemindar from the whole or any defined portion of his estate. As observed by the learned Chief Justice in Gadadharadoss Bavaji v. Suryanarayana Patnmk : (1920)38MLJ342 . 'An inamdar who holds under a zemindar subject to the payment of quit rent to him is not the owner of the Inam land in the ordinary legal meaning of the word owner'.... 'So long as a full owner in making a grant reserves an interest to himself as by way of rent, he and his successors continue to be owners, no matter how insignificant may be the interest he reserves for himself.' This interpretation of the meaning of the word 'owner' followed a prior decision by the Chief Justice and Kumaraswami Sastry, J. in The Maharaja of Vizinagaram v. The Collector of Vizagapatam I.L.R. (1914) Mad. 1128 and I respectfully agree with their opinions.
7. Sadasiva Ayyar, J. who dissented, was unwilling to depart from the principles of the decisions, in Appalanarasimhulu v. Sanyasi I.L.R. (1912) Mad. 33 and Kanti Venkanna v. Chelikani Rattta Rao Garu I.L.R. (1914) Mad. 1155. When this ease came on appeal to a Bench of three Judges in L.P.A. No. 2 of 1920. Kumaraswami Sastry, J. agreed with the Chief Justice and expressed an opinion that a minor inamdar was not a landholder when the grant to him was of both varams, and although, as a result of the agreement of Ayling and Coutts Trotter, JJ. with the opinion of Sadasiva Ayyar, J, the appeal was allowed, it is clear from the judgment that neither Ayling, J. nor Kumaraswamy Sastry, J, was able to reconcile the position of a grantee of an interest in the nielvaram who was himself the occupancy ryot with the status of one who is entitled to collect rents by virtue of a transfer from the owner, for, as Ayling, J. remarked, 'it would be pedantry to speak of the grant as a transfer to the ryot of the right to collect rents from himself.'
8. Another difficulty noticed by the learned Chief Justice is that of treating the payments made by tenants to an inamdar for use and occupation of land which is not the inamdar's estate as 'rent' as defined in Clause 11 of Section 3.
9. I have no doubt that when the Rent law of the Presidency was remodelled it was intended to preserve the old distinctions between landholders and tenants, while giving statutory recognition to the occupancy right of tenants in large estates which had become firmly established by numerous decisions of this High Court. Under Act VIII of 1865 a 'tenant' was a person who paid rent to a land-holder and thus corresponded to a 'ryot' under the present Act. It was held in Surya-narayana v. Appa Ran I.L.R. (1892) Map. P. 40 that an inamdar with a right of occupancy did not acquire the status of a landholder in consequence of his subleasing the land to others but he retained the status of tenant. Similarly undo the present Act a Full Bench of five Judges in Marina Veeraswami v. Boyyinapalli Venkatarayadu : (1920)39MLJ225 , declined to treat the remission of a portion of the rent payable to a zemindar by a ryot as conveying to him any right to collect rent from third persons.
10. When the effect of, Section 3 Clause (2)(d) read with Clause 5 is that a major inamdar who owns the kudivaram is not a land-holder, it is diffiicult to attribute to the legislature an intention to put minor inamdarswho own the kudivaram into the position of land-holders under the Act.
11. I am of opinion that when a ryot sublets the land in his enjoyment to subtenants, the payments he collects from them by agreement with them are not ' rent' within the meaning of the phrase in Section 3(11) of the Madras Estates Land Act, and that the plaintiffs in this case who acquired by their grant from the zemindar a fight either to cultivate the land themselves or to sublease it, as one of the incidents arising out of the unconditional nature of the grant, cannot be said to have thereby become transferees of the title to collect the rents of the whole or any portion of the zemindari estate.
12. From a consideration of the reported cases upon the meaning of the word 'land-holder' in Act I of 1908 one axiom clearly emerges. A mere interest in a portion of the melwaram as by payment of jodi or quit rent without a right to collect rents from the ryots of the estate will not convert a ryot into a landholder' under the Act.
13. The right to collect rents is an attribute of full ownership of an estate. In the present case that right has remained all along with the zemindar. What the zemindar now collects from the plaintiffs is rent, though not the full rent. If he were to resume this darimilla inam for a breach of the conditions of the grant or for failure of heirs or upon relinquishment of the inam, the Zemindar would collect the full rent once more.
14. I think that much of the difficulty in applying the provisions of the Act to the facts of actual cases and a good deal of the unfortunate differences of opinion among Judges who have had to apply them, has arisen out of 'the Vagueness' of the definition of ' landholder' in Section 3(5) and the want of illustrations to the section.
15. When once a sharp line of distinction is drawn between persons who merely possess an interest in a portion of the landholder's share of the produce or melwaram and those who have derived a title from the estate owner to collect the entire rents accruing to him over the whole or a defined portion of his estate, the cases that arise in practice will naturally group themselves on one side or other of the dividing line.
16. The decisions in Appal an ara'sinihalu v. Snnyasi I.L.R. (1921) Mad. 33 and Brundavana Chendra Horischandana Jaggad Raja Bahadur v. Proghada Ramayya : (1914)26MLJ600 may be justified on the ground that the right to collect rents passed in those cases, while 38 Mad. 1155 may be wrong. In this case the admission of the plaintiffs in paragraph 4 of the plaint that they are entitled to the kudivaram land the melvaram rights does not by itself suffice to constitute them landholders. I consider that the civil courts below were in error in treating them as landholders and that the District Munsif's order declining jurisdiction and returning the plaint should be set aside and he should be directed to take the suits on file and dispose of them himself.
17. Costs throughout to abide and to be provided for in the final decree.
18. These are petitions to revise the order of the District Judge of Godavari confirming the order of the District Munsif of Amalapuram by which the plaints in O.S. Nos. 121 and 122 of 1916 on the file of that court were directed to be returned for presentation to the proper court. The suits were for rent or damages for use and occupation of certain lands situate in the Guttinadeevi Zamindari.
19. The District Munsif held and the District Judge did not disagree with him, that the suit lands were ryoti lands; and the question for determination is whether the grantees of these lands are or are not land holders within Section 3(5) of the Madras Estates Land Act. The grants are contained in Exs. A, A1, and A2. Ex. A is dated 24th June 1839 and purports to be a patta by the zamindar giving 22 putties of land to the grantee as manyam ' out of the never cultivated waste lands of Guttinadsevi Zemindari' under Clause 15 of Regulation 'XXX of 1802 settling the tirva (i.e., rent assessment or tax) at Rs. 1-0-0 per putti. 'You shall pay us the tirva of Rs. 22-0-0 settled for each year for the said 22 putties, raise crops on the said lands and enjoy the usufruct thereof by generations and remain happy'. Ex. A 1 is a grant of 3. putties of land as manyam ' out of the never cultivated waste or Barijar lands for coming under your permanent (or more correctly that you may enjoy permanently) you shall pay us the tirva of Rs. 12 percept i.e. Rs. 4 per putti settled for each year for the said 3 putties, raise crops an: the said lands and enjoy the usufruct thereof by generations of sons and grandsons and remain happy.''Ex., A 2 is. to the same effect a grant of 8 putties of land at Rs. 4 per putty. Exs. B, B1 and B2, are ' instructions issued to the various karnams by the zamindar to locate the lands granted and to issue checknamas. From these documents it would appear that the grants were manyams or minor inams, amounting in all, to about 150 acres only. They are not grants of whole villages or of any portion consisting of one or more villages' within the wording of Section 3(2)(e). Secondly from the wording of these documents it would appear (and it was not contended before us to the contrary) that they granted permanent leases of the lands. The plaintiffs in those suits as such Inamdars have been held by both the lower courts to be landholders under the Madras Estates Land Act. The' question is whether they are right.
20. The lower courts relied on Appala Narasimhnlu v. Sanyasi I.L.R. (1912) Mad. 33 (Sundara Aiyar and Sadasiva Aiyar JJ.) where it was held that' an inamdar of a portion of a village where the inam consists only of some of the lands in a village granted by a zamindar is a landholder under Section 3(5) though the inam may not be an estate under Section 3(2)(d) and (e). The learned Judges there found that the plaintiff was undoubtedly a person entitled to collect the rents of a portion of the estate granted and that the definition of landholder includes every person entitled to collect the rents of any portion of an estate by virtue of any transfer. The grants in the present case would, no doubt, confer kudivaram right on the grantees and the first question is whether they would confer melwaram right as well. It will be observed that the grants are all of the 'never cultivated waste lands'. This expression occurs in Exs. A, A1. and A2. Therefore at the time of the grants it is beyond question that there were no tenants on the land from whom rents could be collected by the grantee. I am therefore inclined to the opinion that no melwaram right was in fact granted by these documents. If I am right this is a sufficient answer to the question before us. Since the decision of the Full Bench in second appeal 1878 of 1919, however, the presumption in the case of grants of minor inams is that the inamdar has both warams, see Judgment of Ramesam, J.
21. Assuming therefore, that the grants are of both the melvaram and the kudivaram, the further question is, does this make any difference?
22. As pointed out above Appalasarasimhulu v. Sanyasi I.L.R. (1912) Mad. 33 would seem to be a clear authority for holding the grantees to be landholders. This case came under consideration in Gadadharados Bavaji v. Suryanarayana Patnaik : (1920)38MLJ342 (Wallis, C.J. and Sadasiva Aiyar, J.) and led to a difference of opinion between those learned judges. Sadasiva Aiyar, J. adhered to his former opinion on the ground that a majority of the judges of this Court have followed the opinion expressed by himself and Sundara Ayyar, J. in Appalanarasimhulu v. Sanyasi I.L.R. (1912) Mad. 33 and expressed himself as unwilling to depart from this catena of decisions. The learned Chief Justice after examining the terms of the Act very closely comes to the conclusion that it was not the intention of the legislature to apply the provisions of the Act as between the in-tiidar and his tenants where the land is situated in a permanently settled estate and consists of any part of the village and the inamdar is the owner of the kudivaram as well as the melwaram. He says at page 344 ' Therefore as regards inams outside the large estates coming under clauses (a)(b) and (c)(i.e.) of Section 3(2) it is clear that the legislature did not wish, the Act to apply between the inamdar and his tenants where the inamdars owned the kudivaram as well as the melwaram or where the land was only part of a village unless it had been separated from the rest of the village. This being the policy of the Act as regards inams outside large estates as defined in Clauses (a)(b) and (c) the next question is whether it was the intention of the legislature that the act should apply to such inams' when the lands were situated within these large estates'. After observing that it was prima facie unlikely that the legislature should have intended to apply two different rules in two cases without an express provision to that effect, the learned Chief Justice proceeded. 'The legislature having thus expressly made the Act apply as between the inamdar and his tenants in the case of certain inams in these large; estates by virtue of the defintion in Clause (c) the next question is whether it intended to nullify that definition and render it altogether nugatory by adopting a few lines' lower down a definition ' of land holder 'wide enongh in terms td include holders of inams and other under tenures in the larger estates, where the inam in question did not consist of one' Of more villages but as here of a lesser extent. The onus of showing that the definition of landholder had this extraordinary, result is strongly on those who affirm it.' The learned Chief Justice further observes: 'So long as a full owner in making a grant reserves an interest to himself as by way of rent he and his successors continue to be the owners, no matter how insignia fjcant may be the interest he reserves for himself. The learned Chief Justice next addressed himself to the argument that the inamdar must be a landholder because he is entitled to 'collect rents from the definition of rent in Section (311). But he points out that rent is 'a. payment to a landholder for the use or occupation of land in his estate, and cannot therefore include a payment by tenants to an inamdar for use and occupation of land in an estate which is not the inanidar's estate but is the? estate of the superior land holder.' On this difference of opinion between the learned Chief Justice and Sadasiva Aiyaf, J. the case went to Letters Patent Appeal and was heard by Ayling; Coutts Trotter and Kumaraswamy Sastri, JJ. (L.P. Appeal No. 2 of 1920). Ayling, J. was of opinion that the inamdar was a land holder relying principally on the amendment to the Act in Section 3(11). Rent originally in sub-section included quit-rent, jodi etd., payable by an inamdar as such to the land holder. Ayling, J. says '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 wero a ryot respect of the realization of quit-rent.' This would not appear to deal conclusively with the question as to whether the grantee would be a land-holder when not only the melwaram but also the kudiwaram was transferred. The learned judge admits that this fact occasioned him some doubt but he comes to the conclusion that it makes no difference. The judgment of Coutts Trotter, J. is to the effect that the word 'land-holder?' in Section 3(5) inevitably brings a minor inamdar within' its scope on the ground that it cannot be said that a minor inamdar is not a person entitled to collect the rents of a portion of the estate, by virtue of a transfer from the owner. In nay opinion the answer to this is to be found in the passages from the judgment of' the learned Chief Justice quoted above. Kumaraswamy Sastry, J. was of opinion that a minor inamdar is not a land-holder where the grant to him is of both the varams. He says that '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 intention 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'. Again however 'if the amount the grantee has to pay can be regarded as a favourable rate of rent'' (as I think it must be in the case before us) '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 Veeraswami v. Boyinapalli Venkataravudu : (1920)39MLJ225 that the tenants of the grantee would not ba governed by Section 6 Clause 1 and acquire a permanent right of occupancy. It has to be noticed therefore that (while three judges in that case were finally in favour of holding the grantee to be a land-holder two judges were of the opposite opinion.
23. As already stated the opinion of the Bench of three judges was that of a Letters Patent Appeal and riot of a full Bench ; and with respect I prefer to adopt the reasoning of the learned Chief Justice and Kumaraswamy Sastri, J. on this question.
24. It remains to consider some of the cases that have been cited before us. Kanti Venkauna v. Chelikani Rama Rao Garu I.L.R. (1914) Mad. 1155 held per Sadasiva Ayyar, J. and my brother Spencer, J. that although a person might not be the owner of an estate he might still as alienee of part of the melwaram be a landholder within the meaning of Section 3(5). The judgment of Sadasiva Ayyar, J. follows the earlier case Appala Narasimhalu Sanyasi I.L.R. (1912) M. 33 to which he was a party, it has to be observed that in that case the grant clearly alienated Rs. 125 of the annual melwaram. My brother,. Spencer, J. observed that 'if the I plaintiffs come within the definition of land-holder in Section 3(5) the jurisdiction of the revenue court over a suit to eject a ryot was not ousted. It may be possible to hold that the case I is confined to the construction of a particular grant under construction. In any event it does not Carry the matter further than Appalanarasimhulu v. Sanyasi. I.L.R. (1912) Mad. 33 The case in Chippurapalli Appayya v. Raja Kakarlapudi Ramachandra Raju : AIR1915Mad685 lays down that the owner of a portion of an estate is a landholder whether the portion was severed before or after the passing of the Act. The question therefore arises whether a permanent lessee such as the grantee in the case before us an owner or not. The case in Venkateswara Yittiapah Naicken v. Alagoo Mothoo Servaigaran () 8 M.I.A. 327 is an authority that a perpetual lease of a distinct portion of a zamindary is not within Section 8 of regulation XXV of 1802 and is not the sale, gift or transfer.
25. In Nallayappa Pillai v. Ambalavana Pandara Sannadhi (1904) I.L.R. 25 Mad. a reference to the Full Bench was made whether the defendants were entitled to relinquish under Section 12 of the Rent Recovery Act VIII of 1865. The defendant were the permanent lessee of the melwaram rights of the plaintiff who was a zamindar and for the purpose of that section it was held that the defendants were farmers under the inamdar and were not in the position of tenants but of landlords and that they therefore were not entitled to relinquish their interests at the end of the Revenue year. There is no contention that the plaintiffs are farmers here? In the Maharaja of Viziangaram v. the Collector of Vizagapatam I.L.R.(1914) Mad. 1128 it was held that a permanent lessee is not an owner for the purpose of Section 2 of the Madras Assessment of Land Revenue Act I of 1876, nor, is a proprietor, on, owner under Regulation 25 of 1802 or the Madras Hereditary Village Offices Act, III of 1895. It also seems to me that the permanent lessee would fall under the observation of the learned Chief Justice in Gadadharadoss Bavaji v. Suryanarayanu Patnaik : (1920)38MLJ342 that so long as full owner reserves any kind of interest to himself however insignificant it might be, he and his successors continue to be the owners. We were referred to an. unreported case S.A. No. 1169 of 1917 before Spencer and Krishnan,, JJ.. It followed the decision in Kanti Venkanna v. Chelikani Rama Row Garu I.L.R(1914) Mad. 1155 and Krishnan, J held on the construction of the grant in that case that the Dharmakartha of the choultry was a grantee of a fraction of the melwaram. This case again does not take the matter any further than the decision in Kanti Venkanna v. Chelikani Rama Row Garu I.L.R(1914) Mad. 1155 In fact that grant in the unreported cases seems to have been of lands belonging to the same estate as that involved in Kanti Venkanna v. Chelikani Rama Row Garu I.L.R. (1914) Mad. 1155.
26. It cannot in my opinion be said that the authorities are in a very satisfactory state even if the decisions are restricted to the particular grants in question in each case. But with regard to these minor inams we have the reasoned judgment of the learned Chief Justice and Kumaraswamy Sastri, above referred to and it seems to me on an examination of the Act that these opinions are to be preferred to those which conflict with them. I would therefore hold that the plaintiff is not a land-holder within Section 3(S). as either owning the estate or part thereof Or as being entitled to collect the rents by virtue of the transfer.
27. The petitions must be allowed and I agree with the order proposed by my learned brother.