John Wallis, C.J.
1. The judgments in Nandigam Subbarayulu v. Kannam Saheb (1919) M.W.N., 836 and in Sri Gadadhardoss Bavaji v. Suryanarayana Patnaik : (1920)38MLJ342 (to which I was a party) and in Narasavadhanulu v. Kamakshiah C.R.P. Nos. 610 to 616 of 1917 (unreported), proceeded upon the view which I think was not then seriously contested, that the effect of the decisions of the Privy Council in Suryanarayanna v. Patanna (1918) I.L.R., 41 Mad., 1012 (P.C) and in Venkata Sastrulu v. Seetharamudu (1920) I.L.R., 43 Mad., 166 (P.C.), was to raise a presumption that a grant to an inamdar was a grant of the proprietary interest in the land including both varams. This view was seriously challenged for the first time in Sri Sri Mahant Radhakrishnadoss v. Chitri Podhanum Appeals Nos. 160 of 1919 and 69 of 1918 (unreported), before Abdur Rahim and Moore, JJ., who held that the effect of the Privy Council decisions was that in the case of a grant to an inamdar there was no presumption one way or the other as to whether there was a grant of the proprietary interest in the land. This reference raises the question which of these two views is correct. Now the first thing to be observed is that in the two cases mentioned in the Order of Reference all that the Privy Council was called upon to decide was whether the lands in question were proved to be an 'estate' within the meaning of Clause (d) of Sub-section (2) of Section 3 of the Madras Estates Land Act, as:
A village of which the land revenue alone has been granted to a person not owning the kudivaram thereof.
2. Clearly the party claiming that any land is an estate within the meaning of this definition has the onus thrown on him of showing that the land revenue thereof alone has been granted to a person not owning the kudivaram. If there be a presumption that an main grant is a grant of the revenue only, he would of course be entitled to take advantage of it. The question whether there was such a presumption was an open one when the Act was passed. The earliest cases in which the question of occupancy right came before the High Court were cases of villages granted in inam to temples in Tanjore, and in all these cases it was held that the temple was the owner of the land and that there was a presumption against the existence of any occupancy right on the part of the tenants: Alagaiya Tiruchittambala v. Saminada Pillai (1863) 1 M.H.C.R. 264, Subupalayi Ammal v. Appakutti Aiyangar (1866) 3 M.H.C.R., 106, Chockalinga Pillai v. Vythealinga Pundara Sunnady (1870) 6 M.H.C.R., 164, Krishnasami v. Varadaraja (1882) I.L.R., 5 Mad., 345 (F.B.) , Thiagaraja v. Ganasambanadha I.L.R.(1884) Mad., 374, Chidambara Pillai v. Thiruvengadathiengar : (1897)7MLJ1 , Chockalingam Pillai v. Mayandi Chettiar I.L.R., (1896) Mad., 485, Mayandi Chettiar v. Chockalinga Pillay (1904) I.L.R., 27 Mad., 291 (P.C.). Then came the leading cases of Appa Rau v. Subbanna I.L.R., (1890) Mad., 60 , Venkatanarasimha Naidu v. Dandamudi Kotayya I.L.R., (1897) Mad., 299, Cheekati Zamindar v. Ranasoora Dhora I.L.R.,(1900) Mad., 318, establishing a presumption of occupancy right in zamindaris and other larger estates. There was some hesitation about extending the same presumption to inams; but after the passing of the Madras Estates Land Act, 1908, there were a series of decisions holding that there was a presumption that inam grants were grants of land revenue only which was sufficient to make the inam an estate within the meaning of the definition and so confer or confirm occupancy rights in the tenants. When the Privy Council in Suryanarayanna v. Patanna (1918) I.L.R., 41 Mad., 1012 (P.C) overruled these decisions and decided that there was no such presumption, the immediate result, as regards the question which they were considering, was, that the definition of 'estate' had to be applied without the aid of such a presumption; and that, therefore, any person asserting that the land was an estate had to prove that the grant was of the land revenue only to a person not owning the kadivaram, and that, if he could not establish this affirmatively, he must fail. These decisions cannot in my opinion be construed as ruling that in these cases there is no presumption one way or the other.
3. There was no occasion for the Privy Council in Suryanarayanna v. Patanna (1918) I.L.R., 41 Mad. 1012 (P.C.) to rule expressly that there was a presumption that the grant is both of the melvaram and the kudivaram, as the initial presumption was settled by the definition in the statute. That definition, however, only applies when the inam granted is a village or a separated part of a village in which the grant is of the land revenue only. Here the case is outside the Act as the grant was of an unseparated portion of a village about 80 acres in extent; and it therefore becomes necessary to consider whether the proposition that such grant was of the kudivaram as well as of the melvaram is properly deducible from the decision in Suryanarayanna v. Patanna (1918) I.L.R., 41 Mad., 1012 (P.C.). In the course of the judgment their Lordships observed that the question was:
was it a grant of the revenue only of the villages, or was it a grant of the proprietary right in the village, that is the soil of the village,
which appears to suggest that it was one or the other. They then proceeded to reject the historical theory that in ancient times the ownership of the soil of land in India was not in the sovereign or ruler, and that the right of the ruler was confined to a right to receive as revenue a share in the produce of the soil from the cultivator; and they went on to reject the presumption founded on that theory that in the case of an inamdar it should be presumed, in the absence of the inam grant under which the inam was held, that the grant was of the royal share of the revenue only. Now, if there is no sufficient justification for a presumption limiting the grant to the royal share of the revenue only on the ground that that was all the sovereign had to grant, it seems to me to follow that the grant was presumably a grant of that which the sovereign had, viz., the proprietary right in the soil, subject, of course, to the occupancy rights of any of the cultivators holding under him at the date of the grant, as stated by their Lordships towards the close of their judgment.
4. That is a sufficient answer to the reference, but I would go further and say that in my opinion, there is no presumption, at any rate in the case of these minor inams of less than a village in extent, that there were occupancy rights on the land at the time of the grant; and that, I think, is why the legislature left them outside the operation of the Act. In these circumstances I think that the position of these inamdars is that of pattadars holding under Government on favourable terms, and that the proprietary interest presumably transferred to them by their grants is sufficient, as in the case of ordinary pattadars according to the line of cases ending with the recent decision of the Privy Council in Seturatnam Aiyer v. Venkatachela Goundan (1920) I.L.R., 43 Mad., 567 (P.C.) , to some of which I have already referred, to throw the burden of proving the existence of permanent tenancy or occupancy rights in the first instance on the tenants who set up such rights. In this respect it seems to me that their Lordships dealt with all these cases in the same way. In Suryanarayanna v. Patanna (1918) I.L.R., 41 Mad., 1012 (P.C.), their Lordships observed in a passage to which I have already referred:
But the grant of a village by or on behalf of the Crown under British rule is in law to be presumed to be subject to such rights of occupancy, if any, as the cultivators at the time of the grant may have had.
5. This seems to me to proceed upon the footing that where the question is one of occupancy right it is for the cultivators to establish such rights which would not be the case unless the grant was presumably a grant of the proprietary interest in the soil. In the next case, Venkata Sastrulu v. Seetharamudu (1920) I.L.R., 43 Mad., 166 (P.C.), Lord Cave, after alluding to the overruled presumption as to the grant being of the melvaram only, stated that:
Each case must therefore be considered on its own facts; and in order to ascertain the effect of the grant in the present case, resort must be had to the terms of the grant itself and to the whole circumstances so far as they can now be ascertained.
6. This does not, in my opinion, negative the presumption that the grant was of the proprietary right, but only indicates that the question is to be decided on the evidence as a whole. The tests indicated, the terms of the grant and the whole circumstances of the case, are substantially the same as those mentioned by Sir Lawrence Jenkins in Seturatnam Aiyer v. Venkatachela Goundan (1920) I.L.R., 43 Mad., 567 (P.C.) , where, as regards the question of occupancy right the presumption was expressly found to be in favour of the ordinary pattadar and against the existence of occupancy rights in the tenants holding under him. In that case, it was held that the tenants had proved that their predecessors possessed occupancy rights at the inception of their relations with the plaintiff's predecessors, and I think that similarly it is for the tenants of inamdars to establish the existence of occupancy right in the same manner. My answer to the reference is that the two judgments referred to do not expressly lay down a presumption that the grant is of both the melvaram and kudivaram, as such a ruling was not necessary for the purposes of those cases, but that such an initial presumption is deducible from the grounds on which the judgments are based.
Coutts Trotter, J.
7. My lord and my brother Ramesam, J., whose judgments I have had the advantage of perusing, have reviewed the case law on this subject so exhaustively that I think no useful purpose would be served by my going over the same ground, especially as the subject is one with which I am necessarily unfamiliar. There is no doubt that the Privy Council has in terms negatived the rule that this Court had laid down, that the presumption was that an inam grant was a grant of the melvaram only. There is, to my mind, no doubt also that their Lordships have not said in terms that there is a contrary presumption the other way. But I cannot conceive that they meant Courts to try suits of this character, when there is from the nature of things hardly ever any available evidence as to the nature of the original grant, without some working rule, call it presumption or rule as to incidence of proof or what you will. In the absence of such a rule, the result would in most cases be a deadlock: whoever came to the Court first and found himself in the position of plaintiff would necessarily fail by that mere accident.
8. I therefore agree with my lord, that it is a necessary inference from the reasoning of their Lordships of the Privy Council that, in the absence of any evidence one way or the other, it must be taken that such a grant as this was of both varams, and I concur in the answer to this reference which he has formulated.
9. The question referred to the Full Bench may be stated to be 'Is there any presumption of law, as to the extent of the grant, deducible from the rulings of the Privy Council in Suryanarayanna v. Patanna (1918) I.L.R., 41 Mad., 1012 (P.C.) and Venkata Sastrulu v. Seetharamudu (1920) I.L.R., 43 Mad., 166 (P.C.).'
10. In the above mentioned cases, their Lordships of the Privy Council had to consider Section 3(2)(d) of the Estates Land Act, for the purpose of deciding the question of jurisdiction, viz., whether the suits were rightly laid before the Civil Courts. The inams in those cases were enfranchised whole inam villages and the question whether the grant was of the melvaram alone had to be considered. For some time the Madras High Court had, in a series of cases [all decided after Marapu Tharalu v. Telukula Neelakanta Behara I.L.R.,(1907) Mad., 502, not counting the obiter dictum in Narasimhulu v. Narasimhulu : (1906)16MLJ333 ] held that the Courts should start with a presumption that the grant was of the melvaram alone and the onus was on the inamdar to prove that he had both the varams, and, therefore, had the right to eject. Their Lordships of the Privy Council held that no such presumption exists. They point out that such a presumption was based on the assumption.
that the right of the ruler was confined to a right to receive as revenue a share in the produce of the soil from the cultivator,
and then say:
that is an assumption which no Court is entitled to make: indeed that fact would support the contrary assumption that the soil was vested in the rulers . . . (page 1019).
11. If the assumption on which any presumption is to be based should be, not that the rulers were owners of a share in the revenue but that the soil was vested in the rulers, it follows that the presumption as to the extent of the grant should correspondingly change, i.e., it is not merely the melvaram but the whole right in the soil, for the ordinary rule in construing grants is that the grantor grants all that he has and which can therefore be granted. That this is what their Lordships meant is clear from the sentence at page 1020:
It is not proved, nor is there any evidence to suggest, that at the date of the grant there were any tenants in the village holding lands with any rights of occupancy by custom or otherwise.
12. Who is to prove? Obviously, the tenants who were the defendants in that case. This sentence, in my opinion, throws the burden of proof on the tenants and indicates one mode in which it can be discharged. Again at page 1021, their Lordships say:
But a grant of a village by or on behalf of the Crown under the British rule is in law to be presumed to be subject to such rights of occupancy, if any, as the cultivators at the time of the grant may have had,
i.e., may be proved to have had. Who is to prove the right which by subjecting the ownership subtracts from or diminishes it? The person who relies on it or the tenant?
13. It is true that the sentences I have quoted from pages 1020 and 1021 of Suryanarayanna v. Patanna I.L.R., (1918) Mad., 1012 (P.C.) , have not been repeated in Venkata Sastrulu v. Seetharamudu (1920) I.L.R., 43 Mad., 166 (P.C.). Apart from the fact that there is nothing to show that the decision in Venkata Sastrulu v. Seetharamudu, (1920) I.L.R., 43 Mad., 166 (P.C.) was intended to affect or modify the observations in Suryanarayanna v. Patanna (1918) I.L.R., 41 Mad., 1012 (P.C.), a slight consideration will show that this conclusion follows from the simple statement that there is no presumption that the inamdar is grantee of the melvaram alone. Now, when a grant of an inam is admitted, it may be conceded that the grantee is the owner of something. What is that something? The appellant's vakil concedes (in my opinion, rightly) that it must be either (1) melvaram alone or (2) melvaram and kudivaram. The first alternative expresses the minimum extent of the grant, i.e., represents the extreme position against the inamdar, and his grant can never be less than that. If, at all, it may be more. The Madras High Court held that they would start with only this minimum. The Privy Council upset this rule. What follows? The only other alternative is that the inamdar has both varams. There is no middle course. A grant of melvaram plus something more but not 'melvaram and kudivaram' is meaningless and cannot be conceived. The statement in Venkata Sastrulu v. Seetharamudu I.L.R., (1920) Mad., 166 (P.C.) , 'each case must depend on its facts,' merely states what has to be done in every case whether there are presumptions or not, and cannot be taken to contravene the express statements in Suryanarayanna v. Patanna (1918) I.L.R, 41 Mad., 1012 (P.C.).
14. It has been held in this Court that it makes no difference whether the grant is by the rulers or zamindars.
15. I now pass on to the question whether the conclusions I have come to should be confined to whole villages or should be extended to minor enfranchised inams. One would think, from the nature of the case, that it is an a fortiori inference for minor enfranchised inams. It may be said that, when a whole village is granted (1) it could not have been intended that the grantee should cultivate the whole village himself, and (2) it is very unlikely that a whole village would be a village of waste lands. Some lands at least would have been cultivated and it could not have been intended to affect the rights of such cultivators, whatever they were. Both these considerations disappear when we come to grants of small extents. When we remember that these inams were granted to favourites or poor dependents, one would think that the subject-matter of the grant was intended to cover all that can be extracted from the soil. It seems to me that the smaller the area granted, the stronger the presumption in favour of the inamdar.
16. When we consider the history of the case law leading to Legislation (Madras Estates Land Act), the same conclusion follows. From the time of the case of Chockalinga Pillai v. Vythealinga Pandara Sunnady (1870) 6 M.H.C.R., 164 onwards, the general impression was that, neither in zamindaris nor in inams, the tenants had any occupancy right. The contrary view began to gain ground (so far as zamindars are concerned) in Appa Rau v. Subbanna I.L.R., (1890) Mad., 60 and Vencata Mahalakshmamma v. Ramajogi I.L.R., (1893) Mad., 271, which however laid down no principle. A presumption in the nature of a rule of law was first laid down in Venkatanarasimha Naidu v. Dandamudi Kotayya I.L.R., (1897) Mad., 299 and was extended in Cheekati Zamindar v. Ranasoora Dhora I.L.R.,(1900) Mad., 318. It is unnecessary now to consider how far this rule was right. The rule served its purpose from Venkatanarasimha Naidu v. Dandamudi Kotayya I.L.R., (1897) Mad., 299 up to the legislation in Madras Estates Land Act and what was given by the rule of law is now given by legislation to tenants in Estates. My opinion is, that if the Madras Estates Land Act had not been passed, Venkatanarasimha Naidu v. Dandamudi Kotayya I.L.R.,(1897) Mad., 299 and Cheekati Zamindar v. Ranasoora Dhora I.L.R., (1900) Mad., 318 would have been shaken by the recent Privy Council decisions.
17. So far as, inams are concerned, for some time, there was some hesitation in applying Venkatanarasimha Naidu v. Dandamudi Kotayya I.L.R., (1897) Mad., 299 to them. As to them, it was expressly laid down that the onus is on the tenant to prove occupancy right. [See Thiagaraja v. Giyana Sambandha Pandara Sannadhi I.L.R.(1888) , Mad., 77 and Achayya v. Hanumantrayudu I.L.R., (1891) Mad., 269, Venkatacharlu v. Kandappa I.L.R.(1892) , Mad., 95, the phrase 'the right to eject' in which was explained in Gandrapu Sinayya v. Koppineni Venkataratnam (1910) 7 M.L.T., 350; 6 I.C.,701 and Marapu Tharalu v. Telukuta Neelakanta Behara I.L.R.,(1907) Mad., 502 and Kadambala Dhonna Chowdari v. Rayala Adinarayana S.A. No. 1021 of 1905 (unreported) (unreported--decided in January 1908)]. So late as in 1902 it was said [vide Subbaraya Sastri v. Kristnaiya : (1910)20MLJ526 decided in 1902 but reported later] that there was no presumption either way, a statement which I do not quite understand. The tide turned definitely in Bhadrayya v. Bapayya : (1911)21MLJ803 , until it was firmly established in Suryanarayanna v. Patanna I.L.R., (1915) Mad., 608 , afterwards reversed by the Privy Council. The presumption was used by the Madras High Court to shift the onus from the tenants (which was the prior existing state of things) on to the landlord, and the decision of the Privy Council restored the state of things as it existed in Achayya v. Hanumantrayudu I.L.R., (1891) Mad., 269 and Rangasami Reddi v. Gnana Sammantha Pandara Sannadhi I.L.R., (1899) Mad., 264 (for ryotwari land).
18. It is significant that the legislature, when it interfered in 1908 after the most careful and anxious consideration, confined the legislation to estates which included only certain inam villages. The definition in Section 3(2)(d) itself is strong evidence that the legislature thought either that there was not or that there ought not to be occupancy right in minor inams and some inam villages--it being on the tenant to prove to which inam villages the Act applies.
19. The presumption in favour of the inamdars' right to both varams may be weak or strong according to circumstances. It may be even easily rebutted. But, when there is no evidence, it exists effectively. One word, I will add. The reference by the Privy Council to the entry in Oakes' Register, which they say is conclusive, shows that if there is an entry in a register that the land or agraharam or village or field is granted, it means both varams are granted. The entry in column 1 of Exhibit D of this case (I do not say anything of other entries or other facts) is like the entry in Oakes' Register, and in my opinion the District Judge was perfectly right in the way in which he used Exhibit D to strengthen the presumption.
20. It is true that my remarks equally apply to minor subsequent inams, but, as the question, whether the Estates Land Act applies to them, is under consideration by a Bench of three Judges in a Letters Patent Appeal, I do not say more about them.
21. In the result, I concur in the answer to the reference proposed by my Lord the Chief Justice.