1. This appeal was preferred against the decision of the Subordinate Judge of Mayavaram in a suit instituted by a Ranee of His Highness the late Rajah Sivaji of Tanjore against the Secretary of State for India in Council for a declaration that certain lands were absolute freehold inam and not liable to resumption by the Government and for recovery of the assessment paid by her under protest for Faslies 151'2-1315. The lands in question along with some other lands, aggregating in all 26 velies, are situated in the village of Kottaiyoor in the Kumbakonam Taluk. The whole village was granted in inam by Maharajah Tuljaji of Tanjore in the year 1768 to 24 Brahmins by a grant under the Royal Seal (Sicca grant) which is marked as Exhibit Lia the case. The lands in dispute in this suit were alienated by the descendants of the grantees at various times. Some portion of them came into the possession of the late Maharajah Sivaji in 1846 and Ors. into the possession of the plaintiff's co-ranees and the plaintiff subsequently on various occasions, by purchases made for the benefit of a temple of which the plaintiff is the present trustee. The Government resumed the inam in June 1905 and collected assessment on the lands from the year Fasli 1312 the notification for resumption having been published in January 1903. The plaintiff's case is that Government had no right to resume the inam as the lands were granted as absolute freehold to the donees under Exhibit L. The plaint also alleged that no proper enquiry was held before the resumption and the order of resumption is therefore illegal. The defendant contended that the order of resumption was passed in conformity with the law of the country and the orders of Government that the grant itself was invalid and that the title under the grant ceased on the alienation of the lands by the original inamdars. He also contended that the Civil Courts had no jurisdiction to question the legality of the order of resumption. The Subordinate Judge held that the right under the grant was forfeited both by the failure of the holders to bring the lands to settlement under the inam rules and by the alienations made by the inamdars. He also upheld the defendant's contention that the Civil Court had no jurisdiction to question the validity of the resumption. We are of opinion that the decision of the Lower Court on the question of jurisdiction is right and it is therefore unnecessary to go into the question whither the grantees under Exhibit 1 were entitled to alienate the inam and whether the order of resumption was legal.
2. The question whether the jurisdiction of the Civil Court is barred rests on the construction of Section 4 of the Pensions Act (XXIII of 1871) which enacts ' Except as hereinafter provided no Civil Court shall entertain any suit relating to any pension or grant of money or land revenue conferred or made by the British or any former Government, whatever may have been the consideration for such pension or grant and whatever may have been the nature of the payment claimed or right for which such pension or grant may have been substituted.' Section 6 provides that on a certificate from a Collector, Deputy Commissioner or other Officer authorised in that behalf a Civil Court can take cognisance of such claim. The question for decision is whether the suit is one relating to a grant of land revenue made by the Maharatta Government of Tanjore in 1768. Exhibit 1 is in the form of a letter addressed to 'M. Anam Karkoons (Clerks) present and future, Subba Mannargudi '. After describing the lands granted the terms of the grant are thus set out. ' Total of 60 velies of land including wet and dry lands, water, trees, stones, Nidhi, Nikshepa (Treasure), Sidha, Sadhya (whatever is and may be brought into existence) present and furure patti, all banb and all Kana with all samudayams with water poured from the hand. Boundaries to be fixed and the land made dumala. The gift is to be continued puthra pouthra paratnparaya (i.e., from son to grandson in succession.) Fresh orders from year to year are not required '. It is contended for the appellants that the grant is of the land itself with evrything contained in it and not of the Government assessment or Melwaram. For the Government it is contended that the language of the document does not necessarily show that the gift was of anything more than the Melwaram or Government assessment and that at any rate the document expressly makes a grant of land revenue. There is no evidence on record to show whether the kudivaram right in the lands was vested in the Tanjore Government at the time of the grant or not. But the language is appropriate to a grant of kuudiwaram right also. We shall assume for the purposes of this judgment that the kudivaram right in the lands was vested in the Tanjore Government and passed to the grantees under E'xhibit L. But taking this to be so, is Exhibit L, a grant also of the Melwaram or Government assessment or not? We are prepared to assume without deciding that a 'grant of all rights in certain lands vested in the Government without reserving any right to Government revenue would not by itself amount a grant of the land revenue on the ground that the land, not being liable to revenue in the hands of Government, a mere grant of the land should not be construed to mean a grant of what did not exist at the time, namely, the Government assessment on it. But it cannot be disputed that Government may grant the kudivaram to one person and the rnelwarm to another; similarly although both the kudivaram and melwaram may be combined in the hands of the Government, there is nothing to prevent it from treating them as distinct interests and granting to the same person. Now what is the fair construction of the words in Exhihit L. It is not disputed that the word ' Patti ' means Government assessment and that the vords ' baub ' and ' kanu ' also mean certain cesses leviable by Government. According to the terms of Exhibit L, the ' patti,' ' banb ' and ' kanu ' are given to the grantees. The gift is not of the land only as sarvamanyam, though such a gift may have the effect of exempting the grantee from the payment of any revenue, 'lhe items of Government revenue are expressly stated to be granted as well as the land itself. There was nothing to prevent the Tanjore Rajah from granting the kudivaram and melwaram rights to the same grantee severally though he might also merely grant the land itself with all rights as sarvamanyam. It is argued that the Government revenue and cesses are referred to merely to show that the gift was to be free of liability to revenue and to express more fully the idea that the land was granted absolutely with all rights. But although the same legal effect might be achieved in either of two ways, the question is what was the method adopted in the particular case? The water, trees and stones might refer to rights included in the kudivaram. It is unnecessary to consider whether mines and treasures would form part of the kudivaram or melwaram right or of both. There is anyhow a distinct enumeration of Government assessment and cesses as subjects of the grant. We must therefore hold that there was a grant of land revenue in Exhibit L. This being the case we are of opinion that the suit relates to a grant of land revenue.
3. Section 4 of Act XXIII of 1871 does not require that the grant should be of land revenue alone in order to shut out jurisdiction of the Civil Court to entertain a suit relating to a grant of land revenue. Such a construction would be opposed to the plaifi language of the section. No authority has been cited which goes to the extent of holding that, where land revenue is separately granted (along with the land itself) from the kudivaram right therein, a Civil Court would have jurisdiction to determine a suit which relates to the land revenue alone. In the present case the Government, by its order of resumption merely resumed the land. revenue; and levied full assessment on the land and the suit is for a declaration that the resumption by the Government of the land revenue was illegal. In Rama v. Subba I.L.R. (1888) M. 98 it was held that a suit for moiety of two villages granted as Jagir was unsustainable in the Civil Court without a certificate from the Collector against the rival claimant who set up an exclusive right to the whole Jagir. It does not appear that anything more than the melwaram was granted by the Government as Jagir and prima facie the grant would not include kudivaram right. The suit therefore apparently related only to the melwaram right and was clearly barred by Section 4 of Act XXIII of 1871. The decision, however, proceeded on a wider ground. The learned Judges Collins, C.J. and Muthusayin Iyer, J. were apparently of opinion that, even though the mam might consist only of the land revenue, if it was granted to one in whom the kudivaram right was also vested and if a dispute arose between rival claimants of both the kudivaram and melwaram right, a suit relating to such dispute would not be maintainable in the Civil Court even with respect to kudivaram right. The view adopted by them was that unless the inarn had been enfranchised and made the freehold property of the Inamdar the jurisdiction of the Civil Court was shut out formerly by the provisions of Regulation IV of 1831 and afterwards by Act XXIII of 1871. Regulation IV of 1831 in terms excluded the jurisdiction of the Civil Courts only with respect to grants of land revenue. Act IV of 1862 rescinded the provisions of Regulation IV of 1831 in cases in which the mam was enfranchised. It is unnecessary to consider whether, when there is a grant of the land revenue only to persons already owning the kudivaram right, there is anything in Section 4 of Act XXIII of 1871 construed in the light of Regulation IV of 1831 and Act IV of 1862 to take away the jurisdiction of the Civil Court with respect to a claim to the kudivaram right. Reference is made by the learned Judges to the judgment of Holloway and Kindersley JJ. in Periyalcovil Kalaviappan v. A. Pulliah Chetty 1 Ind. Jur. 164. The suit in that case was for the recovery of certain lands which the plaintiff alleged he has purchased from an inamdar. It does not appear whether the inam in that case consisted of the melwaram right only or of the land itself. The judgment apparently proceeded on the footing that it was the melwaram but that the kudivaram already belonged to the grantee at the time of the grant. It was argued that the release by the Government in favour of the owner of the kudivaram, of the right to the revenue could not be taken to amount to a grant of the land revenue. This contention was negatived. The learned Judges say ' it appears therefore to us that the receipt from a tenant of a revenue less than that assessable upon land of the same quality is a gift or grant of the difference.' The dismissal of the suit by the District Court was upheld in second appeal. The judgment also apparently assumed that a suit relating to the kudivaram would also be unsustainable if it vested in the same person as the inam grant of melwaram. On the other hand Panchanadhayyan v. Nilakandayyan I.L.R. (1882) M. 191 where the suit was for partition of certain lands and it was found that the inam grant was of the lands themselves revenue free and not merely of the revenue, it was held that the suit, was maintainable. Turner, C.J. says: 'We are of opinion that the nature of the grants is such that they do not come within the provisions of the Pensions Act. The Act contemplates money payments to be received through the Collector or recovered from persons bound to pay revenue. It does not appear that the grant contained a distinct gift to the grantee of the Government revenue of the land as Exhibit 1 does in this case. The ca?e is only authority for the position that where there is no gift of the land revenue as such, the case does not come within the purview of Section 4 of the Pensions Act. In Kumar a Tirumalai Nailt v. Banani Turumalai Naick I.L.R. (1898) 310 the suit was inter alia to remove the defendants from the management of certain inam lands and to appoint other managers. The grant was not made by the sovereign power, but was confirmed by the Britsh Government. The Court held in accordance with the view taken in Panchanadhayyan v. Nilakantayyari I.L.R. (1882) M. 191 that assuming that the confirmation by the Government of the previous grant amounted to a regrant, it could not be said that the giving of the land free of revenue was a grant of land revenue so as to bring the caso within the provisions of the Pensions Act.' Freedom from liability to land revenue is not identical with holding a grant of land revenue, any more than the extinction of an easement by becoming sole proprietor of the property, servient as well as dominant is a grant of an easement. The land revenue arising from a man's own holding, when it is remitted and the land pays nothing, is rather extinguished than granted. See Babajee v. Rajaram I.L.R. (1875) B. 75. It may be that if the land'itself is granted without any distinct grant of the revenue thereon, the case would not come within Section 4. But the observation that the relinquishment of the revenue due on land previously subject to it is not tantamount to the grant of the revenue is more questionable and is opposed to the decision of this Court in Periyakovil Kalaviappan v. A. Pulliah Chetty 1 Ind Jur. 164. Land revenue is not a servitude attaching to the land. The kudivaram and melwaram are distinct interests constituting the totality of ownership in the land. The revenue is not a servitude on property which belongs to the kudivaram holder. The case is, however, is not similar to the present one as there was apparently no distinct grant of land revenue in that case. Whether Panchanadayyan v. Nelakantayyan I.L.R. (1852) M. 191 and Kumara Tirumala Naik v. Bangaru Tirumala Naih I.L.R. (1898) M. 310 are reconcilable with Rama v. Subbar I.L.R. (1888) M. 98 or not they do not, for the reason alreaday mentioned, affect the decision to become to in the present case. Babaji Hari v. Rajaram Balal I.L.R. (1875) B. 75 and Ravaji Narayan Mandlik v. Dadaji Bapuji Desai I.L.R. (1875) B. 523 were similar to Panchanadhayyan v. Nilakantuyyans I. L.R. (1852) M. 191 and Kumara Tirumala Naik v. Bangaru Tirumala Naick I.L.R. (1898) M. 310 and decided merely that where the grants is of the land itself, Section 4 of the Pensions Act does not apply. Our attention was drawn to the fact that in the latter case in a letter accompanying the Sannad and written to the Desathikaries and Deshlekhakes the present and future patti (taxes) was said to be granted to the inamdar as in Exhibit 1 in this case. But the Sannad itself did not mention the pattis. See Page 524. And it was contended by the defendant in that case that there was a distinct grant of the revenue of the land. Ganpat Rao v. Ananda Rao I.L.R. (1905) A. 104 was also similar to Panchanadhayyan v. Nila kantayyan3 so also was Ganapat Rao v. Ananda Rao I.L.R. (1909) A. 148. In the latter case the Privy Council did not definitely decide the point althpigcb their Lordships' observation might show that, if the grant was of the land itself and not of the revenue, Section 4 of the Pensions Act would not be applicable. In Mannti Lai v. Fazal Imam I.L.R. (1875) B. 75 also apparently the grant was of the land itself. The learned Judges Richard, C.J. and Banerjee, J. were apparently of opinion that Section 4 would apply only where the land revenue is payable by the Government to the grantee. They refer to Section 3 which states that land revenue includes anything payable on the part of the Government in respect of any right, privilege, perquisite or office. The object of the definition was merely'to include payment to be made by the Government and not to confine the expression ' grant of money ' to such payments. We are unable to accept this restricted interpretation of Section 4. The decision of the case, however, is rested on the authority of Ganapat Rao v. Ananda Rao I.L.R. (1911) A. 580 and proceeded therefore on the ground that the grant was of the land itself and not of the revenue thereon. In Gunnaiyan v. Kamakshi Iyer I.L.R. (1905) A. 104. Bashyam lyengar, J. observed (page 345) ' that claims in respect of personal inams which have not been enfranchised are exempt from the cognisance of Civil Courts and may be adjudicated upon only by the Governor-in-Council or other executive authority'. The respondent contends that the learned Judge adopted the view taken in the case in llama v. Sitbba I.L.R. (1888) M. 98. Whether it was the intention of the legislature to shut out from the jurisdiction of the Civil Courts all claims relating to the kudivaram right also where both the kudivaram and melwaram are granted by the Government to the same person and whether such intention has been effectively carried out in Section 4 of the Pensions Act, it is not necessary for us to decide in this case. As we read Exhibit 1 there was a distinct grant of the land revenue apart from a grant of the kudivaram right. The suit therefore relates to a grant of land revenue and it relates only to the land revenue. We are therefore of opinion that the suit is barred by Section 4 of the Pensions Act. We dismiss the appeal with costs.
4. Appeal No. 188 of 1908 follows and is dismissed with costs.