Walter Schwabe, C.J.
1. The question referred to the Full Bench is: 'Where a Zemindar makes a post settlement Inam giant of a portion of a village with both verams on a permanent kattubadi, is the grantee a landholder within the meaning of Section 3(5) of the Madras Estates Land-Act?'
2. It is not part of the duty of the Full Bench to answer hypothetical questions; and this question must be read in the light of the facts of the case to mean 'where a Zemindar makes a post settlement Inam grant of a portion of a village on the terms of the document of February 7, 1875, Exhibit A, is the grantee a landholder within the meaning of Section 3(5) of the Madras Estates Land Act?' By the document the Zemindar of Pittapur assigned to the grantee a portion of the village, with a cist of Rs. 58 in perpetuity and to be used as the grantee pleased. Before that date there had been a grant to another for a term on a cist of Rs. 158. Rs. 100 was stated in the document to be struck off as the grantee proved himself worthy of the Raja's favour and had been rendering services properly. It is not clear to me that by this document the Zemindar granted both varams. The words 'Melvaram' and 'Kudivaram' seem to be properly used for a landlord's and tenant's share of the produce of land, and it also seems that these terms are, in their strict meaning, only properly applicable when the one bears a proportion to the other. The payment by the tenant of a fixed rent or cis1 is inconsistent with any such proportionate division; and I venture to doubt if the terms are properly applicable at all when a fixed rent is payable. They are, however, loosely used to represent the landlord's and the tenant's interests in the land, but this also must be qualified by adding the word hypothetical, because, if there is a fixed rent, it would seem that that Is not necessarily the melvaram. In such a case, the melvaram is said to be the proportionate amount the landlord would receive according to the custom of the locality, if he, in fact, was receiving a proportion. Similarly, I am told that the kudivaram is not what the tenant gets in fact, but what he would, by the custom of the locality, get. It is, however, said that in a case where there is a fixed rent only if the rent payable is the full rental value, is it properly described as melvaram and the tenant's right is only then properly called kudivaram. This can hardly be correct, because ex hypothesi the melvaram, properly so called, is a proportionate amount and cannot be fixed; for a sum which in a full year may represent properly the proportion, in a lean year would not. It is to be observed that the word 'melvaram' is not used in the Statute and the word 'kudivaram' is used only once and then without definition. Whatever may be the. proper interpretation of the word 'melvaram,' I cannot see that can, in this case, be said to have been granted by the document. It was argued that, if Rs. 158 had been fixed as the rent, then the melvaram would not have been granted at all; but that as a rebate of the rent was granted in consideration of past services, it must be taken that the melvaram was granted to the tenant. I could understand the argument that a part of it must then have been granted, but I do not follow the argument that it was granted as a whole. Therefore, I do not think the question as framed really arises.
3. The question to be decided turns on the definition of 'landholder' in Section 3(5). In Section 3(2) there is a definition of estate and the definition does not include a portion of a village. A 'landholder' is defined as a 'person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner.' The effect of the Act is to oust the jurisdiction of the Courts in respect of many matters between land-holders and the actual cultivators; and it is a well-known canon of construction that there is a strong leaning against construing a Statute as ousting or restricting the jurisdiction of the ordinary Courts, and it follows that, if there are two meanings which could equally well be given to a Statute, by one of which the jurisdiction is ousted and by the other not, the construction to be adopted is the latter. There has been so great a difference of opinion among the Judges who have had to construe this Act that it is difficult to say that the section does not bear either of the two meanings, and it would be sufficient to rest my judgment on the ground that this section is open to both the constructions. But, in my judgment, the grantee of this property is not a person 'owning an estate or part thereof.' I think that the land is part of an estate, but, in my judgment, the grantee or, as he is called, 'minor Inamdar' does not own the estate but holds it in perpetuity for the payment of what is properly described as a fixed rent. Further, it is not at all clear that the Zemindar has parted with all rights in the land other than that of receiving this fixed rent; for instance, the right to minerals probably remains in the Zemindar. Owner is not a word of art but an expression in common use, I think if the question were put, 'who is the owner of the land,--the Zemindar or Inamdar?' the answer would be, 'the Zemindar.' In taking the view that such an Inamdar is not a person owning the estate, I am supported by nearly all the Judges before whom this point had come. In Gadadhara Das v. Suryanarayana Patnaik 64 Ind. Cas. 317 : (1921) M.W.N. 413, Ayling, J., who has taken the opposite view to that which I am taking, puts it clearly thus: 'As regards-the definition of 'landholder,' it may be conceded at once that, so long as the Zemindar reserves to himself a quit-rent, the Inamdar, cannot be regarded as the owner of the lands in the ordinary legal meaning of the term.'
4. The question remains whether this Inamdar is a person entitled to collect the rent of this portion of the estate by virtue of any transfer from the owner. In my view, these words were introduced in order to bring in quite a different class of persons, such as, purchasers of part of an estate, mortgagees and what are called farmers, of the whole or portions of an estate, and, in my judgment, were not aimed at persons in the position of this grantee at all. I do not think it correct to say that this grantee is entitled to collect rent by virtue of any transfer. If there is any rent Collected from any one else, it is not by virtue of the transfer but by virtue of some lease or other disposition of the property made by the Inamdar himself. It follows, in my judgment, that the answer to the question referred to the Full Bench read, as I have stated above it should be read, is in the negative.
5. The question referred is difficult and the considerations arising are evenly balanced. I regret, therefore, that I cannot follow my Lord in adopting the presumption against a construction of the Statute, which would oust the jurisdiction of the Civil Courts, as in any material degree a basis for the decision, for the matter in issue is not only plaintiff's right to sue in one Court or another, although it is true that it is before us in that form. But our conclusion will determine further whether Section 6, Estates Land Act, regulates his relation with defendant, his tenant; and, if we hold that plaintiff is a landholder, defendant will be able to plead that he has a permanent right of occupancy in the land.
6. The question referred is set out in the judgment just delivered; and, with all respect, I am unable to deal with it in any form other than that in which it is stated in the Order of Reference. For we are empowered by Appellate Side Rule 3 to express our opinion only on the question referred, the one alternative authorized being, what has not been suggested to us, a final decision of the case with or without rejection of the finding on which the referring Judges were agreed and which they were competent to reach. In fact, I feel no difficulty in connection with the wording of the Reference, since the use in it of the expression 'both Varams' 'is unambiguous in its context. For, whatever meaning may in other connections be assignable to the terms 'Varam,' 'Melvaram' and 'Kudivaram,' the meaning attached to 'both Varams' by the referring Judges is clear. It is that expressed by one of them in one of the decisions with which we are concerned:
When we say that the grant was of both varams, we merely mean that the rights of the grantee were not limited by the necessity of respecting the rights of any person possessed of the kudivaram at the time of the grant.
7. Gadadhara Das v. Suryanarayana Patnaik 64 Ind. Cas. 317 : (1921) M.W.N. 413 . Shortly a grant of both varams is a grant of the fullest right, which can b? conceived as vested in the grantor.
8. The grant of both varams, which is the subject of the reference, is, however, further qualified by its description as a grant by way of Inam. The normal incidents of the Inam tenure have, as far as we have been shown, never been the subject of any exhaustive judicial definition and in the conflict of authorities, with reference to which this case comes before us, attention is directed almost exclusively to one of those-Incidents, the liability of the Inamdar to the grantor for quit-rent. That liabililty was relied on in argument here and by Wallis, C.J., and Kumaraswami Sastri, J. in Gadadhara Das v. Suryanarayana Patnaik 64 Ind. Cas. 317 : (1921) M.W.N. 413 and Spencer and Odgers, JJ., in Yeditha Bhupatiraju v. Bhavaraju Venkataratnam 70 Ind. Cas. 452: (1921) M.W.N. 821 and it is material not only with reference to the question of ownership, but also because there can be only one occupancy right and, therefore, only one landholder and one ryot in respect of the same land, within the definition of the latter terms in Section 3(5) and (15); and, if the quit-rent payable by the Inamdar to the grantor is rent, they, not (as defendant contends) the Inamdar and his tenant, will be the landholder and ryot.
9. Of the cases cited in the judgments above referred to Vencataswara Yettiapah Naicker v. Alagoo Mootoo 8 M.I.A. 327 ; Raja of Vizianagaram v. Collector of Vizagapatam 25 Ind. Cas. 780 and Kshetrabaro Bissoyi v. Hari Krishna Naidu 5 Ind. Cas. 125 none seems to me, with all respect, relevant to the question of ownership; since the first and second do not deal with a grantee's rights generally, but only with his right to separate registration under a special Act in order to establishment of his separate responsibility for his share of the peishkush, the Judicial Committee in the first statedly restricting the effect of the language it used; and the third decided with reference to Madras Act III of 1895 only that the permanent lease of a service Inam was not a transfer of ownership, and not anything as to the character of the Inam itself. And they are of no greater assistance with reference to the character of an Inam quit-rent. For the grant in the first is described as a perpetual lease; in the third discussion of the incidents of the Inam lease was unnecessary; and in the second, although an Iuam with a quit-rent was in question and they are referred to as a perpetual lease and a favourable rent in the judgment, the distinction, with which we are now concerned, would not have affected the conclusion.
10. That distinction has been recognised by authority and can be traced in the history of the law. In Suryanarayana v. Appa Rati 5 Ind. Dec. 736 relied on by Spencer, J., in the judgment above cited, it was no doubt held generally that an Inamdar was the tenant of his grantor for the purpose of Act VIII of 1865, the law then in force. But in Lakshminarayana Pantulu v. Venkatrayanam 8 M.L.J. 43 the decision was that Inamdars, who are not cultivating tenants, are not subject to the ordinary obligation of tenants, to exchange pattah and muchilka. These decisions were, however, superseded on the passing of the present Estates Land Act, in which by Section 3(11)(c), rent was defined as including for the purpose of various sections and without distinction between different descriptions of Inamdar 'quit-rent, Jodi, Poruppu and the like, payable by an Inamdar as such to the landholder;' and the fact that it was then thought necessary to include quit-rent in the definition by specific reference indicates an intention that it should not be regarded as rent in the ordinary sense or with reference to Section 3(5) and (15) or Section 6, but in order only to make the remedies available against the Inamdar, which the specified S2ctions provide. Lastly, by the amending Act of 1909, which was given retrospective effect, Section 3(11)(c) was expunged; and the proper construction of the change is, in my opinion, not that the context of the substantive definition of rent was, without alteration in its terms, enlarged, but only that the right to the remedies, conceded by the law in its original form, was withdrawn. Consistently with this view, Spencer and Krishnan, JJ., held in Singaraju Venkatasubbramaniam v. Rajah of Venkatagiri 56 Ind. Cas. 552 with reference to the application of Section 61, that quit-rent is not rent, as defined in Section 3(11) in its present form. Quit-rent and rent alike can be expressed only in money; and the former is not necessarily merely the latter reduced. The right of the grantor to it may not be identifiable with any known to modern English tenancy law and the use of the term 'Quit-rent' in this connection may be obsolete in England; but an analogy with it may be found in the quit-rent, payable on an English estate in fee simple on the commutation of an original liability for service. (William's Law of Real Property, 22nd Edition, pages, 55, 58). The law standing thus, the liability of the, Inamdar for quit-rent need not be regarded as inconsistent with his character as a landholder under the Act.
11. There are ordinarily, however, it was not disputed at the hearing, other incidents of the tenure, which are equally important, the inability of the grantee to alienate inconsistently with the terms of the grant and the, right of the grantor to re-enter consistently with them; that is, in the case of a personal Inam such as we are concerned with at present, on failure of heirs to tie grantee or in the case of a service Inam in default in the performance of service. On the question whether in the case before us there is such a right of re-entry the referring Judges are silent. But, if the reference does relate to Inam subject to these incidents, there may be some reason in a country in which estates subject to reversionary right, such as a Hindu widow's, are common, for regarding the ownership contemplated in Section 3(5) as. comprehensive and as unaffected by the rights of re-entry or reversion above referred to. It is, however, unnecessary to pursue these considerations, because I have come to the conclusion that an Inamdar with both varams of a part of a village is in any case a landholder under Section 3(5), because he is a person entitled at least to 'collect the rent by virtue of a transfer from the owner or his predecessor-in-title.'
12. That such an Inam grant confers rights in the property granted short only of ownership, including the right to enjoy it in every ordinary way, either directly or through other persons admitted as tenants was not disputed before us and has not been doubted in any previous decision. Such a grant would, therefore, ordinarily carry with it the right to collect rent from tenants after their admission; and I accordingly deal next with the special considerations on which plaintiff's argument has mainly turned and which arise from the facts that his grant is of both varams and of a part only of the estate. Those considerations are, as I understand them, that the legislature has by Section 3(2)(d) refused to apply the Act to villages outside the large estates specified in Section 3(2)(a), (b), (c), where the grant consists in both varams, in pursuance of a principle which must be followed in, the construction of other provisions including Section 3(5) and (11) and cannot be abandoned on the ground that a part only of a village is in question. With all respect, the answer to this is, firstly, that the recognition of any such principle by the legislature cannot be inferred from the materials available, when it could easily have been expressed and when in fact, as Wallis, C.J. admitted in Gadadhara Das v. Suryanarayana Patnaik 5 Ind. Dec. 736 the treatment of a large class of cases in Section 3(2)(e) is irreconcilable with it. Mere conjecture (and nothing mere definite has been offered us regarding the nature of the Inams contemplated by the draftsman in Section 3(2)(d) and the reasons for his apparent failure to place minor and major Inams of the same description on the same footing) can serve no useful purpose. The language with which we are directly concerned, that of Section 3(2), is unambiguous and nothing in it gives affirmative support to the construction, by which it is proposed to correct it. Such support is, however, it is urged, to be found in Section 3 (5), because the Words 'by virtue of any transfer from the owner' restrict its application to transferees under mortgages with possession or other documents, which confer directly the right to collect rents and exclude grantees of bath varams. But such a construction has not been justified by reference to use of similar words in a similar sense in other Statutes; and it is not, in my opinion, possible to hold that the very general language employed was intended to impose a restriction which could have been, but was not, expressed, or is in any degree inapplicable to grantees, whose grants are transfers from the owner, entitling them to enjoy the land, firstly by admitting and subsequently by collecting rent from those who are to carry on the cultivation. Spencer, J. in Yeditha Bhupatiraju v. Bhavaraju Venkaiaratnam 70 Ind. Cas. 452 was pressed by the anomaly involved in regarding the transferee as collecting V rents from himself, although Ay ling, J. in Gadadhara Das v. Suryanarayana Patnaik 5 Ind. Dec. 736 opined that it would be pedantry to speak of his doing so. If I may expand the meaning of the latter, it is that no necessity to speak of his doing so can arise, because there can be no question of the application of the Act at the time when the kudivaram is granted or until tenants have actually been admitted. Taking tins view, I hold, in accordance with the current of authority referred to by Sadasiva Aiyar, J., in his judgment in Gadadhara Das v. Suryanarayana Patnaik 5 Ind. Dec. 736 that the latter portion of Section 3(5) is applicable to grantees, such as plaintiff, because they are entitled to collect the rents of a portion of an estate, as defined in Section 3(2)(a).
13. It remains to refer to two ether provisions of the Act, the explanations to Section 6 and the exception to Section 8, relied on by Kumaraswami Sastri, J. in Gadadhara Das v. Suryanarayana Patnaik 5 Ind. Dec. 736 as preventing an Inamdar, who has acquired an interest in the kudivaram, from losing his right therein by the grant of permanent, tenancy to his sub-tenants, the learned Judge adding that 'it was never the intention of the legislature that persons who acquired rights of permanent occupancy or who acquired them by virtue of the Inam grant, should lose the benefit, simply because they get an interest in the melvaram as well.' These sections and the explanations of them are undoubtedly difficult of construction; and it is a question whether the explanations to the former and the first Clause of the latter can be reconciled Vide Muthu Reddi v. Muthu Venkataprthi Reddi 31 M.L.J. 354 . But with all deference, the exception to Section 8 is not now, and was not in the case, before the learned Judge in question, because Section 3(2)(4) was not and is not applicable, and the only other provision dealing with the simultaneous acquisition of the rights of the landholder and occupancy ryot is Section 8(1), under which the person acquiring these rights is to hold as a landholder. On the other hand, if it is permissible to refer to the policy of the Act as collected from these sections, the result of such reference is clearly against plaintiff. For under Section 8(3) the merger of the occupancy right under Sub-section (1), Sub-section (2) not being at present in question, is not to have the effect of converting ryoti land into 'home farm land;' and it is evident that the refusal to recognise a grantee of both varams as a landholder would enable the Zemindar, the original owner of the estate, to convert all available vacant land into land to which the provisions of Section 6 would be inapplicable and which would be indistinguishable from 'home farm land' by transferring both varams to persons under his control. It is no doubt no conclusive reason for refusing to give a particular interpretation to a Statute that such interpretation would facilitate evasion of its provisions. But it is at least reason for hesitation before that interpretation is adopted. For these reasons, I would answer the reference in the affirmative, holding that the grantee is at least entitled to collect the rent of a portion of an estate within the meaning of the latter part of Section 3(5)
14. The question that has been referred to us is as follows: 'Where a Zemindar makes a post settlement Inam grant of a portion of a village with both varams on a permanent kattubadi, is the grantee a land-holder within the meaning of Section 3, Clause 5, of the Madras Estates Land Act?' Before referring this question, the two learned Judges who referred it considered the language of the grant and decided that it was not a permanent lease on a favourable rent and that it was a grant in Inam with both varams of the land. In fact Odgers, J., says: 'For some reasons, I wish it had been possible for me to hold that Exhibit A amounted only to the grant of a lease at a favourable rent, but I think the terms of the grant must be construed against this view.' It is, in my opinion, somewhat questionable whether it is open to this Bench to disregard this finding of the referring Judges as they had already determined the point themselves. Assuming, however, that it is open to us to do so, I must agree with them that the grant is not a permanent lease. The grant admittedly is of royti land within the zemindari of Pittapur which is an estate within the meaning of Section 3, Clause 2(a), of the Madras Estates Land Act. A quit-rent was imposed upon the grantee and it is contended that this is in fact a rent reserved to the owner and that the grant is merely a permanent lease on favourable terms. I think it is clear that quit-rent is not rent within the meaning of the Estates Land Act. Under the Act as originally passed 'rent' included jodi, kattubadi, Poruppu and the like payable by the Inamdar as such to the landholder and these terms are equivalent to the English word 'quit-rent.' This provision was omitted by virtue of the Amending Act of 1909 and now rent 'does not in terms include payments, such as these. This amendment of the Act seems to me to exclude such payments from the definition of rent. Even in English law, it is recognised that an estate in fee simple may be liable to pay quit-rent (vide Williams on Real Property, page 55) and in this country, I think, it must be recognised that grants in Inam are not really in the nature of leaseholds. There are various kinds, sometimes granted free of any payment such as sarvamanyam, sometimes on payment of half assessment such as ardhamanyam and sometimes an arbitrary sum is fixed for payment or it may be that services are to be rendered. 'Inam' in itself means a gift. Inam tenure appears to me to be in the nature of a 'grant' varying in its terms. We see that under the EnfranchisedMnams Act of 1862 the Government surrendered its reversionary rights to the Inamdars in consideration of an equivalent annual quit-rent, and I do not think that an enfranchised Inam can be deemed to be a mere leasehold estate. The question as to the nature of the estate held by the Inamdar I will consider in dealing with the definition of 'landholder.' It is net contended that the holding with which we have to deal is one within the meaning of Section 3(2) of the Estates Land Act but the contention for the respondent is that it forms part of an estate within the meaning of Clause 5 of that section. I do not think much purpose will be served in interpreting its language by any reference to the intention of the Legislative, for that is net by any means clear from the Act itself and we see that in many instances it is very difficult to reconcile the language of one section with another, for instance, Section 6 (explanation) and Section 8(1). It is suggested that the definition of 'estate' is more important than the definition of 'landholder.' When the Legislature framed its definition of 'estate' it meant to include all the lands with which the Act was meant to deal. According to the preamble, the Act is one to amend and declare the law relating to the holding of land in estates in the Presidency of Madras. It cannot be disputed that #it deals' with holdings of lands situated within an estate and not merely with holdings of complete estate. The person mainly 'dealt with under the Act is what is called a ryot and he is a person who holds, for the purpose of agriculture, ryoti land in an estate. I do not, therefore, think that we must attach more importance to the definition of 'estate' than to the definition of 'landholder' with whom and with whose relations to his tenants the Act is mainly concerned. When we come to the definition of 'landholder,' we find that it means a person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor-in-title. The appellant Inamdar in this case is certainly not a person owning an estate within the definition of Section 3, Clause 2, and it is argued that he is net the owner of part thereof. The lands which were granted to the Inamdar in this case were, admittedly ryoti lands in a permanently settled estate and undoubtedly form geographically a part of the estate. The question turns, therefore, upon the meaning of the word 'owning.' In construing this section Wallis, C.J. in Gadadhara Das v. Swyanarayana Patnaik 5 Ind. Dec. 736 was of opinion that, when and so long as a full owner in making a grant reserves an interest to himself, as by way of rent, he and his successors continue to be owners, no matter how insignificant may be the interest he reserves to himself. He relies on a case reported in Raja of Vizianagaram v. Collector of Vizagapatam 25 Ind. Cas. 780 to which he himself was a party. That case was concerned with a deed granting a mokhasa patta and it was held that the grant did not amount to transfer of ownership sons to enable the grantee to have his lands separately registered under Act I of 1876. In that case reliance was placed on the decision of the Privy Council reported in Vencataswara Yettiapah Naicker v. Alagoo Mootoo 8 M.I.A. 327 but the Privy Council were dealing with a case of permanent lease1, and also the question of registry. The question really, in my opinion, is whether the word 'owning' under Clause 5, must necessarily mean owner of every conceivable right in the estate, or whether the present Inamdar to whom a grant of the land was made subject to a payment of quit-rent to the Zemindar can be deemed to be owner. In two cases recently decided by the Privy Council in Suryanarayana v. Patanna 48 Ind. Cas. 689 : 29 C.L.J. 153 and Upadrashta Venkatasastrulu v. Divi Seetharamudu 51 Ind. Cas. 304 : 30 C.L.J. 441 it was held that a grant in Inam, in the absence of any restrictions, must be deemed to be grant of the land itself subject to the existing rights of occupancy. In the latter case their Lordships considered the question whether the grant was a grant of the land revenue alone to a person not having permanent right of occupancy, or whether it vested in the grantee the whole proprietary interest in the property, and they came to the conclusion that the Inam grant carried with it not the land revenue alone but the whole proprietary interest in the property. These two cases were, no doubt, cases where the grant was made free of any payment; but I do not think that reservation of payment to the grantor can alter the nature of what is granted. In the present case the land is assigned to the grantee who is to bring the land to profit as he pleases, and peacefully and hereditarily enjoy the same, the only reservation being that a 'cist', as it is called, of Rs. 58 is fixed thereon. There is no doubt in this case that it was not a grant merely of the melvaram for, admittedly, it was a grant also of the kunivaram or tenant's interest in the land, and I am prepared to hold that it was a grant of the Zemindar's proprietary interest. It may also be argued that the Zemindar himself is not the absolute, owner; for we see under Regulations XXV and XXXI of 1802, that the right of the ruling power to the estate was set out and by Regulation XXV of 1802, permanent grants were made to Zemindars, but the Government reserved an annual payment to itself which in such cases is termed peishkush. The Government did reserve something to itself and if we apply the argument that any interest reserved by the owner prevents the grantee from obtaining ownership, it fellows that the Zemindar himself has not full right of ownership. In construing the word 'owning', therefore, I do not thinly that we can say that it means the ultimate owner who has reserved even the smallest right for himself. What, I take it, must be reserved is not a mere payment but some actual interest in the land itself. In the present case, quit-rent cannot be recovered by the Zemindar under the summary provisions of Act I of 1908 and although it may be called a charge upon the land, it does net, in my opinion, amount to an interest in the land. I may also refer to a case reported in Virabhadrayya v. Sonti Venkanna 20 Ind. Cas. 769 where it was held that the ownership vested in the agraharamdar and that only the right to payment of annual jodi was reserved to the Zemindar. If I am right in this contention, it is unnecessary to decide the further question as to whether the appellant comes within the meaning of the second part of the definition of 'landholder,' namely, a person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner. It is not suggested that in this case there has been any actual transfer of the right to collect rent, and that is not what the section says. It depends on whether, by virtue of any transfer from the owner, the transferee is entitled to collect the whole or any portion of the rent of the estate. No doubt the definition of rent is, 'whatever is lawfully payable in money or in kind or in both to a landholder for the use or occupation of land in his estate for the purpose of agriculture.' Importance has been attached to the use of the word 'his' before 'estate', but it appears to me that this is rather straining the meaning of the section. It is not denied that a mortgagee in possession would be a person entitled to collect the rents and would be a 'landholder' within the meaning of the Act. It cannot be said that he has a right to collect the rents of his own estate. The right to collect rent is a right to collect rent which but for the transfer would be payable to the landholder in his (namely, landholder's) estate. We see that rent is whatever is lawfully payable for the use or occupation of land. Before this present grant was made, the landholder was collecting the rents on this land which is ryoti land. Under Section 4 of the Act,, a landholder is entitled to collect rent in respect of all ryoti land in the occupation of a ryoi. Under Section 27, if a question arises as to the amount of rent payable by a ryot, he shall be presumed, until the contrary is shown, to hold at the same rate and under the same conditions as in the last, preceding revenue year. Under Section 28 in all proceedings under this Act, the rent or rate of rent for the time being lawfully payable by a ryot shall be presumed to be fair and equitable. The Act, therefore, contemplates the existence of lawful rent payable on all ryoti lands--and this implies the right of the landholder to collect such rent. If, however, he transfers the land this transfer carries with it the right to collect rent from any tenants then on the land or who may subsequently be admitted, therefore by virtue of the transfer the grantee obtains the right to collect the rent on a part of his (that is the landholder's) estate. In the present case the grantee being entitled to both varams, he is entitled to admit tenants to possession and to collect from them rent, which rent would previously have been payable to the grantor. I would, therefore, hold that the appellant does come within the definition of 'landholder' under the Act.
15. If I am wrong in my interpretation of the word 'owning' in this clause, it would follow that the holder of the estate defined in Clause 2(e) would not be a landholder within the meaning of the Act. This is recognised by Wallis, C.J., in his judgment, and he gets over the difficulty by saying that such estate holder must be recognised to be a landholder for purposes of the Act, not because he comes within the definition as owning an estate but because it would be repugnant to the subject or context to apply the strict definition of land-holder to such cases. The difficulty is obviated by my interpretation of 'owning'. Prior to the passing of Act 1 of 190S, Act VIII of 1865 was applicable to estates. Under that Act minor Inamdars were definitely declared to be landholders. Until 1908, therefore, the appellant in this case would have been deemed to be a rand holder, and in the new? Act he is not specifically excluded. If he is not a landholder he must be a ryot for, admittedly, he was granted permanent right of occupancy. The definition of a 'ryot' is a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it. It has been held consistently that an Inamdar is not a tenant for many purposes. I Vide Lakshminarayana Pantulu v. Venkatrayanam 7 Ind. Dec. 439; Lakshminarasimham Pantulu v. Sree Sree Ramachandra Mardaraja Deo 18 Ind. Cas. 308 and Raja of Venkatagiri v. Thatikola Subbiah 70 Ind. Cas. 564. There are also very many provisions in this Act which cannot be applied to the appellant if he is a ryot. For instance, under Section 20(3), the rent now payable by him could be enhanced by the successor of his grantor and the Zemindar can apply the provisions of the Act for compelling the payment of the quit-rent; but it is not seriously argued that these provisions are applicable in the case of appellant. Therefore the only other alternative is that the appellant and his holding are not at all governed by the Act, and that the land granted to the appellant is withdrawn from the provisions of the Estates Laud Act. It is admitted that the land was ryoti land when the grant was made, and I think it would be necessary for the appellant to show very clearly that, that land had altered its character by being given by the landholder to the present grantee. The policy of the Act is apparently to treat land which has once been 'ryoti' as always 'ryoti'. The estate holder has no right to convert it into his own private land, for there are many incidents attaching to the occupation of 'ryoti' land which do not apply to the occupation of other lands, the landholder being very much restricted in his dealings with the former. I should, therefore, need very strong evidence that the land holder can alter the nature of the ryoti land within his estate by making a grant of it to a dependent or other person on favourable terms I do not think that it is necessary, in the view I held to discuss this question at greater length, and I only deal with the point because it is not irrelevant to consider whether there is any other position other than that of the landholder, which appellant can hold to obtain a result by a process of exclusion.
16. I would, therefore, answer the question in the affirmative, and I do so the more readily because it is in accordance with the earliest decisions of this Court, and I think that, in cases of amoigulty like this, the principle of 'star decisis' is or importance and that any change should be left to the Legislature if it so thinks fit.
17. The question referred to the Full Bench is, 'where a Zemindar makes a post settlement Inam grant of a portion of a village with both Varams on a permanent kattubadi, is the grantee a landholder within the meaning of Section 3(3) of the Madras Estates Land Act?' The appeal in which this question arose is against the decree of the Temporary Subordinate Judge of Cocanada, who reversed the decree of the District Munsif of Peddapuram, holding that the post settlement minor Inamdar popularly known as Darmila Inamdar was a landholder, and, that the Civil Court had no jurisdiction to entertain a suit instituted by him to recover possession of the laud with mesne profits from a tenant holding over after the expiry of the lease. In order to decide this question--Is a past settlement minor Inamdar a landholder or not?--the object and scope of the Estates Land Act has to be considered.
18. The Act was the outcome of agitation against the ruinous litigation that went on for years on account of the unsettled nature of the tenures in Zemindaries in this presidency. The Zemindar in almost all cases tried to make out that the tenants were merely tenants-at-will, while the latter contended that they were permanent tenants not liable to be evicted at the will of the Zemindar. In order to remedy the evil, some changes were deemed necessary, and the most important of them was the introduction of the principle that the tenants occupying what is known as ryoti land in proprietary estates on the date of the parsing of the Act, acquired by virtue of Section 6 of the Act occupancy rights in the holding. It can be gathered from the general scope of the Act that it was the intention of the Legislature to give permanency of tenure to tenants. Under the old Act, VIII of 1S65, the definition of the term 'landholder' included Inamdars 'The question whether minor Inamdars come within the purview of the present Act-is not free from difficulty. It is agreed on all hands that a minor Inamdar is not an estate holder within the meaning of Section 3(2) of the Act. The difference of opinion is only as regards his being a landholder or not within the meaning of Section 3(5). My answer is lie is not. without taking into consideration the policy of the Act or the circumstances which led to the passing of the Act, it is abundantly clear, from the definition of the word 'estate' 'in Section 3(2) that the Legislature intended to exclude minor Inams from the operation of the Act. The word 'estate' is elaborately and clearly defined in Section 3(2) as follows:
(a) any permanently settled estate OJ temporarily settled Zemindari;
(b) any portion of such permanently settled estate or temporarily settled Zemindari winch is separately registered in the office of the Collector;
(c) any,unsettled.p3laiyam or jagir;
(d) any village of which the land-revenue alone has been granted in Inam to 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;
(e) any portion consisting of one or more villages of any of the estates specified above in clauses (a), (b) and (c) which is held on a permanent under-tenure.
19. Clause (d) makes it quite clear that; in order to bring the Inams within the operation of the Act the following conditions are necessary: (1) it must be a village, a whole village or a separated part of such village (2) land revenue alone should have been granted as Inam; (3) that the grantee was not the owner of the kudivaram at the time of the grant; (4) the grant is recognised or confirmed by the Government. The minor Inam does not fulfil any of these conditions.
20. It is argued that the Legislature in enacting Clause 5 overlooked the definition of estate in Clause 2. Is it likely that the Legislature which took care to exclude minor inams from Clause 2 (d) of Section 3 would have framed the definition of 'landholder' in such a way as to include within its ambit minor Inams? It is contended that the legislature is capable of such lapses, but such an argument cannot hold good with regard to the Estates Land Act. It is a well-known principle of interpretation of Statutes that the sections of an enactment should be construed, as far as possible, so as not to make the provisions of the enactment inconsistent with one another. That construction should be adopted which would make the enactment a reasonable and workable one. The term landholder' is defined thus: 'Landholder means a person owning an estate or part thereof and includes every person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor-in-title or of any order of a competent Court or of any provision of law.' That is, the land-holder is one owning (1) an estate (2) or part of an estate (3) or entitled to collect the rents of the whole or any portion of the estate. There cannot be a part of an estate unless the whole is an estate. It is urged that a minor Inam situated with in the ambit of a Zemindar is part of an estate. The fallacy of the argument lie. in this. It is not the physical situation that is contemplated by the section. It that was so it may, with equal reason, be contended that every ryot's holding is part of an estate for it is situated within the Zemindari. The word 'estate' does not mean land but all the rights, liabilities and duties attaching to or incidental to certain classes of tenure as defined by Section 3(2). The words 'part of an estate' have been put into the definition of landholder so as to include the transferee of a portion of the, estate either by operation of law or by act of parties. An Inamdar is not a transferee of the whole or any portion of the estate. A minor Inamdar pays some amount to the Zemindar which amount is variously termed jodi, kattubadi, poruppu, quit-rent etc. The transfer from the owner contemplated by the clause is not a transfer of a fraction of the rent of each holding, but of the whole rent of an estate or a portion of the estate. A minor Inamdar therefore does not come within the last part of Clause 5.
21. In this connection, it is necessary to consider some other provisions of the Act in order to see that the term landholder was not intended to include minor Inamdar. Section 6 introduces a radical change in favour of the tenant. Under Madras Act VIII of 1865, the tenant was not given any occupancy right which he did not previously possess. In almost every case before the Courts the tenants contended that they had occupancy rights and the Zemindar or estate holder that they were only tenants-at-will. By Section 6 all persons in occupation of ryoti land on the date of the passing of the Act or who were let into occupation by the landholder after the passing of the Act became occupancy tenants. The minor Inamdar in most cases is possessed only of a few acres of land and it could not have been the intention of the Legislature to deprive him of the tenant's rights the moment he let in somebody to cultivate the land. Most of the minor Inams are to Brahmins or to people of other classes who are not tillers of the soil and the construction of the Act so as to include them within the operation of Section 6 would not only work a great hardship but would be repugnant to several other provisions of the Act. When land was granted as, Inam the obvious in tention of the grantor was to enable the grantee to enjoy the produce of the hid. The contention that the Zemindar by grafting an Inam on a favourable tenure makes the grantee a landholder is repugnant to the idea of the grant of the land to the Inamdar. By explanation to Section 6, a person owning kudivaram right does not, lose it by subsequently holding the land as landholder. If a Zemindar grants as inam kudivaram right to a person and subsequently by another document grants a melvaram right or a portion of it, the Inamdar does not lose his kudivaram right. If the grant is made by the same document, it is said that the Inamdar does not Require thereby the kudivaram right. Such a construction is repugnant to the terms of the grant and is unreasonable. The exception to Section 8 gives a clue to the interpretation of clauses 2 and 5 of Section 3 of the Act. In the case of an Inamdar coming under Clause 2(d) of Section 3, the acquisition by him of the kudivaram right in any land either before or after the passing of the Act makes such land cease to be a part of the estate. If the Inamdar is the grantee of both the varams he is not an estate holder. If he is the grantee of the melvaram alone, and he subsequently acquires kudivaram right also the land, in respect of which he has both the varams, ceases to be part of the estate. If that be the intention of the Legislature as is apparent from the Sections, is it reasonable to contend that the Legislature framed the definition of landholder so as to include a minor Inam within its purview? No doubt, we have to see what the words of Clause 5 of Section 3 import, but in interpreting that clause we have to give it such meaning as is consistent with what follows and what precedes it. If two constructions are pessible, that construction should be adopted which would not conflict with the meaning of what precedes and what fellows, This is also consistent with general scheme of the enactment. In Colquhoun v. Brocks (1889) 14 A.C. 493 . Lord Herschell says: 'it is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a Statute to consider any other parts of the Act which throw that upon the intention of the Legislature and which may serve to show that the particular provision ought not to he construed as it would be if considered alone and apart from the rest of the Act.' In the course of the answer to a question submitted to the Judges of the King's Bench Court by the House of Lords, Best, C.J., observes: 'The intent of the Legislature is not to be collected from any particular expression, but from a general view of the whole of an Act of Parliament' Anon. (1825) 3 Bing. 193 . How Statutes should be construed is put succinctly by Lord Haldane in Inland Revenue Commissioners v. Herbert (1913) A.C. 326 : 'My Lords, in approaching the controversy as to the meaning of these sections I think it worth while to recall a principle which must always he borne in mind in construing Acts of Parliament, and particularly legislation of a novel kind. The duty of a Court of law is dimply to take the Statute it has to construe as it stands, and to construe its words according to their natural significance. While reference may be made to the state of the law, and the material facts and events with which it is apparent that Parliament was dealing, it is not admissible to speculate on the probable opinions and motives of those who framed the legislation, excepting in so far as these appear from the language of the Statute. That language must indeed be read as a whole. If the clearly expressed scheme of the Act requires of particular expressions may have to be read in a sense which would not be the natural one if they could he taken by themselves. But subject to this, the words used must be given their natural meaning, unless to do so would lead to a result which is so absurd that it cannot be supposed, in the absence of expressions which are wholly unambiguous, to have been contemplated.' Blackburn, J., (afterwards Lord Blackburn) observes in Rein v. Lane (18): 'It is, I apprehend, in accordance with the general rule of construction in every case, that you are not only to look at the words, but you are to look at the context, the collocation, and the object of such words relating to such a matter, and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under such circumstances.' The principle that ought to guide the Court in construing Statutes is clearly laid down by Coleridge, J., in In the matter of the Parish of St. Pancras (1837) 6 Ad. & E. 1 : 'It is, in my opinion, so important for the Court, in construing modern Statutes, to act upon the principle of giving full effect to their language, and of declining to mould that language, in order to meet either an alleged convenience, or an alleged equity, upon doubtful evidence of intention, that nothing will induce me to withdraw a case from the operation of a section which is within its words but clear and unambiguous evidence that so to do is to fulfil the general intent of the Statute; and also that to adhere to the literal interpretation is to decide inconsistently with other and overruling provisions of the same Statute. When the evidence amounts to this, the Court may properly act upon it; for, the object of all rules of construction being to ascertain the meaning of the language used, and it being unreasonable to impute to the Legislature inconsistent intents upon the same general subject-matter, what it has clearly said in one part must be the best evidence of what it has intended to say in the other: and, if the clear language be in accordance with the plain policy and purview of the whole Statute, there is the strongest reason for believing that the interpretation of a particular part inconsistently with that is a wrong interpretation. The Court must apply in such a case the same rules which it would use in construing the limitations of a deed: it must look to the whole context, and endeavour to give effect to all the provisions, enlarging or restraining, if need be, for chat purpose, the literal interpretation of any particular part.' Again, Lord Selborne lays down the rule thus: 'The more literal construction ought not to prevail, if it is opposed to the intentions 01 the Legislature, as apparent by the Statute; and if the words are sufficiently flexible to admit of some other construction by which that intention will be better effectuated.' Caledonian Rail way v. North British Railway. (1881) 6 App. Cas. 114 . In discussing the effect of Section 23 of the Bankruptcy Act of 1869, Earl Cairns says: 'It is said that the 23rd Section of the Act of 1869 produces this result, and I admit freely that the section seems to me capable of that construction. No doubt, if you read it literally it does seem to provide that, 'When any property of the bankrupt acquired by the trustee under this Act consists of land of any tenure burdened with onerous covenants, the trustee may, by writing under his hand, disclaim such property, and upon the execution of such disclaimer the property disclaimed shall, if the same is a lease, be deemed to have been surrendered on the same date'--'the date of the order of adjudication.' It says, 'shall be deemed to have been surrendered,' it does not say 'shall be surrendered' but there shall be a statutory fiction gone through, the result of which is that the lease shall be deemed to have been surrendered on that date. It is possible that that may mean that, to all intents and purposes, as between all persons, persons actually concerned in the bankruptcy and those not so concerned, it shall be a surrendered lease and shall be altogether out of the ease. But, on the-other hand, is that the only interpretation? For that purpose your lordships, I think, must consider what the object of this provision is. Why is it that there is this statutory fiction introduced? The section obviously is not one which has been prepared with much care or skill, or which shows indeed that the persons who were preparing it had fully present to their, minds the various cases with which they had to deal. But is this necessarily the only construction of which the Act admits? I say that we must look to what the purpose is. Now, I take it that the purpose of this section, and indeed the purpose of the whole Statute, is, in the first place, to clear and discharge the bankrupt in cases where it is proper that he should be discharged from liability; in the next place, to facilitate as early as possible the distribution of the property which is to be divided among the creditors and the winding, up of the bankruptcy; and, in the third place, to protect the trustee frail any liability to which he might be subject aid to which he ought not to be subject beyond what is necessary for the purpose of accomplishing the two prior objects. If, therefore, the Statute can admit of any construction limited to these particular objects, we must consider whether that is not a construction preferable to the first to which I have referred. The first construction requires us, if the section is taken literally, to do that for which there is no motive, and as to which there can be no explanation given; that is to say, to destroy the rights and property of third persons, without accomplishing any beneficial object whatever for the purpose of the bankruptcy. *** Where there are two constructions, the one of which will do, as it seems to me, great and unnecessary injustice, and the other of which will avoid that injustice, and will keep exactly within the purpose for which the Statute was passed, it is the bounden duty of the Court to adopt the second and not to adopt the first of those constructions.' Hill v. East and West India Dock Co. (1884) 9 App. Cas. 448 .
22. I have stated the principles of construction of Statutes at some length in order to show what the duty of the Court is in, interpreting the provisions of an enactment, which are either not quite clear or which are opposed to other provisions as well as to the general scheme and policy of the Act, as gathered from the Act itself. A literal interpretation of the term landholder so as to include minor Inamdar is opposed to the clear intention of the legislature as can be gathered from the definition of the word 'estate' and the provisions of sections 6 and 8 of the Act. The only interpretation consistent with the provisions of the rest of the Act is the one adopted by Walls, C.J., in his judgment in Gadadhara Das v. Suryanarayana Patnaik 5 Ind. Dec. 736. It is unnecessary to examine in detail all the cases on the point. There is considerable authority for the position that a post settlement minor Inamdar is not covered by the Estates I, and Act and there is equally considerable authority against that position.
23. I purpose to deal only with the earliest and the latest of the authorities for the contention that such Inams are within the purview of the Act. In Applanarasimkulu v. Sanyasi 17 Ind. Cas. 120; Sundara Aiyar and Sadasiva Aiyar JJ. held 1hat a Darmila Inamdar was a rent holder within the meaning of Section 3(5) of the Estates Land Act, though the Inam may not be an estate under Section 3(2). It appears from the judgment that what was granted as Inam in that case was only a portion of the melvaram right end not the kudivaram as well. The learned Judges observe at page 35 Page of 38 M.--[Ed.]: 'The plaintiff is undoubtedly a person entitled to collect rents of a portion of the estate of Sangam Velasa as an under tenure-holder. If he is liable to pay kattubadi to the Zemindar, is such a person holding under him and entitled to collect the rents of a portion of the Zemindari as a lessee or a usufructuary mortgagee of the whole or of portion of the Zemindari? The definition of landholder clearly includes every person-entitled to collect rents of any portion of an estate by virtue of any transfer. The plaintiffs by reason of the transfer of the lands in question from tie Zemindar as an under-tenure are persons entitled to collect the rent of the land.' It is plain from the reasoning of the learned Judges if there was no rent to he collected at the time of the grant, in ether words, if there was no tenant on the and having an occupancy right, it may he presumed that they would not have held that the Inamdar was a landholder. Tie definition of rent in Clause 11 of Section 3 makes it apparent that there should be at least two persons, the person entitled to receive it and another hound to pay it. When the Inam is of and in which no one has an occupancy right, what is granted is the kudi right plus a portion of the melvaram right. It would he doing violence to the language to say that an Inamdar who gets vacant land occurs as a dual position, that of a kudi varamdar and melvaran dar. Can it is said to at the kudivaram light could never he is because the Inam includes a portion of the rent or melvaram? Who is the owner of the kudi light when the Inamdar cultivates the land himself? Can it be contended that the moment he asks any one to cultivate, it, because re could not do it himself 1he right which was, as it were, dangling in the air pounces upon the cultivator and clothes him with the rights of an occupancy tenant by virtue of Section 6? When a minor Inam is of land I am strongly of opinion that the grantor does confer upon the grantee the kudivaram right and foregoes a portion of his melvaram right. The grantee owning the kudivaram right, can never lose it by his acquiring a portion of the melvaram right. The view taken by the learned Judges has been followed in several cases. This view is dissented from in severally cases which it is unnecessary for my purpose to examine at length. It is sufficient to deal with the Full Bench case of Gadadhara Das v. Surayanarayana Patnaik 64 Ind. Cas. 317, where the majority of the Full Bench held that where a darmila Inamdar is a grantee1 of both vararrs he is a landholder within the meaning of Section 3(5). Ayling, J., says at page C87: 'We must assume that at the time of 1he Inam grant, the lands were either lying waste or were cultivated by a mere tenant-at-will--in any case there was no one in possession whose occupation could not he terminated at the pleasure of the Zemindar or his grantee. What was the effect of the grant? It seems to me it was to place the Inamdar in the same position as his grantor, subject only to the liability to pay quit rent which prevented him from being viewed as an owner of an 'estate.'** In fact, when we say that the giant was of both varans, we merely mean that the rights of tie grantee in respect of the land were rot limited by the necessity of respecting the rights of any person, possessed of the kudivaram at the time of the grant.' With the greatest possible respect I am unable to agree with this view. When a grant is: made of both varams, the grantee becomes possessed of both and he cannot be divested of what, vests in him by his letting some one into possession of the land. The land does not lose the character of the ryoti land but the Inamdar is a ryot, himself with the right to pay not the full melvaram but; something in lieu of it according to the terms of the grant. The fallacy underlying; the argument is the assumption that by the grant of Inam the Zemindar transfers his right to the Inamdar in respect of the land granted. If you look at the grant as one of land itself, the assumption becomes groundless. The learned Judge was evidently pressed by the authority of the decisions referred to by him at page 686 which perhaps made him take the view he did. Would it be reasonable to say that the Legislature intended to keep out of the purview of the Act Inams consisting of one or more villages when both varams are granted, but not Inams of only a portion of a village though the grant is of both varams? After the decision of the Full Bench reported in Gadadhara Das v. Suryanarayana Patnaik 64 Ind. Cas. 317 , a Bench of this Court, consisting of Spencer and Odgers, JJ., held in Civil, Revision Petitions. Nos. 1090 and 1091 and 1018, Yeditha Bhupatiraju v. Bhavaraju Venkatarutnam 70 Ind. Cas. 452 that a minor Inamdar possessing kudivaram as well as melvaram right was not a landholder within the meaning of Section 3(5). As my view is the same as that of Wallis, C.J., and Kumaraswami Sastri, J. in Gadddhara Das v. Suryanarayana Patnaik 64 Ind. Cas. 317 at page 685 and that of Spejicer and Odgers, JJ., in Civil Revision Petitions Nos. 1090 and 1091 of 1918 Yeditha Bhupatiraju v. Bhavaraju Venkalaratnam 70 Ind. Cas. 452. I do not think it necessary to examine their arguments in detail.
23. It has been argued by Mr. Ramadoss that, if an Inam is a grant of melvaram at a favourable rate, it is liable to be determined under Section 26 on the death of the grantor. The Inams stand on a different footing from the tenancies created under Section 26. The Inam is a gift for charitable, religious or other good purpose, or for past services, and, therefore, the provisions of Section 26 do not apply to Inams. No doubt, an Inam grant might be challenged by the successor of the grantor in the law governing the grantor and the successor permits such a course. It is unnecessary to decide the question raised by Mr. Satyanarayana, whether a minor Inamdar is a ryot within the meaning of Section 3(15) and whether the jodi or kattubadi he pays is rent within Clause 11 of Section 3. On a full consideration of the cases, as well as the relevant provisions of the Act, I come to the conclusion that where a Zemindar makes a post settlement Inam grant of a portion of a village with both varams on a permanent kattubadi, the grantee is not a landholder within the meaning of Section 3(5) of the Madras Estate: Land Act.
24. I, therefore, answer the question referred to the Full Bench in the negative.
25. Before dealing with the question that has been rehired to us, I would at the outset notice a difficulty which has been suggested in the argument. Under the terms of the grant in question, a cist of Rs. 58 is payable to the Zemindar of Pittapur. If this cist is the equivalent of the landlord's share of the produce, it is said, that the grant was not of both the varams if it falls short of the full value, the grant was at the most of kudivaram and of only a part of the melvaram. In any event, it is argued the grant was not of both the varams. It is sufficient to say in answer to this argument that the terms of the reference preclude our entering info a discussion of it because the learned Judges who have referred the matter have framed 'the question in the following terms: 'Where a Zemindar makes a post settlement Inam grant of a portion of a village with both varams on a permanent kuttabadi, is the grantee a landholder within the meaning of Section 3(5) of the Madras Estates Laud Act?'
26. It has been argued on behalf of the appellant (the Inamdar) that in coining to a conclusion we should not favour a construction which would oust the jurisdiction of the ordinary Courts of the land. The question before us is, however, not merely one of the Civil Courts possessing or not possessing jurisdiction. But our decision would affect the rights of the Inamdar and, his tenants because, if we should hold that the Estates Land Act is applicable as between Inamdar and his tenants, the latter would have of occupancy rights, whereas if we should adopt the opposite view, the tenants would not possess such rights.
27. The appellant relies upon Section 3, Sub-section (2), and contends that the Inam in question does not fall within any of the clauses enumerated in the sub-section and, therefore, it is not an 'estate'. On this point there has been a consensus of judicial opinion. Section 3(2)(e) which relates to Inams in permanently settled or other estates deals with what are known as major Inams and the Inam with which we are concerned being, less than, a village, Section 3(2)(e) does not apply to it. The minor Inams, therefore, not coming within the purview of this definition, it is argued that the states Land Act is not applicable and that the tenants of the Inamdar do not have permanent occupancy lights. The difficulty, however, arises en account of the fact that the terms 'land-holder' is defined in Section 3(5) so as to bring in minor Inamdar within the operation of the Act. On the exact construction of the sub-section defining 'landholder' there has been no doubt a divergence of opinion and to it I shall presently refer. But, to my mind, the inconsistency that exists between the two sub-sections, Sub-section (2) defining the word estate' and Sub-section (5) defining the term 'landholder' is the source of difficulty and has been the reason for the conflict of views that have been expressed upon the subject, If it were possible to interpret the two sub-sections in such a manner as to lead to no inconsistency, 'that would be no doubt the proper course to follow. But it seems to me impossible to adopt a construction which will not lead to conflict. The question is not, therefore, what is the construction that is possible that will reconcile the provisions of the two sub-sections, but the question is, inconsistency being admitted, to which sub-section will the Courts attach greater importance in deciding this matter? In other words, is it to be assumed that the Legislature has by inadvertence omitted to include this description of land in what purports to be an exhaustive definition of 'estate', or are we to assume that in framing the definition of 'landholder' words have been employed to connote the very opposite of the plain meaning of the words used? On a careful consideration I am inclined to the view that it would be giving effect to the intention of the Legislature to hold that the definition of 'Land-holder' covers the case of Inamdars of the. description we are dealing with. It is said that the intention of the Legislature should be gathered from the whole Act and that a construction of a particular section inconsistent with the plain policy and purview of the whole Statute should be rejected. Put we have hot been referred to any sections which indicate clearly the intention of the Legislature not to treat minor Inamdars as landholders. This rule of contraction is in the present case, therefore, of little practical value.
28. There is no warrant for the position that the Legislature has intended to exclude from the operation of the Act the class of minor Inamdars on the ground that they hold, or are entitled to, both the varams.
29. Section 8 enacts the rule that, 'where the interest of the land holder and the occupancy right had become united in the same person, such person shall hold the land as a landholder and not as a ryot.' This points to the fact that an individual who is the owner of both the varams may be a landholder and the land which he holds may be ryoti land. In other words, this section provides that ryoti land shall not lose its character by the holder of it happening to own both the varams. By way of exception to this rule, it is provided that in the case of land coming within Section 3(2)(d) the merger of the two varams will deprive the land of its character of an estate.
30. Let me next turn to the explanation to Section 6 which provides that 'a person having a right of occupancy in land does not lose it by subsequently becoming interested in the land as landholder or by subsequently holding the land in ijara or farm.' Doer, not this imply that but for this provision the merger of both the varams in the same individual would have the effect of investing him with the character of 'landholder?' Explanation to Section 6 is, therefore, properly treated as a further exception to the general rule laid down in Section 8.
31. Section 3(2)(e), which is said to deal with major Inams in estates, contemplates the Inam being an estate notwithstanding the fact that melvaram alone has not been granted to the Inamdar. The contrast between 3(2)(d) and 3(2)(e) is indeed very marked because under, tie former clause the land dealt with by it becomes an estate whore only melvarom has been granted, whereas the latter clause does not contain any such limitation and under it the fact that the grantee enjoys both the varams does not any the less make the land an estate.
32. I have examined these provisions with a view to find out, if possible, if the Legislature has indicated its intention to refuse to attach the incidents of ryoti land to land when both the varams are held by the same individual. These provisions seem, on the contrary, to point to a desire on the part of the legislature to guard against the character of ryoti lands being permitted to be changed and tenants being deprived of their occupancy rights.
33. Turning to the definition of the word 'landholder', it seems to me that an Inamdar of the description in question falls within the first as well as the second portion of the definition. It is said that the land of which the Inam consists is not a part of the estate under Section 3(5). The terms of the Reference assume that the land in question is within a Zemindari. If, physically, the land is within a Zemindari, I fail to see how the land is not part of an estate. Would it be argued that a purchaser of a part of the estate does not come within the definition on the ground that, though the part he purchased is geographically within the 1 mits of the estate it is still not a part thereof? I am unable to accept this contention.
34. It is said by Sir John Wallis, C.J. in Gadadhara Das v. Suryanamyana Patnaik 64 Ind. Cas. 317that an Inamdar is not 'a person owning an estate or part thereof.' The reason for adopting that view is said to be that the Inamdar pays a kattubadi or cist to the Zemindar who, as he reserves to himself an interest in the land in making the grant, must be deemed to be the full owner. With great respect, it seems to me that this argument ignores that the Zemindar himself is liable to pay revenue to the Government and he is none the less by reason of that fact a landholder. To hold that an Inamdar is not a landholder would be to deprive the Inamdars dealt with under Section 3(2)(d) and Section 3(2)(e) of rights of landholders, and it would be strange to hold that their lands are estates, but that they have not the rights of landholders under the Act. This difficulty was felt by Wallis, C.J., and he explains that the Inamdar under Section 3(2)(d) or 3(2)(e) must be held to be a landholder for the purpose of the Act, but that is 'not because he comes within the definition as owning an estate but because it would be repugnant to the subject or context to apply the strict definition of 'land-holder' to such cases.' I agree with Sadasiva Aiyar, J., that a minor Inamdar does own his Inam lauds is the same sense in which an Inamdar under Section 3(2)(d) or Section 3(2)(e) does.
35. Under the second part of the definition an Inamdar would be a landholder if he is a 'person entitled to collect the rent of** any portion of the estate by virtue of any transfer from the owner.' Minor Inamdar seems to be clearly such a person. He is entitled to collect the rents of his portion of the estate by virtue of the grant to him by the Zemindar. Sir John Wallis, C.J., finds difficulty in adopting this construction because rent is defined in Section 3(11) as 'whatever is lawfully payable in money or in kind r in both to a landholder for the use or occupation of land in an estate.' 'His estate' means the estate of the landholder mentioned in the clause, and as the estate is nor the Inamdar's estate rents referred to in the definition of landholder do not include payments by tenants to an Inamdar for the use and occupation of land in an estate which is the estate of the superior landholder. This argument seems, with all respect, to involve a fallacy. If this view be correct, a mortgagee of a part of a Zemindari would not for a similar reason be a landholder because the rents he is entitled to collect are not rents of a portion of his estate. But no one would deny that a mortgagee would be a landholder under the second part of the definition. I would respectfully adopt the criticism of Ayling, J., of this view and say, 'that the rent which the Inamdar is entitled to collect by virtue of his Inam grant is, identical with the rent which is lawfully payable to the Zemindar before the grant.' Kumaraswami Sastri, J., in the case already referred to, expresses the view that 'the definition of 'landholder' in Section 3(5) can only be invoked, if at all, when the transfer of the melvaram is to a person who does not own the kudivararn which is in somebody else.' Does it mean that a mortgagee of a part of the Zemindari which part is ryoti land and is not in the occupation of tenants at the time of the mortgage cannot be treated as 'landholder' as defined by the Act? Can it be said that a mortgagee of such a part cannot sue his tenants for recovery of rents by virtue of the transfer or that the tenants admitted to possession of ryoti land subsequent to the transfer do not acquire occupancy rights? With all deference, I am unable to agree with the view contained in the passage quoted above.
36. I have so far endeavoured to show that, on a strict construction of the definition of landholder, the Inamdars of the class in question come within the definition, and also to show that to adopt this view is not opposed to the general scheme of the Act or to the policy of the Legislature as expressed in the other sections of the Act.
37. In contending for the other construction it has been argued that the Legislature has indicated its intention to treat Inam as an estate when only melvaram has been granted to the Inamdar, and Section 3(2)(d) has been relied upon in support of this argument. The observations of Wallis, C.J., in the case already referred to no doubt, lend some support to this argument. It seems to me, however, that no useful purpose can be served by drawing any inference from Section 3(2)(d) in the face of Section 3(2)(e) which refers to Inams within estates, as the Legislature has carefully omitted the limitation which finds a place in 3(2)(d) with the result that in the case of Inams within estates the Inamdar may possess both melvaram and kudivaram.
38. The view I am inclined to take, it is suggested, will lead to an anomaly. If the Zemindar parts, first, with his kudivaram right in favour of an individual and. on the next day, grants to the same individual the melvaram it is said the grantee will not be a landholder and any tenants he may admit to the possession of the land will not acquire rights of occupancy. It is then asked, does the grantee become a landholder if both the varams are granted simultaneously instead of as in the case supposed on two successive days? The anomaly becomes more marked by supposing the case of a Zemindar who grants a plot to his elder daughter on condition that she should pay, say Rs. 100 which represents the full value of the melvaram and who, at the same time, grants another plot to his younger daughter fixing the amount to be paid, say at Rs. 90 which ex hypothesi is an amount less than the equivalent of the landholder's share. Is the grantee, it is asked, in the former case a ryot, whereas in the latter a landholder? At one stage in the 'course of the argument, I confess that, sensible of the difficulties arising from either of the answers that could be given to the question referred to us, I myself suggested these illustrations, but I am satisfied that the view to which I have given expression on the question referred to us is the correct one. In the cases above-mentioned the Courts will, probably deal with the question as one of intention, and will, no doubt, prevent the evasion of the law by ascertaining the real nature of the trails-action and what in effect it amounts to.
39. I shall examine these illustrations a little more closely. It is said that, because the first daughter grantee, is not a landholder, therefore, the second daughter grantee, if not also a landholder. Let us suppose that the Zemindar makes a third grant subject to the payment to him of a cist of Rs. 10, would the grantee be a landholder? The answer, if the argument I am dealing with is correct, would be that the grantee is not a landholder. Let us then take the case of a grant without any reservation of rent: would it be contended that the grantee is still not a landholder? Instead of a part of the land being granted as gift, free of rent, let us suppose that a part has been sold outright to a purchaser for a fixed sum of money, would the contention still be that the purchaser is not a landholder? So far, at any rate, as the last two cases are concerned, the transferee taking under a gift or a purchase would be a landholder under the definition of the term, because each of them is a person owning a part of the estate. It is, therefore, unsafe to seek to ascertain the legal principle applicable from a discussion of the illustrations of the nature referred to.
40. It may not be irrelevant to refer to another consideration. If the proposition that a minor Inamdar is not a landholder is correct, the Zemindars will be enabled to grant ryoti land in small parcels to their favourites or dependants, who, as a result of the grant, will enjoy higher rights than their grantors themselves had; for, the tenants of the zemindars are denied occupancy rights, whereas if the Zemindars had admitted, previous to the grant, tenants to possession, the latter would have permanent rights of occupancy.
41. For these reasons, I would answer the reference in the affirmative, holding that the grantee is a landholder within the meaning of Section 3(5) of the Madras Estates Land Act.
42. As the majority of the Court takes that view, the answer of the Court to the question referred is in the affirmative.