1. Letters Patent Appeal No. 61 of 1949 is against the judgment of Panchapagesa Sastri J. in C.M.A. No. 648 of 1946 and Letters Patent Appeal No. 62 of 1949 is against the judgment of the same Judge in C.M.A. No. 649 of 1946. C.R.P. No. 66 of 1946 is against the order of the Subordinate Judge of Masulipatam in S.C.S. No. 62 of 1943 on his file. The two civil miscellaneous appeals and the revision petition were heard together by the learned Judge who pronounced judgment in the civil miscellaneous appeals which is reported in --'Suryanarayana v. Venkatadu', AIR 1949 Mad 770
(A). The common judgment shows that the civil miscellaneous appeals were dismissed with costs, whereas the revision petition was adjourned for final orders to a later date. Before final orders were passed in the revision petition, the Letters Patent Appeals were filed against the judgment in those civil miscellaneous appeals and all the three have been heard together.
By an order dated 31st October 1952, the learned Chief Justice and Venkatarama Aiyar J. have referred the matter to a Full Bench and that is now these appeals have come up before the Full Bench as constituted. As the facts have been set forth in full in the judgment of Panchapagesa Sastri J. no useful purpose will be served by once more repeating them here.
The main question which has been referred to us for consideration is whether the suit lands which lie within the ambit of the village of Cherichintala in Krishna District are situated in an "estate" as defined in Section 3(2)(d) of the Madras Estates Land Act. If that is so, then the civil courts will have no Jurisdiction to entertain the suits by the plaintiff and the orders of the lower court returning the plaints for presentation to the propef court must therefore be correct. The decision depends upon the true and proper construction to be put upon Section 3(2)(d) as well as Explanation 1 to that section. When the Madras Estates Land Act was enacted for the first time in 1908, Section 3(2)(d) was as follows:
"Any village of which the land revenue alone has been granted in inam to a person not owning the kudivaram thereof, provided that the grant has been made, confirmed, or recognised by the British Government or_ any separated part of such village."
Owing to a variety of reasons, which it is unnecessary to mention at present, there was an amendment to this section by which Clause (d) as it originally stood was removed and a fresh clause substituted by Section 2(1) of the Madras Estates Land (Third Amendment) Act, 1936 (Madras Act XVIII of 1936). Clause (d) as it stands was the result of Madras Act XVIII of 1936 and it runs as follows :
"Any inam village of which the grant has been made, confirmed or recognised toy the Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees."
The old explanations (1) and (2) were renumbered as Explanations (2) and (3) respectively and a new explanation was inserted as Explanation (1) by Section 2(1) of the Madras Estates Land (Amendment) Act, 1945 (Madras Act II of 1945). This explanation is now as follows:
"Where a grant as an inam is expressed to be Of a named village, the area which forms the subject matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name which have already been granted on service or other tenure or been reserved for communal purposes."
It will therefore be seen that the present Clause (d) arid Explanation (1) were the result of subsequent amendment to the original section by the Acts of 1936 and 1945.
2. Two points of- law were raised before the learned Judges of which, in their opinion, the second one had no substance whatever. The contention was that since it is shown from the Inam Fair Register, Ex. P. 1, that from the ayacut of the village, 44 acres 96 cents were deducted as poromboke, It should be held that the grant was not of a named village. As stated by the learned Judges it is impossible to say that the poromboke lands were excluded from the grant at all. The details mentioned in columns 4 and 5 of the Inam Fair Register, extract Ex. P. 1, are intended to find out the exact extent of the cultivable lands which remained in the possession of the grantee in order that the loam commissioner might fix the quit rent. There is no question of the grantee not being entitled to the poromboke lands as a result of this grant.
The question as to how far the so-called exclusion of poromboke or waste land in computing the area of the inam grant would make the grant only of a part of the village, was considered by their Lordships of the Judicial Committee in --'Krishnaswami v. Perumal', AIR 1950 PC 105 (B), and the observations at page 108 snow that the words in the specification "deduct poromboke" do not mean that poromboke. was excluded from the grant, but should be understood as showing that the poromboke, or waste land, was deducted in ascertaining the assessment since such land could not be assessed. It is therefore clear that when in columns 4 & 5 of Ex. P. 1 we find a deduction of poromboke land of the extent of 44 acres 96 cents it was intended only for the ascertainment of the assessment but that the poromboke land should be understood as being included in the land as well. The observations of the Judicial Committee are direct authority for negativing the contention that the exclusion of poromboke would detract from the nature of the grant of a whole village as inam, if otherwise the conditions contained in Section 3(2)(d) of the Act are complied with. We therefore agree with the conclusion arrived at in the order of reference regarding this point.
3. The substantial question which has been argued at considerable length is what exactly is the nature of the grant; whether it is a whole inam village coming within the definition of Section 3(2)(d) or only a part of a village.
4. Exhibit P. 1 is a copy of the Inam Register of Cherichintala village, Gudivada taluk, and it is a confirmation by the British Government of the earlier inam. The document begins by stating that what was granted was Cherichintala village. Columns 4 and 5 show that the entire ayacut of the village consists of an area of 620 acres 86 cents out of which 44 acres 96 cents are deducted as poromboke and 43 acres 15 cents are deducted as minor inams. The residue is an area of 532 acres 75 cents which is taken into consideration for the assessment of the quit rent. It is seen from Ex. P. 1 that the original grantee was one Mantravadi Gangadsra Sastrulu to whom the inam was granted in A.D. 1764 and the document also states that it was granted for Bhattavirthi service. Exhibits P. 4 and P. 5 are copies of the Inam Pair Register regarding the minor inams, in the same village which are for the Devastanams of Sri Venugopalaswami and Sri Someswaraswami. Exhibit P. 3 is another minor Bhattavirthi inam granted to one Eokka Narayana. A comparison of Ex. P. 1, Ex. P. 3 and P. 4 shows that at the time of the grant confirmed by Ex. P. 1 there were already three minor inams, one of them a Bhattavrithi and two Devadayams totally in all 43 acres 15 cents carved out of the village. The remaining area of the village including the poromboke was granted to this Mantravadi Gangadara Sastrulu in A. D. 1764 by title deed No. 1247.
5. Mr. Kotayya invited our attention to Ex. P. 2 an extract from the Oaks Register relating to Gudivada Parghana. Column 1 therein relates to Cherichintala and column 2 refers to an agraharam. Column 4 mentions Kamadana Papayya and Surayya as the grantor, and column 5 shows Mantravadi Oangadhara Sastrulu as the grantee. The date of the sanad is given in column 7 as fasli 1173. The extent is shown as 20.1/2 khats in column 10. How this document would help the contention of the appellant's counsel to show that the grant does not form of an estate has not been explained. Construing the document with the recitals as they stand, it seems to us that there was a grant of a named village to the grantee in fasli 1173. If at all the extract from the Oaks register shows anything, it is more against the appellant's contention than in his favour. But since the learned counsel has not been able to satisfy us as regards its relevancy for the determination of the present question, we do not intend to place any reliance on it.
From a reading of Exs. P. 1, P. 3, P. 4 and P. 5 we are satisfied that the original grant in favour of Mantravadi Gandara Sastrulu was of a named village out of which, at the time of the grant, there were certain lands already granted on service and other tenures and the same have been deducted. It is now settled law that by reason of the amendment made in 1945, which added an explanation to Section 3(2)(d) of the Madras Estates Land Act and numbered as Explanation (1), a grant constitutes an estate if it is expressed to be of a named village irrespective of the fact that some of the lands in the village had already been held on inams or service grants, or were reserved for communal purposes. The crucial point to decide is what was the grant: Whether it purports to be of a particular village.
The reason which necessitated the amendment in 1945 was a decision of this Court in -- 'Ademma v. Satyadhyana Thirthaswamivaru AIR 1943 Mad 187 (C), where the learned Judges held that even if a named village is granted on inam but at that time there had already been some minor inams carved out of the village; then such a village would not be a whole inam village coming within the definition of an "estate" in Section 3(2)(d). Even though the grant comprised the area within the boundaries of the village, still, when it was known that certain acreage of minor inams and other lands had been deducted, it could not be held that the grant was of the whole village. In deciding this the learned Judges had lost sight of the observations of a Bench of this Court in --'Narayanaswami Naidu v. Subramaniam', AIR 1916 Mad 263 at p. 264 (D), where Srinivasa Ayyangar J. observed thus: "The definition in Sub-section 2 Clause (d) was obviously intended to exclude from the definition of 'estate' what are known as minor inams, namely, particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries. The latter are known as 'whole inam villages'. The existence of 'minor inams' in whole inam villages is very common and if these inam villages do not come within the definition of "estate" almost all the agraharam, shrotriem and mokhasa villages will be excluded. This certainly cannot have been the intention of the legislature. These minor inams are generally granted for services to be rendered to the village or to the owner and that seems to be the nature of the minor inams in this case."
It was to set right the uncertainty created by the decision in -- 'AIR 1043 Mad 187 (C)', that Explanation (1) was added to Clause (d) of Section 3(2) thereby accepting as correct the law laid down In -- 'AIR 1916 Mad 263 (D)'.
6. The crucial test to find out whether the, subject matter of a grant falls within the definition of an "estate" in Section 3(2)(d) of the Act Is whether at the time of the grant the subject matter was a whole village or only a part of a village. If at the time of the grant it was only part of a village, then the amending Act makes no difference to this and such a part would not be an "estate" within the meaning of the term. But if the grant was of the whole village and a named one, then it would be an "estate". That the original grant was of a named village with the entire area excepting those excluded is clear from Exs. D. 1 and D. 2 of which the former is a sanad granted to Mantravadi Oangadhara Sastri in fasli 1763, where it Is seen that Cherichintala Agraharam has been granted to him by Kamadana Papayya Garu and Surayya Garu. Exhibit D. 2 dated 10-5-1792 is a more important document being a Purvana issued by the then Collector one Mr. M. Tuder. This is to the effect that Mantravadi Gangadara Sastrulu has an Agraharam called Cherichintala village in the Parghana Gudivada dated fasli 1173 and granted to him. "Though he was not able to produce the regular dumbalahs as per the order of the Board, because he was an instructor of Veda Sastram and was giving charity to poor people, and as he stated that he had no other means of livelihood than this, the purvana was issued for him for fasli 1201."
We have therefore no hesitation Jn coming to-the conclusion that on a consideration of Ex. P. 1, P. 3, P. 4, P. 5 as well as Ex. D. 1 and D. 2 that what was granted was a named village, viz., Cherichintala, as Bhattavirthi inam though at the time of the grant there had been three other inams already created one of which was a Bhatavarthi inam and the other two Devadayam inams. That the mischief created by the decisions in -- 'AIR 1843 Mad 187 (C)' and --'Surireddi v. Agnihotrudu', AIR 1943 Mad 764 (E), has been corrected and rectified by Madras Act II of 1945 has been subsequently explained in various decisions. We need only refer to a few of them, wherein grants similar to the one which we have to consider in this case have been held to be "estates" even though some portions had already been granted for service or other tenures.
7. In -- 'Venkanna v. Lakshmipathi Raju', AIR 1946 Mad 409 at p. 410 (P), Leach C. J. and Lakshmana Rao J. referring to the amendment say as follows:
"Before the passing of this Act (Madras Estates Land Amendment Act, 1945) the law was that unless the evidence showed that the grant was of the whole village, it was not an estate within the meaning of the Madras Estates Land Act, in -- 'AIR 1943 Mad 187 (C)', this court held that where previous inams had been granted, the grant of the remaining lands in the village would not constitute a grant of the whole village so as to make the land granted an estate. The object of the amending Act of 1945 was to ensure that where the grant was expressed to be of a village the lands granted would constitute an estate, notwithstanding that they did not include lands which had been already granted on service or other tenure or reserved for communal purposes. Sub-section (2) of Section 2 gave the Act retrospective effect from the date of which the Madras Estates Land (Third Amendment) Act, 1936, came into force which was the 20th October 1938".
The same Bench again In -- 'Lakshminarasimhacharyulu v. Ratnam', AIR 1948 Mad 195 (G), expressed this opinion in a similar manner:
'In -- 'AIR 1943 Mad 187 (C)', a Division Bench, of which one of us was a member, held that a grant could not be regarded as a grant of the whole village when their were already minor inams and a portion of the village had been reserved by the landlord. The decision was followed in other cases. This resulted in the Legislature amending the Act further. By the Madras Estates Land (Amendment) Act, 1945, an explanation was added to Sub-clause (d) of Clause (2) of Section 3 of the Act and numbered Explanation (1).....It was provided that the amendment should be deemed to have had effect from the 31st October 1936, the date on which the Madras Estates Land (Third Amendment) Act, 1936, came into force. By reason of the amendment made in 1945, it is now the law that a grant constitutes an estate if it is expressed to be of a named village, irrespective of whether some of the lands in the village are already held under inam or service grants or whether there has been a reservation of part of the village for communal purposes. The test is whether the grant purports to be of a particular village."
8. To the same effect is a decision in --'Bapiraju v. Vallayya', AIR 1948 Mad 213 (H).
9. We need not multiply authorities to show that the consensus of opinion in this court is to the same effect. See -- 'L.P.A. No. 56 of 1948 (Mad) (I)', the judgment which confirmed the decision in -- 'C.M.A. No. 479 of 1949 (Mad) (J). In -- 'C.M.A. Nos. 560 of 1947 (Mad) (K)' and -- -'396 of 1948 (Mad) (L)', the decision was that a named village is an "estate" even.though at the time of the grant certain inams described as Deva, Brahmana, and Mirasi Manyams, were excluded from the grant. See also the Judgment in -- 'S.A. No. 1513 of 1948 (Mad) (M)', where it is held that the crucial test for finding out whether the subject matter of a grant falls within the definition of an "estate" in Section 3(2)(d) of the Act is whether at the time of the grant the subject matter was a whole village or was only a part of a village.
10. But it is argued that even if a named village Is granted still, if the deduction had not been of an inam granted for a service tenure, then the named village would not come within the definition of "estate". In other words, in this case since it is found that under Exs. P. 4 and P. 5 the minor inams are Devadayam inams and as such not service tenures, the remaining area granted as Bhatavrthi inam would not be an "estate". Reliance is placed upon the observations of Mahajan J. In -- 'District Board, Tanjore v. Noor Mohamed',
(N), a recent decision of the Supreme Court. At p. 449 of the report his Lordship observes as follows: "The expression 'other tenure' In the explanation should ordinarily be construed ejusdem generis with a service tenure owing to the reason that these service inams usually are resumable and in case of resumable tenures the reversionary right in the land remains in the grantee and therefore even If such resumable tenures are excluded from the grant in substance the grant can be deemed to be of the whole village. The same can be said of lands reserved for communal purposes." Chandrasekhara Aiyar J. the other member of the Bench, expressed himself thus at page 450 of the report:
"Nor is it necessary to hold that the words "or other tenure' in the explanation to Clause (d) of Sub-section (2) of Section 3, must be construed 'ejusdem generis' with 'service'; they are in my opinion" wide enough to include lands granted as personal inams."
As stated by the referring Judges, the observations of Mahajan J. were not strictly necessary for the decision of that case, because his Lordship, on the evidence, came to the conclusion that what was granted was not a whole inam village, as it was not a named village. But the observations are entitled to the great respect and if they are to be understood as laying down the law ] that the exclusion in the explanation must relate either to a service tenure or to a tenure 'ejusdem generis' with service tenure, then it necessarily follows that even if a named village is granted in inam still it would "not be an estate. The contention put forward on behalf of the appellants is that we should read the words "granted no service or other tenure" jointly and not disjunctively and if what is excluded is not a service tenure, then the major inam would not be an estate. On the other hand, the respondent's contention is that we must analyse that part of the sentence in the following manner: "Which have already been granted on service tenure or which have already been granted on other tenure or which have already been reserved for communal purposes." Analysing the sentence in that manner, it would look as if "other tenure" cannot be understood as a tenure of the same genus as "service tenure". That the word "other" when used in such a context cannot have the connotation contended for on behalf of the appellants, is sought to be proved by a reference to various authorities. In 'Ramanatha Aiyar's Law Lexicon at p. 924 the primary meaning for the word "other" is given as:
"Other: Different from that which has been specified; not the same; different. Other always implies something additional or something different. Lord Tenderden said: Where a statute, or other document, enumerates several classes of persons or things, and immediately following and classed with such enumeration the clause embraces other persons or things the word 'other' will generally be read as 'other such like', so that the persons or things therein comprised may be read as 'ejusdem generis', with and not of a quality superior to, or different from, those specially enumerated. The principle of this rule as regards statute was explained by Kenyon C. J. ..........wherein he said that if the Legislature had Meant the general words to be applied without restriction it would have used only one compendious word. Yet, on the other hand, though it is very likely that in former days the doctrine was applied strictly, there are cases which show that the modern tendency is to reject a restricted construction ..........The rule of 'ejusdem generis' is by no means a rule of universal application, and its use is to carry out, not to defeat, the legislative intendment. When it can be seen that the particular word by which the general word is followed was inserted, not to give a colouring to the general word, but for a distinct object, then to carry out the purpose of the statute, the general word ought to govern. It is a mistake to allow the rule to pervert the construction."
11. In Stroud's Judicial Dictionary, 3rd Edn. Vol. 3 at page 2024 the primary meaning of the word "other" is given as follows:
" 'Other' always implies something additional. Other ought to be other in nature, quality and person".
The learned author then discusses the applicability of the 'ejusdem generis' rule of the word "other" hi various statutes.
12. In the application of the 'ejusdem generis' interpretation of the word "other" though prevalent in many statutes, the better view in modern days seems to be that the word should not be so narrowly construed. See the discussion under the heading "Unrestrictedly comprehensive" at pages 2031 to 2034 of Stroud's Judicial Dictionary.
13. In Maxwell's Interpretation of statutes, 8th Edn. at page 244, the learned author discusses the import of specific words of different genera and says that the general principle in question applies only where specific words are all of the same nature. Where they are of different genera, the meaning of the general word remains unaffected by its connection with them. 'Thus where an Act made it penal to convey to a prisoner, in order to facilitate his escape 'any mask, dress, or disguise, or any letter, or any other article or thing' it was held that the last general terms were to be understood in their primary and wide meaning and as including any article or thing whatsoever which could in any manner facilitate the escape of a prisoner, such as a crowbar."
14. It has been said that the 'ejusdem generis' principle cannot be employed to restrict the operation of the Act within narrower limits than was intended by the law-makers. See Crawford's Statutory Construction. We may also refer to page 170 of Craies on Statute Law, 5th Edn. where the learned author says that
"there must be a category and that the 'ejusdem generis' rule is one to be applied with caution and not pushed too far, as in the case of many decisions, which treat it as automatically applicable, and not as being, what it is, a mere presumption, in the absence of other indications of the intention of the legislature. The modern tendency of the law, it was said, is 'to attenuate the application of the rule of 'ejusdem generis'. To invoke the application of the 'ejusdem generis', rule there must be a distinct genus or category".
15. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply. 'Unless you can find a category' said Farwell L. J. 'there is no room for the application of the 'ejusdem generis' doctrine & where the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words. For instance, where a local Act required that 'theatres and other places of public entertainment' should be licensed, the question arose whether a 'fun Pair' for which no fee was charged for admission was within the Act. It was held to be so, and that the 'ejusdem generis' rule did not apply to confine the words "other places" to places of the same kind as theatres. So the insertion of such words, as "or things of whatever description" would exclude the rule.
18. Mr. Kotayya referred to -- 'Subramania v. Kailasanatha', AIR 1934 Mad 258 (2) (O) and --'Sami Ayyangar v. Venkataramana', AIR 1934 Mad 381 (P), as affording examples of tenure which can come within the 'ejusdem generis' rule of other tenures which are partly personal and partly not and he contended that the legislature by using the words "other tenures" could have intended only to bring such tenures into the category. But if we are to look at the intention of the legislature as seen from the objects and reasons published in the Port St. George Gazette it is clear that the legislature did not Intend to restrict the words in this manner. The objects and reasons are as follows: "Under Section 3(2)(d) of the Madras Estates Land Act, 1908, as amended by the Madras Estates Land (Third Amendment) Act, 1936, an inam village of which the grant was made, confirmed or recognised by the British Government is an estate. In a recent case the Madras High Court held that unless the grant was of a whole village it will not be an estate within the meaning of the section. In many cases although the grant was expressed to be of a village, certain small areas therein, which were already enjoyed on service or other tenure were not included in the grant. Such villages were however treated as estates and the ryots therein were regarded as having acquired permanent rights of occupancy. In order to protect their rights the Government considered that Section 3(2)(d) should be amended so as to make it clear that inams of the kind referred to above are estates within the meaning of that section. A Bill for this purpose was published for criticism and after considering the objections and suggestions received, His Excellency the Governor has enacted the Madras Estates Land Amendment Act, 1945."
17. That the general words used should receive a wider Interpretation in a remedial enactment than in a penal enactment is seen from pages 495 & 496 of the Halsbury's Laws of England, 2nd Edn. Vol. 31. We have therefore to look at the nature of the amendment in order to ascertain what was meant by the words "other tenure". As stated already what the Legislature wanted was to rectify the erroneous impression created by the decision in -- 'AIR 1943 Mad 187 (C)'. If, as a matter of fact, the intention pf the legislature had been that only service tenures or tenures of the same genus should be excluded, then it would have been quite easy for the legislature to have used the words "service or similar tenure". If we consider the history of the legislation, viz, Madras Act II of 1945 and the evils which It sought to remedy, then there will be no difficulty whatever in holding that the legislature did not intend to restrict the minor inams to the group of service inams alone. What was intended was that the tenants in a whole inam village ought not to be deprived of the right of occupancy which they would have if it were an estate by the mere fact that some portions of the village had already been granted on some minor inam. We are also not able to see that there is any other class of inams which are of the same genus as personal inams. We therefore feel that the restrictive interpretation sought to be put upon the words "other tenure" would nullify the beneficent effect of the amendment.
18. We are fortified in this conclusion because of the wide meaning that has to be given to the word "tenure" which in its generic sense means "holding or possession of land". Giving the words "other tenure" the common significance attached to such words in English language, we do not see any justification for circumscribing the wide ambit of that expression by stating that only holdings of land which are of a personal nature should come within that expression. The contention of the learned counsel that because under Ex. P. 4 and P. 5 two Devadayam inams are excluded from the grant, the major inams would not be an "estate" cannot therefore be accepted.
19. There is a further point raised by the learned counsel which, as the order of reference states, has not been raised in the courts below and that depends upon the true interpretation of the words "confirmed or recognised by the Government" in Clause (d). The basis of the appellants' contention is that though the original grant might have been of a named village, with all the area comprised within the contours of that region, except the minor inams that have already been granted, still the confirmation by the British Government, as evidenced by the Inam Fair Register, Ex. P. 1, was only of that portion of the village excluding the minor Inams and therefore there has been no confirmation or a recognition of the entire village as such. On this ground, we are asked to say that the major inam would not be an estate. It is true that under Ex. P. 3 an area of 8.48 acres had been confirmed as a Bhatavirthi personal inam on the grandson of the original grantees. Exhibits P. 4 and P. 5 show that an area of 1657 acres each had been granted on Dharma Devadayam to the Devastanams of Sri Venugopalaswami and Sri Someswaraswami respectively. These documents confirm the earlier grants made in favour of those Devastanams. At the very outset we may say that in our opinion the confirmation evidenced by Ex. P. 1 by itself tantamounts to the confirmation of the minor inams as well irrespective of the fact that there has been separate confirmations of the minor Inams.
20. Madras Act VIII of 1869 was intended to clear doubts with regard to the legal import of the title deeds granted by the Inam Commissioner. Section 1 clarifies the situation and lays down that by the grant of a title deed the grantee does not get anything more than what was originally granted but at the same time it also says that the title deed cannot in any way be understood as taking away, or limiting, or infringing, or destroying, the rights which the grantee had. The preamble as well as the section are worth quoting. They read:
"Whereas, under the Rules sanctioned by the Local Government in the year 1859, and published in the Port Saint George Gazette dated the 4th October 1859, for the adjudication and settlement of inam lands in the Madras Presidency, the Inam Commissioner of the said Presidency is required to furnish inamholders with Title deeds in respect of their inams, prepared according to certain forms prescribed by the said Government; and whereas the terms of the title deeds so prepared appear in many cases to convey a more extensive right than was intended to be given, or than could be legally given; and whereas it is apprehended that the terms of the title deeds may be so construed as td affect the rights and interests which other persons may have in lands from which the Inam are derived or drawn, in cases where the Inamholders do not possess the proprietary right in the soil, but only the right of receiving the rent or tax payable to Government in respect of the Inam lands as transferees of the Government, and it is therefore expedient to remove all doubts as to the true intent and meaning of the words used in the said Title deeds; and where the words "land" and "lands" are used in Madras Act IV of 1862 and IV of 1866 to connection with Inams in a sense not applicable to Inams, and it is expedient to explain the true intent and meaning of such words in the said Act; It is' enacted as follows:
1. Nothing contained In any title deed heretofore issued to any inam holder shall be deemed to define, limit, infringe, or destroy the rights of any description of holders or occupiers of the lands from which any inam is derived or drawn, or to affect the interests of any person other than the Inam holder named in the title deed; and nothing contained in Madras Act IV of 1862, or in Madras Act IV of 1866 shall be deemed to confer on any Inamholder any right to land which would not otherwise possess."
21. Sir Lawrence Jenkins in delivering the judgment of the Judicial Committee in -- 'Secy, of state v. Srinivasachariar', AIR 1921 PC 1 at p. 3 (Q), says that the title deed of the Inam Commissioners conferred no higher title than was originally granted. The observations of the Judicial Committee are as follows:
"But it was rightly decided by the final Appellate Bench of the High Court that the title deed of the Inam Commissioners conferred no higher title than was originally granted. There is language in the Act of 1862 that might possibly be read as having the effect for which the plaintiffs contend, but this was corrected by Act VIII of 1369, and it is now clear that though a larger interest was created, nothing done under the Inam Commission could vest in the inamdars a subject matter not already belonging to them".
If, therefore, we correctly appreciate the meaning of the confirmation by the grant of the title deed, then the question does not present any difficulty. But a few previous decisions of this court are quoted before us as showing that when a minor inam is confirmed by the Inam Commissioner separately, then, even if there is a confirmation of the major inam, still that would not make it an "estate" unless the confirmation is of the entire area of the village including a minor inam. Great reliance is placed by the learned counsel for the appellants on the judgment of Subba Rao and Krishuaswami Naydu JJ. in -- 'K. Somasundaram v. State of Madras', (R), in which the learned Judges lay down that the confirmation contemplated in Section 3(2)(d) of the Madras Estates Land Act is confirmation of the grant of a whole village and if at the time of the confirmation the whole village is not available, then the grant of a title deed to a portion of the village would not make it an estate within the meaning of the definition. The facts of that case show that at the time of the original Dharmasanam inam grant in 1774 as seen from the Inam Pair Register, an entire village was granted as Dharmasanam inam but subsequently a portion was purchased by a third party and granted as an inam for the support of a chatram. Therefore by the time the Inam Settlement came, the village consisted of a Dharmasanam Inam of a large portion with some area being held by a chatram for its support. Such being the case, at the time of the Inam settlement, two title deeds were issued one for the Dharmasanam portion and the other for the Chatram. In these circumstances the learned Judge held that the original grant had been split up and what was confirmed at the time of the inam settlement was only a portion of the Dharmasanam village which would not therefore be an estate.
Whatever might be the position created by the subsequent splitting up of a whole inam, after the grant, but prior to the Inam Settlement, as was the case in -- ' (R)', such a question does not
arise in the present case because here, even at the time of the original grant, there were three minor inams and they, had been excluded from the grant of the Inam village. We can therefore steer clear of the conflict of view which has arisen in the decision above cited. In the present case what was confirmed under Ex. P. 1 is exactly and definitely the grant of the original inam and there being no difference whatever between the confirmation and the original grant, the question does not arise here at all. As the matter has been argued at some length before us, we propose to refer to the decided cases and express our views therein.
22. The first case in which this aspect of the question was discussed Is a judgment of Kuppuswami Alyar J. in -- 'Viswanadham Bros., Guntur v. Subbaiya', AIR 1945 Mad 378 (S). What happened in that case was this: There was a original grant of an entire village to a person as a Bhatavarthi Shrotriam inam. After the original grant, but prior to the Inam Settlement, there was a grant by the grantee of some portions of the inam to another person which, was treated as a minor inam. At the time of the settlement, the inam Commissioner confirmed the minor inam separately along with the confirmation of the rest of the Agraharam. The question that was raised was whether in an item of property included within the minor inam, the tenant had occupancy rights.
The learned Judge held that merely because the land in question formed part of an original grant of an entire village, it cannot be said that at the time when it was recognised it was part of the inam in favour of the Agraharam which was recognised or confirmed by the British Government and that hence the land in question cannot be deemed to be part of an estate. There are observations in this case that if there is no confirmation of the entire village as originally granted, then such part of it as remained after splitting up could not be termed to be an estate. But the question did not arise there regarding the nature of the major inam. What the learned Judge held was that in a minor inam there is no occupancy right for the tenant.
23. The next case to which our attention is drawn is the judgment of Happen J. in -- 'Achyuta Ramayya v. Akkayya', 1946-2 Mad LJ (SN) 19 (T), where also the question that fell for decision was with regard to the right of occupancy in a minor inam created subsequent to the origin of the inam itself. The learned Judge, following the decision of Kuppuswami Aiyar J. above cited held that where there is a subsequent grant out of a larger grant which had been separately confirmed at the time of the Inam Settlement, the subsequent grant cannot be said to be a portion of an estate, especially since the minor inam was confirmed separately and was not included in the inam which was confirmed as a whole and could not be regarded as a part of the estate which that inam is by virtue of the confirmation. Even here, as in the previous case, the nature of the major inam, after deducting the portion alienated, never came up for consideration.
These two decisions were considered and followed by Shahabuddin J. in -- 'Mangamma v. Appadu', AIR 1948 Mad 315 (U), where the facts were not similar to the earlier cases. Where two parcels of land which originally formed part of an inam village were treated, even before the inam settlement, as separate grants and at the time of the settlement were confirmed under two title deeds, the learned Judge came to the conclusion that the lands comprised in one of the title deeds did not form part' of an estate within the meaning of the definition and the tenants therefore cannot claim any occupancy rights. Though the facts were dissimilar, the learned Judge Shahabuddin J. did not seem to discern the distinction between the case before him and the earlier ones. There is very little discussion of the two cases and all that the learned Judge says is that in both cases there were two title deeds Issued at the time of the Inam Commission even though the original grant was of a whole village. He applies those decisions to the facts of the case before him.
24. In -- 'Kankatala Ghantayya v. Hari Lakshmipathi', 61 Mad LW (SN) 91 (V), Satyanarayana Rao J. followed the decision 01 Kuppuswami Aiyar J. above mentioned and held that since the minor inam was separately confirmed at the time of the Inam Commission by the Inam Commissioner the tenant of lands included in that minor inam cannot claim any occupancy rights. Here also the carving out, or the creation, of a minor inam was subsequent to the original grant by which not only the major inam also that was confirmed by the Inam Commissioner but the minor inam were granted as one unit to the original grantee. The learned Judge held that when the two grants were separately confirmed it must be taken that the Government did not treat the minor inam as part of the Agraharam grant but being outside its purview and therefore the minor inam cannot be treated as part of an estate, though the major inam may be ah estate under Act II of 1945.
Though the question for consideration related to a piece of land situated in the minor inam, the observations of the learned Judge seem to take it that the major inam, i.e., the larger area of the original grant which was confirmed in favour of the earlier grantees' heirs, would form part of an estate. If at all, this judgment is against the contention of the appellants. The decisions of Kuppuswami Aiyar J. and Sahabuddin J. were again considered and followed by Krishnaswami Naydn J. sitting alone in -- 'Ramaswami v. Jagannathaswami', (W). Even here the question was whether an item of
property included in the minor inam can be said to be a portion of an estate and the learned Judge held that it was not.
But on carefully examining the facts of that case it will be seen that the minor inam must have come into existence even before, or contemporaneous with, the original grant and such being the case the facts of this case have some resemblance to the one before us. There was no question about the nature of the major inam at all. But even then if there was a minor inam in existence at the time of the original grant which was of a named village, then the confirmation by the British Government separately of the original grant and the minor inam and the issuing of separate title deeds should be understood as the confirmation of the original grant as such. The mere fact that the minor inam was separately confirmed is an indication that the major inam also has been confirmed with the result that what was confirmed at the time of the Inam Commission was the entire entity which formed the original grant. Looked at in that way the application of the decisions in -- 'AIR 1945 Mad 378 (S)' and -- 'AIR 1948 Mad 315 (U)', to the facts of the case before Krlshnaswami Nayudu J. cannot be said to be quite apposite.
25. We may also refer to a decision of Subba Rao and Panchapakesa Aiyar JJ. in -- 'Srinivasa Ayyengar v. State of Madras',
(X). In that case, from out of the original grant in inam of an entire village, the British Government confirmed at the time of the inam Settlement only 15/16th part of the village because the remaining 1/16th part had already been resumed. The learned Judges held that the confirmation of 15/16th part of the village would not make it an estate within the meaning of Section 3(2) (d) of the Act, the reason being that what was confirmed was not exactly the same acreage, or extent, or the quantum, of what was originally granted. The learned Judges followed the decision of Kuppuswami Aiyar J. and Shahabuddin J. adverted to earlier, and distinguished the Privy Council decision in -- 'AIR 1950 PC 105 (B)'.
The last case which we have to consider is the case reported in -- 'AIR 1953 Mad 248 (R)', already referred to above. Krishnaswami Nayudu J. in that case took the view that it is the title deed that determines the extent and scope of the grant and if from the title deed it is seen that what was confirmed by the British Government is not the exact area of what had been originally granted, but only a remaining portion after deducting certain lands which had gone out of the grantee, either by alienation or otherwise, then the grant would not be an estate. Subba Rao J. though agreeing with Krishnaswami Nayudu J. on the principle of 'stare decisis' stated his view in the following words at p. 252
"I would like to lay down the following simple formula which would steer clear of all the difficulties; First find out whether the original grant was of the whole village. If it is established, the next question is whether the confirmation or recognition was of the entire grant or a part of the grant. If the entire grant was confirmed or recognised, the process of confirmation or recognition or the fact that different title deeds were issued or the grant was recognised by separate acts should not matter, for in either case the original grant which was of the entire village should be confirmed or recognised by the British Government".
We are inclined to agree with the view taken by Subba Rao J. what has to be found out is the extent and nature of the confirmation. What the section posits is that the grant should be confirmed or recognised and not the area or the extent in existence at the time of the inam settlement. When the Inam Commissioner after taking into consideration all the information placed before him regarding the original grant, issues a title deed with regard to a portion of the acreage of the original inam, by that process it should be deemed that he has recognised the original grant. It does not matter that at the time of the settlement portions of the original grant happened to be in the possession of different individuals. But if the total quantum of the original grant was recognised by the issuing of separate title deeds, even then it must be said that the original grant has been confirmed or recognised. The crucial factor is that the Inam Commissioner should recognise or confirm the entire area of the original grant as an inam though the result of such confirmation might be the grant of different title deeds separately to different individuals. It is not the multiplicity of title deeds that matters; but it is the fact that the entire area originally granted retains its character as an inam. Viewed in that light it does not matter whether for the minor Inams created subsequently separate title deeds have been issued at the time of the confirmation. In our opinion the reasoning of Subba Rao J. is the proper view to be accepted.
26. But as stated already in the present case what was confirmed under Ex. P. 1 is exactly what was granted at the time of the original grant and therefore the questions discussed above do not strictly arise for consideration. The decision of Panchapagesa Sastri J. is right and these Letters Patent Appeals are dismissed with costs (one set). The civil revision petition also is dismissed.
Basheer Ahmed Sayeed, J.
27. I have had the benefit of reading the judgments of my learned brothers Govinda Menon and Venkatarama Aiyar JJ. I agree with them that these Letters Patent Appeals and the civil revision petition must be dismissed for the reasons set out in those judgments. Whether the original grant is of a named village is always a question of fact, and the contents of Ex. P. 1 in the present appeals and the other documents do not admit of any doubt in that regard. Therefore, the area which forms the subject matter of the grant must be deemed to be an estate within the meaning of the Estates Land Act as amended, not withstanding the fact that the original grant did not include certain lands in the village which had already been granted on service or other tenure. Even so, the exclusion of certain poromboke lands which has been done only for the purpose of computing the assessment that is to be paid by the grantee, cannot be said to detract from the character or the nature of the grant which is of a named village.
28. The learned counsel for the appellants has conceded that only what was originally granted has been confirmed by the Inam Commissioner so that the requirements of Section 3(2)(d) of the Madras Estates Land Act in regard to confirmation or recognition by the Government has been fully satisfied. There is, therefore, no point in the contention that the entire village as such has not been confirmed or recognised by the Government when the title deed was granted. A correct understanding of the section does not lend itself to the interpretation that the confirmation that is contemplated under the section should be that of the area. On the other hand the confirmation or recognition is required to be only that of the grant. Therefore, the fact that the title deed issued to the grantee by the Inam Commissioner did not include some minor portions which had been already granted as minor inams cannot be said to detract from the character of the grant of the whole village. Similarly, the issue of separate title deeds in respect of minor inams could, not also alter the character of the main inam which, in this case, is again that of a named village.
29. My learned brother Govinda Menon J. has in his very exhaustive judgment discussed the question raised by the learned advocate for the appellants that, in order to bring the inam within the meaning of an estate, the minor Inams granted should be of the same nature as a service tenure and has held that this contention is wholly untenable. With respect, I agree, with him in the reasoning given in his judgment that the principle of 'ejusdem generis' cannot be invoked on any inter pretation of the words "service or other tenure" used to the amended section. Both my learned brothers have further considered the scope of the earlier decisions of single Judges and Division Benches of this court on the implications involved in the issue of separate title deeds by the Inam Commissioner to holders of different extents comprised in the same village but granted subsequently to the inam grant and their bearing' of such confirmations on the questions whether they would or not alter the nature of the grant as coming within the scope of the amended Section 3(2)(d) and the explanation thereto. With respect I agree with the views expressed by my learned brothers on this point. My brother Venkatarama Aiyar J. has gone into these questions more elaborately and I do not feel called upon to add anything thereto.
30. The result would be that the inam in question will be an estate and it would be outside the Jurisdiction of the Civil courts.
Venkatarama Aiyar, J.
31. I have had the advantage of reading the judgment Of my learned brother Govinda Menon J. and I am in complete agreement with it. If I add a few Words of my own, it is out of deference to the learned Judges of this court from whom we are differing on the question, whether to constitute an estate under Section 3(2)(d) of the Estates Land Act there should not merely be a grant of a whole village, but further whether the confirmation of that grant should also be by a single title deed. We start with this, that the original grant in favour of Mantravadi Gangadhara Sastrulu in A. p. 1764 was, by reason of Explanation I, of an entire named village of Cherichintala, notwithstanding that portions thereof had been already granted as inams as evidenced by Exs. P. 3, P. 4' and P. 5. Then the only other question to be decided under Section 3(2)(d) is, whether that grant had been confirmed or recognised by the British Government. There is no dispute before us that what was confirmed under Ex. P. 1 is precisely what was granted in 1764 to Mantravadi Gangadhara Sastrulu.' Thus, all the requirements of Section 3(2) (d) would appear to be satisfied and the conclusion should follow that the suit lands are situated within an estate as defined therein.
32. Mr. Kotiah, the learned advocate for the appellants argues that the grant in favour of Mantravadi Gangadhara Sastrulu in 1764 was not in fact of the entire village because portions thereof had been already granted, as seen from Exs. P. 3 to P. 5; that it is only by importing the fiction enacted in explanation I that the grant is deemed to be of the entire village, but that that fiction does not extend to confirmation of grants; and that the result accordingly is, that as the confirmation is in fact of a portion of a village, there is no confirmation of the grant of an entire village and no estate as defined in Section 3(2)(d). But, there is nothing in the language of the Explanation to limit its operation to the grant and to exclude confirmation thereof from it. It governs the whole of Section 3(2)(d) and the word "village" in the body of the section must, therefore, bear the meaning given to it in the explanation, in its application both to the grant and to its confirmation. Any other construction would plainly defeat the purpose for which the explanation was enacted by Madras Act II of 1945.
In -- 'AIR 1916 Mad 263 (D)', it was observed by this court that the existence of service inams and dharmadaya inams was very common in villages and that where there was a subsequent grant of the village, to hold that such grant is not an estate as defined in Section 3(2)(d) by reason of the existence of minor inams would result in the exclusion of agraharams, shrotriams and mokhasa villages from the operation of the Act & that that could not have been the intention of the Legislature. This interpretation of Section 3(2)(d) was accepted without question until the decision --AIR 1943 Mad 187 (C)', where for the first time a different note was struck. It was held therein that where portions of the estate had previously been granted as minor inams, a subsequent grant of the rest of the village was not an estate as it was not of the whole village. The Legislature thereupon intervened and enacted explanation I with the object of restoring the view of the law which had been held before the decision in --AIR 1943 Mad 187 (C)'.
Now. if we are to adopt the construction contended for by the appellants, the result will be to render the explanation nugatory because as the grants of minor inams would be in favour of different persons and of different portions of the village, separate inam title deeds would have been issued in respect of those grants and the confirmation of the subsequent grant of the village must necessarily have been by a different title deed and the consequence of it is, according to the appellants, that the village is not an estate as defined in Section 3(2)(d). In other words, the Explanation must be held to have failed to achieve :the purpose for which it was enacted. A construction which leads to such a result must be avoided.
33. But then it is argued that decisions of this, court have established that even though the original grant might have been of the whole village, when the confirmation thereof is in parts and separate title deeds are issued, the grant is not an estate, as defined in Section 3(2)(d); and that accordingly it should be held that the grants as confirmed in Exs. P. l, P. 2, P. 3 and P. 4 are none of them estates. The earliest of these decisions is -- 'AIR 1945 Mad 378 (S)'. There, the facts were that the village of Sripuram was granted as Bhattavirthi inam to one Vedachala Rangacharlu; and subsequent thereto there was a grant by the Inamdar of one acre out of it to the predecessor in title of the plaintiff. At the time of the Inam settlement both the original grant to the inamdar and the subsequent grant by the inamdar were confirmed and separate title deeds were issued. The suit out of which the appeal arose was instituted in the court of the District Munsif of Tenali to eject the tenant who was in possession of the one acre of land. The defence was, that the holding was part of an estate and that the Revenue court alone had jurisdiction to entertain the suit. In rejecting this contention, Kuppuswami Aiyar J. observed as follows: "The answer to the question as to whether the confirmation or recognition by the British Government was in respect of the entire inam village or of only a portion is the basis for the decision as to whether the land was an estate or not. In this case, Exs. I and II show that the grants were confirmed separately and independently of each other." He accordingly held that the suit lands did not form part of an estate and that the civil court-had jurisdiction.
34. This decision was followed in a number of cases, to which reference must now be made. In. -- '1946-2 Mad LJ (SN) 19 (T)'. the original grant was of the whole village called Padala Mokhasa; there was a subsequent grant of a portion of it by the Mokhasadar; and the inam Commissioner issued separate title deeds in respect of both the grants. It was held by Happell J. following -- 'AIR 1945 Mad 378 (S)', that the grant by the Mokhasadar was not an estate as defined in Section 3(2)(d) of the Madras Estates Land Act.
In -- 'AIR 1948 Mad 315 (U)', the facts found were that from the very beginning there were two distinct and independent grants of portions of villages; and both of them were confirmed by the Inam Commissioner; and two title deeds were issued therefor. It was accordingly held by Shahabuddin J. that there was no proof that the entire village had been granted in Inam. On this finding, no further question arose as to the nature and effect of the confirmation of the grant. But Shahabuddin J. referred to the issue of two title deeds by the Inam commissioner and following the decisions in -- 'AIR 1945 Mad 378 (S)' and --'1946-2 Mad LJ (SN) 19 (T)', held that there was no confirmation of the grant of a village under Section 3(2)(d).
In -- '61 Mad LW (SN) 91 (V)', the suit lands were situated within the village of Pannada. In 1710 that village was granted as Inam to Srirangam Garu and: two others and the finding of the Subordinate Judge was that the suit lands were not comprised in that grant. The Inam Fair Register showed that those lands were "granted some time before Fasli 1231 by some unknown person to another unknown person". Both these grants were confirmed by the Inam Commissioner and separate title deeds issued. On these facts, Satyanarayana Rao J. held that the decision in -- 'AIR 1945 Mad 378 (S)', applied, and that "the effect of the confirmation was to validate the grant of the minor Inam, just as the effect of the confirmation of the grant to the village was to validate the original grant."
In -- ' (W)', the facts were that in 1731 A. D. the
village of Saukarshanapuram was granted as an Agraharam Inam. The Inam fair Register disclosed that out of the total gudicat of the village, 32 acres 58 cents were excluded as poromboke; 59 acres 53 cents were deducted as minor inams, and the balance of 247 acres 35 cents was granted as an Agraharam. One of the minor Inams which was included in the total of 59 acres 53 cents was a grant of 7 acres 33 cents. The Inam Commissioner issued one title deed in respect of the Agraharam grant of 1731; and another in respect of the minor Inam of the extent of 7 acres 33 cents. The point for decision in the suit was whether this minor inam was an estate as defined in Section 3(2)(d) of the Madras Estates Land Act. Following the decisions in -- 'AIR 1945 Mad 378 (S)', -- '1940-2 Mad LJ (SN) 19 (T)' and -- 'AIR 1948 Mad 315 (UX, Krishnaswami Nayudu J. held that it was not.
In -- ' (R)', the question was whether the villages of Sudiyur and Perungarai were estates liable to be notified under the Madras Act XXVI of 1948. The facts found were these: The entire village of Sudiyur was granted as Dharmasanam Inam in 1774. In 1794 one Marudu purchased a portion of the village from the Inamdars and dedicated it to a chatram. The Inam Commissioner confirmed both the grants; and issued two title deeds, one in favour of the chatram for the portion dedicated in 1794; and another in favour of the inamdars for the rest of the village. There was likewise a grant of the entire village of Perungarai to the Mahajanams as a Dharmasanam Inam and a portion of it came to be subsequently settled on the sudiyur Chatram. The Inam Commissioner confirmed all these grants and issued two title deeds, one to the Mahajanams and the other to the chatram in respect of the portions of the village respectively belonging to them. The question was whether the Dharmasanam grants of the two villages were estates under the Act.
Krishnaswami Nayudu J. held on a review of the authorities cited above that though the grants themselves were of the entire villages, there was no confirmation of the grant of the villages as required by Section 3(2)(d) inasmuch as the confirmation was of different portions of the estates under different title deeds and that therefore they were not estates as defined in Section 3(2)(d). subba Rao J. differed, but in view of the numerous authorities cited above, he did not dissent from the decision of Krishnaswami Nayudu J. On the strength of these authorities, the appellants contend that the grant of the village in favour of Mantravadi Gangadhara Sastrulu in 1764 could not be held to be an estate as the Inam Commissioner issued separate title deeds Exs. P. 1, P. 3, P. 4 and P. 5 with reference to different portions of the village.
35. Before discussing these authorities, it will be useful to examine the circumstances under which and the purposes for which enfranchisement proceedings were instituted by the Government. It had been the immemorial practice of the sovereigns of this country, Hindu and Moslem, to make grants to religious institutions, to learned men, and men of piety, as also for services, rendered or to be rendered. The British Government continued this practice for some time. Vide -- 'Secretary of State v. Krishnarao', AIR 1945 PC 165 (Y), but subsequently discontinued it. During the latter half of the 18th century, when South India was in an unsettled condition, owing to the absence of a strong central Government, military chieftains usurped power in various parts of the country and purported to exercise sovereign powers and to make grants. After the British became rulers of this country, they decided, to investigate the titles put forward under Inam grants and enacted Regulation 31 of 1803 for that purpose. Questions also arose as to whether any of the inams had lapsed, in which even the Government claimed them by right of reversion. There was also a proposal by the Government to release their reversionary interest in the Inams for proper consideration,
In 1859 the Government framed rules for a comprehensive investigation of all these matters; authorities were constituted for holding an enquiry under the Rules; and title deeds were issued in accordance with their decision. It will thus be seen that the object of the inquiry was to discover whether the Inams were true and whether they were granted by persons having authority in that, behalf; and to protect the reversionary right of the Government. Therefore, when a title deed was issued it merely meant that the Government had satisfied itself about the truth and validity of the grant; and it is in this sense that it is confirmation of the original grant. The title deed, however, did not operate either to enlarge or abridge the rights of the Inamdar under the grant; nor did it affect the rights of other persons such as tenants on the land. Vide Madras Act VIII of 1869, and -- 'AIR 1921 PC I at p. 3 (Q)'.
Such being the nature and effect of enfranchisement proceedings, it has now to be considered. what the precise import of the words "any inam village of which the grant has been made, confirmed or recognised by the British Government" occurring in Section 3(2)(d) is. The confirmation referred to in the section is clearly the confirmation by the Inam commissioner. Vide -- 'G. Sam v. Ramalinga Mudaliar', AIR 1917 Mad 281 at p. 284 (Z) and that confirmation has, as already mentioned, reference to the truth and validity of the Inam. In other words, the confirmation is of the act of making a grant, and has no relation to the extent of the properties covered by it. If the Government was satisfied that the grant was true and made by a proper person, then it was to confirm it. If not, it was to refuse to confirm. There can be no question of a grant being confirmed in part and disaffirmed in part. The Government may in confirming a grant, resume a portion of it. But that is not the same thing as disaffirming the grant in part; the very act of resumption proceeds on the recognition of a preexisting grant.
36. That this is the correct interpretation of Section 3(2)(d) is borne out by reference to other portions of the section, starting with the hypothesis that there was at the outset a grant of an entire village as Inam, if at the time of the enfranchisement there is resumption by the Government of a portion of the village and the issue of an Inam title; deed in respect of the rest of it, the later will be an estate under Explanation 3. But if instead of resumption, there is an Issue of a title deed as regards a portion of the village and of another in respect of the rest of it, the latter will not be an estate. Can any reason be suggested for this differentiation? In the above illustration, if the Government regrants that portion of the village which was resumed, that again will become an estate under that explanation. But if the same portion of the village reaches the grantee under a title deed issued in recognition of the previous grant and not under a regrant, it will not be an estate. On principle, why should there be this difference?
Then again, if the Government issued one title deed setting out therein the names of the different grantees and their respective interests, the grant will be an estate, as the confirmation is in one title deed. Is there any reason why the same result should not follow, when for convenience separate title deeds are issued in favour of the several grantees? The section provides that if the original grant was of the whole village, it will be an estate, "notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees".
When there has been partition and separate title deeds have been issued in favour of the several branches, that would clearly not affect the character of the grant as an estate. Why should the issue of separate title deeds be regarded as a determining factor in other cases under the section?
It will be noticed that for purposes of the section, recognition of the grant of an entire village Inam stands on the same footing as its confirmation; and there is authority that such recognition could be implied from conduct and even from inaction. Vide -- 'Ramalinga Mudali v. Ramaswami Ayyar', AIR 1929 Mad 529 at p. 534 (Z1). In such a case, where does a title deed come in as a decisive element? A reading of the section as a whole, therefore, leads to the conclusion that what is material under the section is the confirmation of the act' or transaction of grant, that the issue of a title deed is a matter of mere procedure, and that its value is evidentiary. This is in accordance with the views expressed by Subba Rao J. in --'' (R)'.
37. -Turning now to the authorities cited by the appellants, in -- 'AIR 1945 Mad 378 (S)', there was to begin with a grant of the entire village as inam and a subsequent grant of a portion of it by the Inamdar. The question raised was whether the latter grant was part of an estate and the decision was that it was not. After referring to the fact that the confirmation had been made under separate title deeds, Kuppuswami Aiyar J. went on to observe:
"So, merely because it formed part of the original grant of an entire village of Agraharam it cannot be said that at the time when it was recognised this was part of the inam in favour of the Agraharam which was recognised or confirmed by the British Government".
The ground of the decision appears to be that the confirmation of the minor grant under a separate title deed signified that it was not confirmed as part of the original grant of the village and it could not therefore be regarded as part of it. But the minor Inam is only a derivative grant depending for its validity on the grant of the village in favour of the Inamdar. The title of the holder of the minor inam could not be confirmed unless and until the grant of the village in favour of the Inamdar was confirmed. The issue of a separate title deed in favour of the minor grantee can only be on the basis of a confirmation of the grant of the village in favour of the Inamdar and as part of that process. Nor is there any ground lor holding that the issue of a separate title deed implies that to that extent there is no confirmation of the original grant; it amounts at the least to a recognition of the grant in favour of the Inamdar and that is sufficient to satisfy the requirements of Section 3(2)(d).
The facts in -- '1946-2 Mad LJ (SN) 19 (T)' were similar and the decision therein is open to the same criticism as -- 'AIR 1945 Mad 378 (S)'. In -- 'AIR 1948 Mad 315 (U)', the finding was that there was at no time any grant of an entire village. On that the question as to the effect of Issuing two title deeds did not arise.
38. Though -- ' (W)', purports to follow the decisions in -- 'AIR 1945 Mad 378 (S)', -- '1946-2 Mad LJ (SN) 19 (T)" and -- 'AIR 1948 Mad 315 (U)', it materially differs from them on the facts. There, the minor inam was in existence on the date of the grant of the village as an Agraharam. The Agraharam grant would, therefore, be a whole village under explanation I and as it was confirmed in its entirety that would clearly be an estate as defined in Section 3(2)(d). The point for decision in that case was whether the minor inam was an estate. It clearly was not and that is what was decided by Krishnaswami Nayudu J. He also observed that the Agraharam grant would, on the other hand be an estate. With that observation I agree.
In -- '61 Mad LW (SN) 91 (V)', the question arose with reference to a minor inam. The Subordinate Judge has found that the lands comprised in that inam were not included in the Agraharam grant. They must, therefore, have been granted prior to it. It was, therefore, clearly a minor inam and not an estate as defined in Section 3 (2)(d). That was the decision of Satyanarayana Rao J. and that is clearly right. The learned Judge went On to add that the Agraharam grant which was confirmed under separate title deed would be an estate and that is the position here. It is true that both in -- '61 Mad LW (SN) 81 (V)' and -- ' (W)', the decision in -- 'AIR 1945 Mad 378 (S)', was referred to with approval. But that was not material for the decision.
In -- ' (R)', the facts were similar to those in --
'AIR 1945 Mad 378 (S)' and -- '1946-2 Mad LJ (SN) 19' (T), there was first a Dharmasanam grant of the whole village and subsequently there were grants of portions thereof in favour of a chatram and separate title deeds were issued both to the Inamdar and to the chatram. The question whether it was an estate arose with reference to the grants in favour of the Inamdars and in this respect the case differs from -- 'AIR 1945 Mad 378 (S)' and -- '1946-2 Mad LJ (SN) 19 (T)'. It was held by Krishnaswami Nayudu J. that it should logically make no difference whether the question was raised with reference to one portion of the village or another because if the effect of issuing separate title deeds was that there was no confirmation of the grant of the whole village, no portion of the estate comprised in any of the title deeds could be regarded as estates and that the Dharmasanam grants should, therefore, be held to be not estates, in the view which I have taken that the decisions in -- 'AIR 1945 Mad 378 (S) and -- '1946-2 Mad U (SN) 19 (T)', are erroneous, it should follow that the decision in -- ' (R)', which Is based thereon should also be held to be erroneous.
The position may be thus summed up: (1) Where there is a grant of a village of which portions have been previously granted as minor inams, such a grant constituting an estate under Explanation I to Section 3(2)(d) of the Estates Land Act, and the grants of the village and of the minor inams are confirmed under separate title deeds, the village is an estate as defined in that section, but not the minor inams. (2) Where there is a grant which comprises, either in fact or by reason of the Explanation to Section 3(2)(d), a whole village and the Inamdar subsequently transfers portions of the village and the Inam Commissioner issues separate title deeds to the Inamdar as well as his transferees, there is a confirmation of the original grant as required by Section 3(2)(d). The Inamdar will be an estate holder and his transferees, landholders entitled to portions of the estate and it is the Revenue Courts that have jurisdiction with reference to him. In this view, the decisions in -- 'AIR 1945 Mad 378 (S)', -- '1946-2 Mad LJ (SN) 19 (T)' and -- ' (R)', must be held to be
erroneous. The decisions in -- 'AIR 1948 Mad 315 (U)', --'61 Mad LW (SN) 91 (V)' and -- ' (W)', are correct, though the
approval of --'AIR 1945 Mad 378 (S)', therein cannot be supported.
39. It was finally argued by Mr. Kotiah that as there has been a long course of decisions holding that the confirmation of a grant under separate title deeds would take it out of Section 3(2)(d) of the Act, the reversal of that course now would be productive of much inconvenience and hardship and that it was a case for the application of the maxim "stare decisis". But I am not aware of nor have the appellants been able to point to, any decision prior to -- 'AIR 1945 Mad 378 (S)', in which that view had been taken. On the other hand, the issue of separate title deeds has never been understood as a material or relevant factor in deciding whether there had been a confirmation of the grant.
In -- 'Srungaram Venkatacharyulu v. Pillamsetti Ramachandra Rao', C.M.A. No. 79 of 1942 (Mad) (Z2), the facts were that the village of Kondur was granted as inam in 1749 and subsequently there had been grants of small extents by the Inamdars. The Inam Commissioner issued separate title deeds in respect of the original grant as well as the subsequent minor grants. The holder of a minor grant filed a suit in the court of the District Munsif of Gudivada for recovery of rent. The defendant resisted the suit on the ground that the lands were parts of an estate and that it was only the Revenue Courts that had Jurisdiction over the subject matter. Leach C. J. and Lakshmana Rao J. held confirming the Judgment of the District Judge, that the lands were "part of an estate within the meaning of Section 3(2)(d) of the Act and that it was the Revenue Court that had the jurisdiction." No question was raised that the issue of several title deeds made any difference in the application of Section 3(2)(d).
In -- 'Venkatarangacharyulu v. Ganganna', 1950-2 Mad LJ 443 (23), the question was whether the grant of the village of Patha Pentapadu made in the year 1744 was an estate. The facts found were that portions of the village had been previously granted as Bhattavrithi and Devadayan inams and these were excluded in the grant of 1744. The Inam Commissioner issued separate title deeds to the holders of the minor inams and to the Inamdar of Patha Pentapadu. The contention on behalf of the Inamdar was that it was not an estate because, firstly the grant was of a hamlet and not of a whole village and secondly as separate title deeds had been issued there was no confirmation of the grant of the entire village. Patanjali Sastri and Bell JJ. held that what was granted was only a hamlet and that, therefore, it was not an estate. With reference to the contention based on the issue of separate title deeds, the court observed:
"In the view we have expressed above, it becomes unnecessary to consider the correctness or otherwise of the decision of a single Judge of this Court in -- 'AIR 1945 Mad 378 (S)', which was followed by another learned Judge in -- '1946-2 Mad LJ (SN) 19 (T)'."
It cannot, therefore, be said that there has been any such long and uniform course of decisions as would justify the application of the maxim "stare decisis". The following observations in -- 'Sheo Soondary v. Pirthee Singh', 4 Ind App 147 at p. 151 (PC) (Z4); might be quoted:
"These decisions come near together in point of time. They are not decisions running over a long period of years, which might in that case be considered to have declared the law with regard to the succession to property, and which under such circumstances their Lordships would have been unwilling to disturb; but they are decisions of a recent date and coming very nearly together."
40. In the result, the grant confirmed In Ex. P. 1 must be held to be an estate as defined in Section 3(2)(d) of the Madras Estates Land Act and the appeals and the revision petition dismissed with costs as provided in the judgment of Govinda Menon J.