K. Veeraswami, C.J.
1. If the lands of the petitioners are held to be janmam lands and constitute janmam estate as defined in the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, the provisions of the Act will apply to the lands, and as janmam lands, they will be an estate within the inclusive definition of the term in Article 31-A(2) and the Act will also receive the protection of Article 31-A(1) of the Constitution. But, if, on the other hand, as alleged by the petitioners what were janmam lands became in course of time ryotwari lands, the said Act (to be referred to hereafter as Janmam Estates Abolition Act) will have no application to them. As the petitions raise a common question, we shall refer to the facts in W.P. No. 117 of 1970, since they are typical of those in the others. The petitioner in that case is O'Valley Estates Ltd., which is a company engaged in plantation industry and is cultivating and manufacturing tea and other plantations products in O'Valley Village of Gudalur Taluk, Nilgiris District. It is having an estate of an extent of 20,000 acres or thereabouts which had in about the 19th century been taken on lease from Nilambur Kovilagam, who were the owners thereof. The Wynaads comprised the taluk of Gudalur in the Nilgiris District and the taluk of Wynaad in the Malabar District. The whole area was originally included in Malabar District but the portion comprised in Gudalur Taluk was transferred to the Nilgiris District in the year 1877. Gudalur Taluk contains 12 desams. It is not in controversy that originally land owners in Malabar were janmis and considered to be absolute propa proprietors of the lands. Settlement was introduced in the Gudalur Taluk between 1886 and 1889 and re-survey and re-settlement, in or about 1928. The lands in the taluk have beeit classified as ryotwari or as inam as the case may be in the resurvey and resettlement registers. So far there is no dispute, but the parties differ as to the effect of the settlement and re-settlment upon the tenure of the land. The petitioners assert that as a result of them, the lands ceased to be janmam lands and are now governed by the ryotwari tenure. The State denies that that is the effect, and contends that notwithstanding the settlement and re-settlement, the lands; continue to have the character of janmam lands and that they have not actually been held under ryotwari pattas with reference to the rate of assessment, classification of soils, etc. It is pointed out that a sizable extent of janmam land is assessed at the rate of Rs. 0.0.6 per acre as against the ordinary taram rate of Rs. 2 for such lands. For example, for survey No. 33/1-A of Gudalur village, the petitioner in W.P. No. 64 of 1970 pay an assessment at the rate of Rs. 0.0.6 for 944 acres which is equal to Rs. 29-8-0-while the rate for survey Nos. 33/1-B and 33/AC is Rs. 2 per acre. Similarly for survey No. 46/1 the petitioner in W.P. No. 117 of 1970 in O'Valley village pays an assessment of Rs. 437 at Rs. 0.0.6 for an extent of 13,985 acres. It is further stated that only for administrative purposes the lands have been grouped under different classifications such as ryotwari tenure, inam tenure etc. The State would say that mere existence of old survey, settlement and re-settlement registers cannot be the basis to conclude that those areas have been converted into ryotwari, based on the principles applicable to the ryotwari system and that even in the settlement and resettlement registers relating to Gudalur taluk, there is no reference to soil classification, irrigation. sources, determination of money rates to be applied to different classes and sorts of soils in the various groups of villages which form part and parcel of the requirements to effect ryotwari settlement. So the crux of the matter is to find whether jenmam lands, as they were originally have lost their character as such and have become ryotwari lands as the result of the settlement and resettlement.
2. The Janmam Estates Abolition Act, which received the assent of the President on 6th December, 1969, and published on 17th December, of the same year, is intended to provide for acquisition of the rights of the janmis in janmam estates in the Gudalur taluk of the Nilgiris District and the introduction of ryotwari settlement in such estates. The statement of objects and reasons in the Act refers to the fact that in pursuance of the policy of abolition of all intermediaries between the Government and the actual cultivators, the zamindari, under-tenure and inam estates and all minor inams, leaseholds, etc., had been abolished under the various legislative measures and all these lands had been converted into ryotwari lands by the grant of patta to the persons entitled thereto. But all the same, the special system of land holding known as the janmi system was still in vogue in the Gudalur taluk of the Nilgiris District. According to the definition of 'estate' in, Article 31-A(2)(a) of the Constitution, any janmam right in the States of Tamil Nadu and Kerala also constitutes an estate. In the circumstances, the statement goes on to say, the Government decided to abolish the system of janmam tenure on payment of compensation to the janmis at the rate of twenty times the average net annual income derived by them from the janmam estate and that the jenmi and the verumpattamdar would be entitled to ryotwari patta for any land on proof of personal cultivation for three agricultural years and that if no janmi or verumpattamdar was entitled to patta, any other person who had cultivated the land for three agricultural years would be entitled to such patta. The Act is exactly on the pattern of the Act relating to the abolition of Zamindaris and inams. By Section 3 every janmam estate, on and from the notified date, shall stand transferred to the Government and vest in them free of all incumbrances. The following other provisions provide for grant of ryotwari pattas, survey and settlement of janmam estates, determination and payment of compensation and miscellaneous matters. 'Appointed day' means the date appointed by the Government under Section 1(4) which says that the Act shall come into force on such date as the Government may, by notification, appoint. The expression 'jenmi' is defined by Section 2(7) to mean a person entitled to the absolute proprietorship of land and includes a trustee in respect thereof and the previous clause defines a 'janmam estate' as any parcel or parcels of land included in the holding of a jenmi.
3. In the Glossary to the Fifth Report 'janmam' is said to imply birth, birth, right, hereditary or proprietary right in the soil. We find from the Madras District Gazetteers relating to Malabar that the origin of Janmam has been, stated thus at page 305:
Parasurama created Malayam, the Keralabhumi, and gave it as a gift to the Brahmins of the 64 gramams. The gift of flower and water given to the sixty-four gramams together for their enjoyment is called janmam.
On the basis of this and other texts, the Gazetteer adds:
the Brahmins support their claim that they and they alone have always enjoyed the full janmam OF proprietary right in the land; and as Brahmins are expressly exempted by Manu from payment of taxes, the tradition is offered as a simple and satisfactory explanation of the absence of any general land revenue in Malabar at the time of the first Mysorean. invasion.
The early British administration appears-to have generally accepted this tradition,, though it seems that they were more concerned with giving an accurate account of the land tenures as they found them. In 1793 one Mr. Farmer, one of the first Commissioners for inspecting the countries-ceded by Tippu Sultan, reported that the possessors of land were of two descriptions : (1) Jelmkaars or free holders-who held their lands either by purchase or by hereditary descent and (2) Kanoonkaars or mortgagees, to whom an actual delivery of the land appeared to be made, although the money taken upon it was not at all proportioned to the value of the land. In 1800 Dr. Buchanan referred to the Janmis before the conquest by Hyder as the actual lords of the whole soil Major Walker, who prepared in 1801 an elaborate treatise on the several forms, of conveyance and leases, stated that jenmakaran possessed the entire right to the soil and no earthly authority could justly deprive him of it, but his right was confined to the property and he possessed neither judicial nor political authority. Mr. Thackeray reporting on and tenure in 1807 has observed to the same effect and said that almost the whole of the land in Malabar, cultivated and uncultivated, was private property and held by janmam right, which conveyed full absolute property in the soil. According to one Mr. Warden, who was Collector of Malabar from 1804 to 1816, the jenm right of Malabar vested in the holder an absolute property in the soil.
4. In Secretary of State v. Ashtamurthi I.L.R.(1890) Mad. 89, in which considerable evidence was examined, it was pointed out that jenmis or the proprietors of the soil in Malabar had long been in the habit of leasing out the greater portion of their estates to kanomdars who were thus in the immediate occupancy of the greater part of the soil. Parker, J. one of the members of the Division Bench, observed:
This was the State of things at the time of Hyder's conquest and the British Government is stated to have continued the practice of the Mysore Government in settling the assessment with these kanomdars. At the annexation of Malabar in 1799 the Government disclaimed any desire to act as the proprietor of the soil, and directed that rent should be collected from the immediate cultivators, Triambad Ranu v. Nana Bhavani (1975) 12 Bom. H.C.R. 144 and Secretary of State v. Vira Rayan I.L.R.(1886) Mad. 175, thus limiting its claim to revenue. Further, in their despatch of 17th December, 1813, relating to the settlement of Malabar the Directors observed that in Malabar they had no property in the land to confer, with the exception of some forfeited estates. This may be regarded as an absolute disclaimer by the Government of the day of any proprietary right in the jenmi's estates, and is hardly consistent with the right of letting in a tenant which is certainly an exercise of proprietary right.
We will have occasion to refer to Secretary of State v. Ashtamurthi I.L.R.(1890) Mad. 89, in greater detail, but at this stage we may note that it was clearly pointed out by both the learned Judges who decided the case, that janmam was an absolute proprietary right in the soil, subject only to liability to payment of revenue. Meenakshi v. Secretary of State : AIR1914Mad841 , and Neelakhandan Nambudripai v. The Secretary of State (1920) 12 L.W. 371 : 55 Ind.Cas. 770, also affirmed that janmis owned absolute rights in the soil of the land. Subba Rao, J. (as he then was) observed in Kochuni v. States of Madras and Kerala : 3SCR887 .
Under the definition, any janmam right in Kerala is an 'estate' 3 A janmam right is the freehold interest in a property situated in Kerala. Moor in his 'Malabar Law and Custom' describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as 'proprietary interest of a landlord in lands,' and such a janmam right is described as 'estate' in the Constitution. Substituting 'janmam right' in place of 'estate' in Clause 2(b) the 'rights' in Article 31-A(1)(a) will include the rights of a proprietor and subordinate tenure-holders in respect of a janmam right.... Janmam right is a freehold interest in property and the landlord is called 'janmi'. He can create many subordinate interests or tenures therein, such a verumpattom (simple lease), Kushikanom (mortgage of waste land with a view to its being planted on) Kushikanapattam (mortgage of waste land for improvements, the tenant paying rent), kanom kuzhikanom.
A janmi is, therefore, an absolute proprietor of the soil, subject only to the liability to pay land revenue, the claim to revenue having probably come into being some time after 1802. In Section Sabhayogam v. State of Kerala : AIR1963Ker101 , his right as such has been recognised. Section 3(12) of the Malabar Tenancy Act proceeds on the footing that a janmi is absolute proprietor of the soil and that is what is mentioned in the definition of janmi in the Gudalur Janmam Estates Abolition Act. Janmam tenure, therefore, is one in which the janmi has an absolute proprietary right in the soil and is entitled to create sub-tenures as observed by Subba Rao, J. (as he then was) in Kochuni v. States of Madras and Kerala : 3SCR887 . He holds the property directly under the Government, not as a tenant, but as a proprietor, subject only to the liability to pay the tax or revenue. Incidentally it follows that janmam right carries the indicia of an estate as is understood in the law of land tenures in Madras. The expression 'estate' has been defined in the Madras Estates Land Act, 1908, which is a law relating to land tenure. Madras Regulation XXVI of 1802, the Madras Proprietary Estates' Village Service Act, 1894, 'The Malabar Land Registration Act, 1895, and the Madras Survey and Boundaries Act, 1897, contain definitions of an 'estate' which though not enactments relating to tenures, point to the basic elements of an estate, namely, the holder's proprietorship in the land and direct relation to the Government by paying the land revenue to' them and capacity to induct sub-tenures involving the relationship of landlord and tenant.
5. Can it be said that these basic elements of janmam lands, which we noticed about, have ceased to exist and the janmam lands have become ryotwari lands by reason of the introduction of the settlement and resettlement? What constitutes ryotwari tenure is well settled. In theory, a ryotwari pattadar is not the proprietor of the land and there is certainly no possibility of occupancy ryots under the ryotwari pattadar. Also the pattadar, if he so desires, may relinquish his holding in favour of the Government so as to be relieved of the liability to pay revenue. But what he relinquishes is not his ownership in the soil, but only his right as a tenant under the Government. The basic assumption on which a ryotwari tenure proceeds is that the Government or State is the owner of the land and that ryotwari pattadar is the tenant and, therefore, the Government is entitled to share the produce, the Government's share being determined on a system of survey, field classification and net produce. It will suffice to refer to the authoritative statement as to the ryotwari system in K. Kunhikoman v. State of Kerala : AIR1962SC723 . Wanchoo, J., who spoke for the Court, stated:
The holders of ryotwari pattas used to hold lands on lease from Government. The basic idea of ryotwari settlement is that every bit of land is assessed to a certain revenue and assigned a survey number for a period of years, which is usually thirty and each occupant of such land holds it subject to his paying the land revenue fixed on that land. But it is open to the occupant to relinquish his land or to take new land which has been relinquished by some other occupant or become otherwise available on payment of assessment (see Land Systems of British India by Baden-Powell, Volume III, Chapter IV, Section II, page 128). Though, theoretically according to some authorities, the occupant of ryotwari land held it under an annual lease (see Macleans, Volume I Revenue Settlement, Page 104), it appears that in fact the Collector had no power to terminate the tenant's holding for any cause whatever except failure to pay the revenue or the ryots' own relinquishment or abandonment. The ryot is generally called a tenant of Government but he is not a tenant from year to year and cannot be ousted as long as he pays the land revenue assessed. He has also the right to sell or mortgage or gift the land or lease it and the transferee becomes liable in his place for the revenue. Further, the lessee of a ryotwari pattadar has no rights except those conferred under the lease and is generally a sub-tenant at will liable to ejectment at the end of each year. In the Manual of Administration, as quoted by Baden-Powell, in Volume III of Land Systems of British India at page 129, the ryotwari tenure is summarised as that 'of a tenant of the State enjoying a tenant-right which can be inherited, sold, or burdened for debt in precisely the same manner as a proprietary right, subject always to payment, of the revenue due to the State.
Though therefore the ryotwari pattadar is virtually like a proprietor and has many of the advantages of such a proprietor, he could still relinquish or abandon his land in favour of the Government. It is because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta, though he had many of the advantages of a proprietor.
In that case the Court was concerned with the validity of the Kerala Agrarian Relations Act, 1961. The lands in question were situate in that part of South Canara which, in the wake of the States Reorganisation Act, 1956, became part of the State of Kerala. Peculiar to South Canara land tenure were two kinds of tenures, namely, mulawargdar and Sarkari geniwargdar. These tenures were something like the janmam tenure. But in this area ryotwari system was introduced in the early years of the current century and as pointed out by Sundaraja Iyengar, in his 'Land Tenures in the Madras Presidency' II Edn., pp. 45747' 'after the introduction of the ryotwari system into South Canara, no distinction now exists between the wargadar, the mulawargadar and Kudutaledar and they are all ryotwari pattadars.' Having regard to these facts, the Supreme Court held that the lands changed to ryotwari tenure were not estates within the meaning of Article 31-A(2)(a) of the Constitution. The Court contrasted the incidents of the two tenures and outlined the basic idea underlying as estate and the ryotwari enure. It was pointed out that the basic idea of an estate was that the person holding the estate should be the proprietor of the soil and should be in direct relationship with the State paying land revenue to it. Per contra, the basic idea of ryotwari settlement is that every bit of land is assessed to a certain revenue and assigned a survey number for a period of years, which is usually thirty; and each occupant of such land holds it subject to his paying the land revenue fixed on that land. But it is open to him to relinquish his land. A landholder in an estate is the proprietor of the land and, therefore, there is no question of relinquishment in his case. But in the ryotwari system the pattadar is the occupant of the land, not its proprietor, and hence he can relinquish if he so desires to avoid tax or land revenue. S. Sabhayogam v. State of Kerala : AIR1963Ker101 applying K. Kunhikoman v. State of Kerala : AIR1962SC723 , held that what was janmam land in Malabar in that case had been converted into ryotwari land on the introduction of the system and,, therefore, the lands did not constitute an estate for the purpose of the Kerala Agrarian Relations Act, 1961.
6. The whole question, therefore, is; whether by the introduction of the settlement and resettlement in Gudalur taluk, janmam lands in the taluk became ryotwari lands. That would depend upon the actual terms and effect of the settlement and resettlement and what was actually done in the taluk which could be said to have put an end to the incidents, of the janmam tenure and converted the-lands into ryotwari lands.
7. We find from the Revenue proceedings over the century that Wynaad has had peculiar features which made the revenue settlement unlike the usual ryotwari scheme of settlement. History records that there was a rebellion by Pychy, who was a native chieftain. He was overpowered and his rebellion was suppressed. By a proclamation issued in 1805 the estate of the Pychy rebel and those of his principal adherents had been, confiscated, but the confiscation does not appear to have been fully carried out and only paddy flats then under cultivation had been actually escheated. Hill forests and unoccupied tracts which in Wynaad constituted the greater part of escheated property, remained undefined, but as time went on, and some lands were developed, there were encroachments by private persons setting, up vague claims to janmam right. In the circumstances, therefore, there were repeated attempts to find a solution, but nothing was actually done until 1883. In that year, one Mr. A.E.C. Stuart, I.C.S., was deputed to Wynaad with a definite mandate to restrict his operations-to the enquiry into titles. But finding, that this by itself would not be sufficient, the Government resolved upon a revenue settlement of the taluk, and for that purpose directed complete land registered of the usual type to be prepared. On a scheme submitted in 1895 the principles; of the settlement were resolved upon according to which taxation on the basis of cultivation was abandoned in favour of an assessment, on occupation. But it was decided that the settlement, like that of the Nilgiris Hills, should be an entirely special one, the soils being roughly arranged in classes or tarams and a scale of rates applied thereto. The patta was to be a mere note of the revenue payable and was to be issued in the name of the person, whether Janmi or not, who in virtue of occupation, paid the tax. The scheme included the ordinary system of darkhast and relinquishment. It seems even prior to 1885 a rate of Janmabhogam was charged which is referable to the proprietary right of a janmi, which stood transferred to the Government either by escheat or by other process. Unlike in the usual ryotwari scheme of determining assessment, in fixing the rates, no attempt was made to estimate yield or cultivation expenses or to base the assessment upon any definite proportion of the net produce. Generally speaking wet lands were charged on a scale of rates rising from annas eight to Rs. 2-8-0 and the soils would appear to have been classified in classes, sorts or tarams to correspond with the money rates. Dry lands were not classified, but were arranged in four classes and assessed at rates ranging from annas eight per acre to Rs. 2 per acre. The highest class Included forest lands and coffee and cinchona cultivation. Special rates were fixed for estates held under private janmis or acquired in good faith from private janmis who had been ousted by Government at the escheat settlement. Land under actual cultivation was charged Rs. 2 per acre and what is called a pepper corn charge of six pies per acre was levied on the unplanted portion. Estates held on Government patta were also charged the proper rate per acre on the whole area occupies, whether cultivated or otherwise, in addition to the usual janmabhogam. This is the scheme of settlement first introduced a Wynaad in about 1886 or thereabouts by Mr. Stuart. This information is found from G.O. No. 977, Revenue, dated 2nd September, 1884, G.O. No. 611, Revenue, dated 22nd July, 1886, as well as G.O. No. 741, Revenue, dated 27th August, 1886. The first of these Government Orders shows that the assessment was fixed not on the basis of the net produce on a fieldwar taram classification, but the lands were broken into fields and a low rate of assessment fixed according to the whole area of the block. We also find from the first of the Government Orders that Mr. Stuart's classification was confined to three classes of lands : (1) cases where the holders declared that they had no Janmam right and admitted that of the Government in virtue of escheat, (2) cases where persons claimed to exercise in escheat lands Janmam right as trustees or on behalf of temples and similar institutions, and (3) cases of estates and grants of mining rights acquired from reputed janmis in lands which were, or could be, proved to be escheat lands. In the first case, the parties in occupation were to be confirmed on a charge of janmabhogam. As to the second, it was found that was a more difficult case, as the claims of alleged janmis were ill-defined as to the extent of the land and very slight and uncertain evidence was available as to the status of the parties. The Government directed that the Settlement Officer should endeavour to effect an arrangement under which the, indefinite claims to janmam right in large tracts of land should be abandoned, the temples receiving in lieu of specific grant of land or of land revenue as service inam of the ordinary kind. Where, however, janmam rights of temple or temple trustees were proved, they would be registered like private janmam rights. In the last case, the observation was that in many cases the original title of the reputed or pretended janmis was baseless, and in some cases even fraudulently asserted. In view of this, the Government stated:
to enforce upon the present proprietors the Government claim to full janmabhogam on the whole extent of these properties would possibly be inexpedient, and would convert the settlement, intended for the quieting of titles, into a general disturbance of them. The amount of Janmabhogam at stake is too small to make it worth while to do this.
And so the Government's direction was that where the land could be shown to be escheat, the person next in title to the original false janmi should be required to attorn to Government and to pay to it as janmabhogam whatever sum, if any, was payable under the existing covenants to the janmi against whom the claim of Government by virtue of the escheat could be asserted. We find from the first of the said Government Orders that the question of Janmabhogam was independent of revenue (assessment). It was also pointed out that Janmabhogam wherever imposed and in whatever manner assessed, would be redeemable by a lump payment as under the then existing orders. In the next order of the Government which we referred to, reference was made to the existence of private property in Janmam lands and of subordinate tenures and absence of irrigation works maintained by Government. In view of this and other special features, the Government concluded that the* proper course was to make the settlement of Wynaad an entirely special one as was done in the case of the Nilgiris Hills, she soils being roughly arranged in classes or tarams and a scale of rates applied hereto. The Government did not accept the Revenue Board's proposal that all cultivable waste lands belonging to janmis should be assessed to land revenue. This was because, according to the Government Order, the land Revenue was the Government's share of the profits of cultivation and could not fairly be assessed on land which was unoccupied and which nobody wanted for that purpose. Further the Malabar custom, which the Board had referred to, went against than in favour of their argument. Then comes the following passage in the order of the Government:
The patta under the new settlement of the Wynaad will be merely a note of the revenue payable to Government and should be made in the name of the person who in virtue of occupation pays the revenue. Such person will not necessarily be the janmi, nor the actual cultivator. The occupant will be the person who has the control over and possession of the land, and the buildings and crops upon it which are the security for the public revenue.... The suggestion that with the new settlement the system of darkhast (application) and razinama (relinquishment) shall be introduced is approved.
But, at the same time, the Government did not think it necessary that legislation was necessary since in its view 'the question is one of general administration rather than that of settlement.' The general principles on which the settlement would be conducted are to be found in Appendix-A to G.O. No. 741, Revenue, dated 27th August, 1886, and these principles 1 are those which we have already referred to. To reiterate briefly, the classification of land was to be in two main divisions, wet and dry, and wet lands were to comprise paddy flats and swamps known as 'nilams' 'kandams' 'vayals' and 'Xellis' (sic) and dry lands were to include all other lands on which dry cultivation(whether estate, garden, motan, ponaatt or takkal) was or could be carried on. Wet lands were assessed on a scale of nine rates extending from a minimum of eight annas per acre to a maximum of Rs. 2-8-0 per acre, according to the various classes or tarams to which they belonged. Dry lands would be assessed on a scale of four rates ranging from a. minimum of eight annas per acre to a maximum of Rs. 2 per acre. The highest class would include forest lands and coffee, cinchona etc. cultivation. Government janmam lands, whether wet or dry, would be charged janmabhogam at the rate of eight annas per acre in addition to assessment. On and after the introduction of the settlement, all lands, whether wet or dry, should be taken up or relinquished under the system of 'darkhast' and 'razinama.' The settlement was to remain in force for the usual period of thirty years.
8. One important feature of the above-settlement was pattas were granted to actual occupiers and no attention was paid to the janmis who had absolute proprietary right in the soil. This was the cause for the failure of the scheme, even before it had been given effect to.
9. Secretary of State v. Ashtamurthi I.L.R.(1890) Mad. 89, which was decided on 19th September, 1889, by Parker and Shephard, JJ., ruled (1) that where land was private property as in Malabar, the right of the Government was limited to that of charging the proprietor with revenue, (2) that the Malabar Pattadar, unless a janmi, was not a landholder within the meaning of the Revenue Recovery Act, (3) that the practice of granting cowles to cultivators without the janmi's permission was illegal and (4) that the Government had no right to effect a settlement with the Janmi's tenant, as if he were the proprietor. These results of the decision have been acknowledged in G.O. No. 1902, Revenue, dated 1st November, 1926, which introduced resettlement in Wynaad. In that case, the plaintiff, as uralen of a certain devaswam, was a janmi. The Collector of Malabar had granted a patta to the 2nd defendant, who held under a cowle from him. Patta was granted without the knowledge of the janmi. The pattadar having defaulted, the land was brought to sale under the provisions of the Revenue Recovery Act, 1864, and the land was purchased by the 3rd defendant at the revenue sale. The suit was to set aside the sale. This Court held that the interest of the janmi did not pass by the sale. It appears that the patta itself had been granted subject to the right of the janmi. A mass of evidence was examined in this case which covered the period between 1792 to 1859. The Government, which was the 1st defendant, alone resisted the suit, but unsuccessfully. It was admitted that the land in Malabar was private property, but the Government contended that co-existent With the proprietorship of the janmi was its right to allot to any person not the proprietor of the soil the right to cultivate any waste land in the janmi's estate which was capable of cultivation, but which the janmi had not cultivated. This right was sought to be founded upon the right of the State to derive a revenue from all land cultivated or capable of cultivation. The contention was rejected except that the Government had the right to charge revenue but to do no more in respect of the private property of the janmi in the soil. It is well worth extracting some of the important observations from the decision. Parker, J., one of the learned Judges says:
The evidence shows that the Janmis or the proprietors of the soil in Malabar have long been in the habit of leasing out the greater portion of their estates to Kanomdars who are thus in the immediate occupancy of the greater part of the soil. This was the state o things at the time of Hyder's conquest (Exhibit XIV) and the British Government is stated to have continued the practice of the Mysore Government in settling the assessment with these kanomdars. At the annexation of Malabar in 1799 the Government disclaimed any desire to act as the proprietor of the soil and directed that rent should be collected from the immediate cultivators Triambak Ranu v. Nana Bhavani (1875) 12 Bom. H.C.R. 144, and Secretary of State v. Vira Rayan I.L.R.(1886) Mad. 175. Thus limiting its claim to revenue. Further, in their despatch of 17th December, 1813 relating to the settlement of Malabar the Directors observed that in Malabar they had no property in the land to confer, with the exception of some forfeited estates. This may be regarded as an absolute disclaimer by the Government of the day of any proprietary right in the Janmis' estates and is hardly consistent with the right of letting in a tenant which is certainly an exercise of proprietary right.
It seems the first trace of the assertion of the right of the Government to allot to any person the right to cultivate any waste land in the janmis' estate was made in 1827. But with reference to the specimen cowle submitted in September, 1827, by one Mr. Sheffield, the Revenue Board said:
The Board conclude that the form of cowle which the principal Collector has forwarded is intended for unclaimed, lands considered as belonging to the Circar; and that the expression 'you will be held accountable for the Janmakar's or proprietors' share of the produce' is only meant to intimate to the occupant that when his assessment, comes to be fixed, he will be regarded as a mere tenant, not as proprietor, and will have to pay the whole of his landlord's rent to the Circar.
The Board of Revenue did not consider that the Government had power to grant cowles for other than unclaimed lands which were at the disposal of the Government. It was pointed out by the learned Judge that this was consistent with the despatch of the Marquis Wellesly and that of the Court of Directors of December, 1813, as would be seen from Triambak Ranu v. Nana Bhavani (1875) 12 Bom. H.C.R. 144, so it was clear to the learned Judge that till 1829, the Government had not asserted the right which it claimed before the Court. In November, 1841, one Mr. Conolly referred to the impropriety of the Government issuing cowles for the cultivation of lands which were not their property, but he justified the issue of cowles on the ground of convenience, but not of legal right. In 1846, the same officer is said to have written thus:
The Government have nowhere so thoroughly relinquished their claim as sovereign as to leave it in the power of any proprietor to leave his ground waste to the detriment of the public interest.... If landholder will not cultivate his waste the Government consider themselves at liberty to get some one who will, reserving always to the said landlord the share of the produce which his right as proprietor entitles him to according to the usuage of the country.
Parker, J., commented that here was the first trace of the claim of the Government together with the underlying, fallacy that the janmi's rights were to a share in the produce only and ignoring his right as proprietor to the soil itself. Mr. Conolly went further in 185O and instructed his Tahsildars that Government gained nothing in recording the name of the janmi in the cowle. Parker, J., observed with reference to that that nowhere Mr. Conolly gave reasons for the opinion advanced by him that it was not within the power of a private proprietor to leave his land waste to the detriment of the public revenue. The learned Judge reviewed the specimen document and then said:
I have now reviewed all the documentary evidence on the record as to the origin and existence of the alleged custom, and I find nothing whatever to show that the right now contended for has ever been formerly claimed in any general notice or proclamation and the whole evidence tends strongly to show that the claim in its present form was first advanced by Mr. Conolly in 1846, and apparently originated in his zeal for the public revenue and for the reformation of the Moplahs of Malabar....
It appears to me that Mr. Winterbotham's evidence proves not that the right claimed by the Government has been acquiesced in, but that jenmis have, as a rule, taken steps to assert and preserve their rights of property when brought into peril by the action of the Collectors.
The Government bases its claim neither upon legislation nor upon judicial decision, but upon customary law.... It is admitted that the janmi is really proprietor and that he can oust any person holding a patta from Government and retain the land himself subject only to his liability to pay the revenue. Ho therefore is and has a legal right to be the landholder within the meaning of Section 1 of the Revenue Recovery Act. It therefore appears to me that where land is private property as in Malabar the right of Government is limited to that of charging the proprietor with revenue. If the proprietor does not pay the revenue assessed on his land, his proprietory rights can be determined under the provisions of Act II of 1864, but the Government is bound to proceed to determine his interest in a manner which the law recognises. Rajagopala Ayyangar v. Collector of Chingleput (1871) 7 M.H.C.R. 98.
The other learned Judge, while agreeing nth Parker, J. stated:
By the mere fact of a cowle being given and taken, no benefit accrues to the grantee in his relations to the jenmi, and conversely the janmi is in no way prejudiced.... The rights of the janmi are certainly not less extensive than those of the mirasidar.... It is quite true, as was insisted in the argument, that the land is security for the revenue, but a security pre-supposes an obligation, and unless, therefore, an obligation has been imposed on the landaolder, it is difficult to see how his interest in the lead can be affected. The right of the Government is only a right to a charge of the land and a right to forfeit by due course of law the title of the person holding the land who does not pay the charge.
This decision clearly established that where the land was private property as in Malabar, the right of the Government, was limited to that of changing the proprietor with revenue. This and the other propositions established by this decision, which we have already noticed, as reported in G.O. No. 1902, Revenue, dated 1st November, 1926, have firmly been kept in view in the subsequent revenue proceedings. Immediately after the decision, the Government by G.O. No. 1152, Revenue, dated 3rd December, 1831, ordered that Wynaad survey and settlement should be revised in such a manner as to conform with the law as laid down by the High Court, fresh pattas being issued to janmis. As a matter of fact, a proclamation to this effect was issued with G.O. No. 346, Revenue, dated 27th, April, 1893. Investigation of Janmi's title was directed and the progress of the work was pushed through. The possibility of the janmi refusing registry and of a tenant being registered in his stead was effectively countered by the Janmam Registration Act, 1896, Pattas were later issued to janmis, but it is significant to note this in G.O. No. 1902, Revenue, dated 1st November, 1926:
This brought up the question whether the janmi could relinquish cultivation whether by himself or his tenant and with it the liability to pay assessment, without surrendering his janmam right. The Board considered that in such a case, an out and out relinquishment of janmam right should be made, but in G.O. No. 250, Revenue, dated nth June, 1896, the Government decided that relinquishment without surrender of janmam right be accepted provided that the land was not taken up for cultivation in the year following relinquishment and that notice of relinquishment was given before a prescribed date.
The settlement with the modifications made necessary by Secretary of State v. Ashtamurthi I.L.R.(1890) Mad. 89, which took effect sometime in 1897 left undisturbed thq janmam tenure of the lands and the janmis as absolute proprietors of the soil. This is evident from the following observations at page 70 in the Manual of the Revenue Settlement Department, Madras, published by the Government in 1952:
The registration of the janmi as the 'landholder' being compulsory at law, settlement with him was the only legal course. At the same time, Government desired it to be widely made known that the principle of settlement which was finally adopted did not in any way affect the land tenures obtaining in the district, that it would not in any way disturb the prevailing relations between landlords and tenants nor prejudice the proprietory rights of land owners. On the one hand, the clear and unequivocal registration of all janmam titles will facilitate the realisation, in a manner recognized by law, of the revenue to which Government is entitled. On the other, the adjustment of terms between landlords and tenants and the modifications thereof inevitable on the introduction of settlement, will, as heretofore, remain matters of contract; but uncertainty of proprietary right and consequent grounds for litigation will be minimized, the security of landlords and tenants alike being thereby promoted.
The resettlement was introduced in 1926-27 and the special features of it have been noticed in the Madras District Gazetteers at page 358. One of the special features of the resettlement was that lands known as 'Government Janmam' and 'private Janmam' at the original settlement were classified as 'new holdings' and 'old holdings' and on all lands on which janmabhogam was collected and on all Government assessed waste lands, the taram assessment and janmabhogam were amalgamated and a consolidated assessmeat was fixed, and all future assignments of Government waste lands were to be at these rates. Private janmam wet lands and Government janmam wet lands were registered as 'permanent wet' and failure to cultivate such lands could not create any right to remission of assessment on them unless their registered holders had relinquished before the prescribed date all their rights in them. With reference to dry lands private janmam lands under regular occupation from year to year and Government janmam lands were classed as 'developed' and all other lands as 'undeveloped' for the purpose of assessment and a consolidated rate of assessment took the place of the charges separately made under the heads 'taram assessment' and janmabhogam paid in respect of Government janmam lands.
10. We have made this extensive review which, as we think, establish (1) judicial decisions over a long period, and, therefore, the Government, recognised that the janmi was the proprietor who had the absolute proprietary right in the soil subject only to payment of revenue : (2) janmam right in the proprietor has never been since Secretary of State v. Ashtamurthi I.L.R.(1890) Mad. 89, interfered with in the settlement or resettle ment; (3) the settlement and resettlement were meant merely for fixing revenue which was not on the actual basis of net produce or on the principles applicable to ryotwari assessment; (4) the system of darkhast and razinama (relinquishment) was given up after 1888, and if janmam land was Waste it was not assessed; (5) the registration from 1894, was both of private janmam and Government janmam and they were classified separately; private janmi paid no janmabhogam but an occupier of Government Janmam, land paid janmabhogam; (6) the Janmabhogam collected by the Government and the revenue paid to it were regarded as distinct entities and the janmabhogam was collected in addition to the revenue, though both the items of charge were after the resettlement were merged into one; (7) pattas were given to janmis from 1894. but they were only for the purpose of revenue and could not legally interfere with the private proprietary right of the janmi in his jenmam lands and (8) the principle of settlement as finally adopted and the resettlement did not in any way affect the land tenures obtaining in the District and caused no prejudice to the proprietary right of the landholders. We are of the view, therefore, that private janmam lanis have not through the settlement and resettlement been Converted into ryotwari lands. As a result, jarnnam lands in the Wynaad constitute janmam estate to which the provisions of the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act are applicable. We are also of the view that because of Article 31-A(2)(a)(i) of the Constitution, janmam right is an estate for the purpose of the Article and the Act its therefore protected by Article 31-A(1) from an attack based on violation of Article 14, 19 and 31.
11. The petitions are dismissed with costs. Counsel's fee Rs. 100 in each.