1. These two appeals arise out of an order of the Subordinate Judge, Madurai, made in a reference under Section 30 of the Land Acquisition Act, 1894. An extent of 2 acres 49 cents in R. S. No.169/1 in Tallakulam village, Madurai taluk, has been acquired for Madurai Neighbourhood Project. Rival claims were put forward for the compensation amount. Hence, the Acquisition Officer made the reference under Section 30. The first claimant, Thirulakshmi Ammal, claimed the entire compensation contending that both warams in the land had been granted in inam to the ancestors of her husband for rendering sthanigam and paricharagam service in Kallalagar temple. The executive officer of the Kallalagar devastanam contended that he inam was granted only in favour of the temple for the performance of the services of sthanigam and paricharagam and that the devastanam alone was entitled to receive the compensation under the provisions of the Minor Inams Abolition Act, 1963. The other claimants claimed the entire compensation contending that what was granted was only melwaram in favour of the ancestor of the first claimant, that they were entitled to the kudiwaram interest and that, therefore, they were entitled to the entire compensation consequent on the abolition of the minor inam.
2. The court below held that the first claimant was not entitled to any compensation, but was entitled only to claim either Tasdik allowance or some other allowance provided under the Minor Inams Abolition Act, and should, therefore, approach the Government for necessary relief. The lower court negatived the claim of the devastanam holding that the grant was not in favour of the devastanam and that he devastanam should approach the authorities under the provisions of the Minor Inams Abolition Act for necessary allowance. The court below further held that the entire compensation amount was payable to the other claimants in certain proportions. Aggrieved by this order, the first claimant, Thirulakshmi Ammal, has filed A.S. No. 453 of 1967 and the executive officer, Kallalagar devastanam, has filed A.S. 820 of 1967.
3. The court below held that what was granted was only melwaram only a consideration of the evidence let in by the claimants to whom compensation has been ordered to be paid. the evidence consisted of dealings by those claimants and their ancestors asserting kudiwaram right. The court below also took note of certain admissions made by the predecessors in interest of the first claimant, the appellant in A.S. No. 453 of 1967, stating that they were holders of melwaram right and that the persons in possession were holders of kudiwaram right. It is on the basis of such evidence that the court below found that what was granted was melwaram and not of both warams. The common contention urged on behalf of the two appellants is that the court below erred in holding that the grant was only of the melwaram and not both warams and that on a proper reading of the two appellants is that the court below erred in holding that the grant was only of the melwaram and not both warams and that on a proper reading of the copy of the Inam Register and copy of the inam statement, the court below should have held that the grant was of both the warams. In these circumstances, the substantial question that arises for consideration is whether the grant was of melwaram only or both warams.
4. It is settled law that there is no presumption either that the grant was of melwaram only or of both warams. The question as to the subject of grant has to be decided upon the evidence in each case. In this case the appellants have not produced the original title deed or a copy thereof. But the first claimant has produced a certified copy of the inam register, which has been marked as Ex. A-1, and also a certified copy of the statement given by her predecessor in interest by name Thirumalai Nambi in fasli 1272, at the time of the Inam Commission enquiry, which has been marked as Ex. A-2. The evidentiary value of the recitals in the Inam register was the subject of observation by the Judicial Committee in Arunachalam Chetti v. Venkatachalapathi Guruswamigal, ILR 43 Mad 253 = 37 Mad LJ 460 = (AIR 1919 PC 62) in which it was held-
"It is true that the making of this register was for the ultimate purpose of determining whether or not the lands were tax free. But it must not be forgotten that the preparation of this register was a great act of State and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes. It is to be remembered that the Inam Commissioners through their officers made enquiry on the spot, heard evidence and examined documents, and, with regard to each individual property the Government was put in possession not only of the conclusion come to as to whether the land was tax-free but of a statement of the history and tenure of the property itself. While their Lordships do not doubt that such a report would not displace actual and authentic evidence of individual cases, yet the Board when such is not available cannot fail to attach the utmost importance as part of the history of the property to the information set forth in the Inam Register."
5. In Sankaranarayana Pillai's case, (1947) 2 Mad LJ 315 = (AIR 1948 PC 25), the Privy Council reiterated the same position and observed-
"The question arose in a recent case before this Board with reference to a Madras inam (see Secretary of State for India v. Vidyathirtha Swamigal, (1942) 2 Mad LJ 367), where it was held that the title deeds and the entries in the Inam Register are evidence of the true intent and effect of the transaction and of the character of the right which was being recognised and continued. The entries in the Inam Register and the description of the inamdar therein were accepted as indications of the nature and quantum of the right or interest created in the land."
6. Following the aforesaid decisions of the Privy Council the Supreme Court in Periasami Gounder v. Sundaresa Iyer, ,
"As observed by the Judicial Committee the entries made in the said register are the result of an elaborate enquiry based upon oral evidence, on the spot enquiry and scrutiny of available accounts and records. The inam Settlement is only one of the pieces of evidence which the Inam Commissioner might have taken into consideration in compiling the Inam Register. The recitals in the statement must, therefore, give place to the recitals in the Inam Register, though an attempt shall be made to harmonise them if possible."
As already noticed, Ex. A-1 is a certified copy of the Inam Register relating to the acquired property in the instant case. It consists of certain major heads, each one of which is divided into several subheads. The first major head reads. 'Class, extent and value of inams'. This major head is divided into seven subheads. In column (2) under the sub-head 'General Class to which the inam belongs' the entry is 'Devadayam'. In column 3 under the head 'Survey number and name of field or fields comprised in the grant, dry, wet or garden' the particulars of the land are given as 'Pallasayi 12 (one crop)'. These details are consistent with the view that the grant was of both warams rather than off being mere melwaram. If it was of melwaram alone, the quality of the land was quite irrelevant. In column (4) under the heading 'Local measure' details are given as "1-12.2". In column (5) under the head 'Acres and decimals English measure' the entry is '2.34'. The heading under column (6) is 'survey assessment', whereas the heading under column (7) is 'Revised or present assessment'. A combined reading is made under both these columns as 'Where no survey has been made and no assessment fixed by Government, the cess paid by the ryot to the inamdar or the average assessment of similar Government land should be entered in column (7)'. Under this combined heading no information is given in column (6). But in column (7) the information is given as '13 9.8' which obviously is the assessment. We next come to the next main head, which reads 'Description, tenure and documents in support of the inam.' This again is divided into five sub-heads. In column 8, the heading is 'description of inam--if for service it is to be stated whether the service is continued. If for tanks, buildings etc., whether they are efficiently kept up.' Under this column we find this entry 'For the service of stanikan paricharakam in the pagoda of Alaghar in the Melur taluk. Now rendered'. In column (9) the heading is 'Whether free of tax i.e. Sarvadumbala etc., or liable to quit rent i.e. jodi kattubadi bediga etc., Amount of latter to be entered.' Under this column, the entry is "Average jodi 2-11-7". In column 10 the heading is "Hereditary--unconditional for life only or for two or more lives". Under that heading the entry is 'permanent'. In column 11 the heading is 'By whom granted and in what year'. No information is given under this column. Column 12 reads as 'written instruments in support of the claim'. It also inter alia says 'In this column it should be stated whether the inam is held with or without grant, whether the grant is produced or lost etc., the general specification of terms of all documents produced, should be given'. The entry under this column is: 'Chitta of fasli 1212, 1217. Extent as F. 1212 k.v. 64 2-2-no excess'.
7. Next we come to the third major head which reads as 'name and relationship of original grantee and of subsequent and present holders--length of possession'. This again is divided into eight sub-heads. In column (13) the heading is 'Name of original grantee'. Column (14) reads: 'Name entered in the register prepared according to Regulation XXXI 1802 or in the permanent settlement account and relationship of persons so entered to original grantee'. No information is given in column 13.
8. In column 14, the entry reads as: 'In fasali Tirumalai Nambi. In F 1217 Alaghiya Nambi son'. Column 15 deals with the name entered in the survey or in any subsequent accounts and relationship to predecessors. But no entry is found under this column. The next five sub-heads relate to particulars regarding the present owner such as name and age, place of residence, relationship to the original grantee etc. in columns 16 and 17, the information given is 'Mavada Marudur (1) Gunappi Tirumalai Nambi 18'. In column 18 the relationship is given as 'Great grandson'. Column 19 deals with surviving heirs of the present incumbent, whereas column 20 requires information to the given as to possession if the person in possession was not connected with the original holder. Under these columns no information is given. The last major heading is 'Remarks', which deals with Deputy Collector's opinion and recommendation. The entry under this column is "To be confirmed under Rule III clause of Jodi Rs. 2-11-7".
9. In this case in addition the extract from the Inam Register we have also a copy of the statement given before the Inam Commissioner by the then inamdar, by name Thirumalai Nambi. A copy of that statement is Ex. A-2. It is in Tamil. This was given in fasli 1272. It consists of 12 columns of which the important columns are Nos. 2, 7 and 12. In column 2 the heading is "The name of the inamdar as entered and the name of the person in enjoyment". Under this column the entry is "Own enjoyment--Gnanabhiran Thirumalai Nambiar". The heading in column (7) is details of the Inam, terms and the concise statement of the documents. Under this column the entry reads 'Cawni nilam given to our ancestors by the then Rajas for temples service and paricharakam etc. The land is in my enjoyment'. In column 12 the heading is "Enjoyment". Under this column the entry reads "As shown in column 2". Along with the statement, Thirumalai Nambi also gave a pedigree showing how he was the descendant of Alagirinambi, who is stated to be the original grantee, as entered in column 14 of Ex. A-1.
10. It would thus be seen that the relevant entries in the statement Ex. A-2 are entirely in consonance with the details given in the Inam Register. We have made elaborate reference to the contents of Exs. A-1 and A-2 as the original title deed is not available. As we have already pointed out, the preparation of the Inam Register is an important act of the State and the compilation was as a result of an elaborate enquiry based upon oral evidence, on the spot enquiry and based upon available accounts and records. It is important to note that neither in Ex. A-1 nor in Ex. A-2 is it stated that the land was in the possession of anybody else. If the land was in the possession of anybody other than the person who gave the statement. It is unlikely that the Inam Commissioner, in the course of the enquiry, would have failed to notice that fact. It is reasonable to infer that the Inam Commissioner accepted the statement of the person who claimed to be in possession and based upon that information he recorded in Ex. A-1 that the land was in the possession of the great grandson of the original grantee. In , to which we have already made reference, an extract from the Inam register similar to Ex. A-1, was considered to find out whether the grant was of melwaram only or of both warams. The entries in that register were almost similar to those found in Ex. A-1. The Supreme Court held that on a reasonable interpretation of the various recitals in the Inam Register extract, the only possible conclusion was that the Inam Commissioner was dealing with the entire interest in the land and that the Inam was of both melwaram and kudiwaram. Having regard to the clear recitals in Exs. A-1, and A-2, we have no doubt whatsoever that the grant in the instant case was of melwaram and kudiwaram. We also hold that the grant was personal for the person performing the service and it was not in favour of the Devastanam.
11. The court below took the view that the grant was of melwaram only having regard to two circumstances. One was that the ancestors of the first claimant had described themselves as only melwaramdars and described the persons in possession as kudiwaramdars, thereby clearly admitting that they had only melwaram. The second circumstances was that the persons in possession had dealt with the property by partition and mortgage as their own, thereby showing that they were entitled to kudiwaram right. The court below therefore held that what should have been granted was only melwaram. But the court below failed to examine the various entries in Exs. A-1 and A-2 to find out what was the subject of the original grant. It is true that there are certain statements made by the ancestors of the first claimant to the effect that they were melwaramdars and that persons in possession were kudiwaramdars. Ex. B-13 is a copy of the plaint in S.C. No. 1380 of 1931 on the file of the District Munsif Court, Madurai Town, filed on behalf of the minor Thirumalai Nambi by his next friend one Srinivasa Iyengar. That suit was instituted to recover certain amount which was collected by the Government from the Inamdar by way of penalty for using water from a tank called Managiri tank by unlawfully cutting the bund of that tank by those who were in possession. In that plaint it was no doubt alleged that the plaintiff therein was entitled to melwaram from the defendants therein in the shape of paddy and other grains. It was also alleged that the persons who were in possession were cultivators and holders of occupancy rights. Exs. B-1 to B-4 are receipts issued by the ancestor of the first claimant describing himself as melwaramdar and describing the persons in possession as (Uluvadaidar). Strong reliance was placed upon these admissions as supporting the view that what should have been granted originally was of melwaram only. The counsel appearing for the persons in possession, whose claims have been upheld by the court below, however, conceded before us that if the original grant was of both warams, such admission would not confer title upon the persons in possession who claimed kudiwaram right, for, mere admission would not confer title. Perhaps the Inamdar having let the property to tenants collected rent from them and issued the receipts under the misapprehension as to the exact nature of his rights and the rights of those in possession.
12. It is also true that the persons in possession have dealt with the property as owners of kudiwaram right by partition, as seen from Exs. B-6 and B-12, and by executing mortgage deeds, as seen from Exs. B-5, B-10, B-11, B-14, B-19, B-20 and B-21. There was also one transaction of sale as seen from Ex. B-18. Under all these documents, the executants claimed kudiwaram right. It is not the case of those who claimed kudiwaram right that they had acquired title to kudiwaram right by prescription; nor is it their case that subsequent to the original grant of two warams in favour of the ancestor of the first claimant, the kudiwaram right was conveyed to them. It may be that the same persons were allowed to continue in possession without interruption, and on the basis of long Possession, the persons in possession appear to have thought that they were entitled to deal with the kudiwaram right. But it is not the case of these claimants that the original grant was in respect of both warams, and that in spite of the grant of both warams, their ancestors and themselves were in enjoyment of kudiwaram right adversely to the grantee and had prescribed title by adverse possession. The counsel for these claimants frankly conceded before us that the claim to kudiwaram is not based upon adverse possession. Nor is there any room to draw a presumption of origin in some lawful title in favour of these persons. Such a presumption of origin in some lawful title would arise only where no actual proof of title is forthcoming. Such a rule would have to be resorted to if there is absence of actual evidence. But if there is actual and convincing proof of the nature of the grant, the rule can hardly have any application--vide Sankaranarayana Pillai v. H. R. E. Board, Madras 1947-2 Mad LJ 315 = (AIR 1948 PC 25). We may observe in this connection that it is not the case of the persons in possession that they have become entitled to the kudiwaram right either by customs or by any grant from the original grantee; nor is it suggested that we should draw a presumption of origin in some lawful title, for, there is not room for drawing such a presumption for the reason that we have ample evidence to show that the grant was of both warams. Mere long possession, fixity of rent and assertion of title in certain deeds, to which neither the grantee nor his descendants were parties, would not justify an inference of permanent occupancy right--vide Kondayya v. Rama Rao, .
13. It was contended on behalf of those in possession that they would be entitled to ryotwari patta under the provisions of the Minor Inams Abolition Act, 1963, and that if such a patta is obtained, the holder of the patta would be entitled to the entire compensation. We do not accept this contention. No doubt, under the Minor Inams Abolition Act, persons satisfying certain conditions with regard to kudiwaram in an inam are entitled to ryotwari pattas. Under that Act, minor inams are abolished and all the lands in such inams have vested in the Government. But in this case, notwithstanding such vesting, the Government have invoked the provisions of the Land Acquisition Act on the basis that the lands do not belong to the Government but belong to others. Therefore, the provisions of that Act should be applied in ascertaining the interests of the persons entitled to the compensation. We may also point out in connection with the question of obtaining patta in recognition of kudiwaram right does not arise in view of our finding that the inam was of both warams.
14. For the foregoing reasons, we are of the opinion that the grant was of both melwaram and kudiwaram and that the entire compensation is payable only to the first claimant. But inasmuch as the original grant was made as service inam, it is inalienable and therefore the first claimant is not entitled to receive the compensation amount for her own use. Under Section 32(1) of the Land Acquisition Act, the compensation amount should be invested, so long as the service is performed the first claimant would be entitled to receive the return, from such investment. The court below will take action for such investment and the first claimant is at liberty to move the court below in this behalf. In the result, A.S. 453 of 1967 is allowed and there will be a decree in favour of the appellant first claimant in the terms indicated above. A.S. No. 820 of 1967 filed by the Devastanam is dismissed. In the circumstances, the parties will bear their costs in A.S. 820 of 1967. The appellant in A.S. 453 of 1967 will recover her costs from the contesting respondents therein.