Rajagopala Ayyangar, J.
1. This is an appeal against the judgment of Venkatatama Aiyar, J., in a petition C.M.P. No. 6745 of 1951 to quash the order of the Estates Abolition Tribunal, Madurai. The learned Judge allowed the application and granted the relief prayed for by the petitioner. Respondents 1 and 2, who were the main contesting respondents before the learned Judge, have preferred this appeal.
2. The question in issue in the present appeal is whether the village of Ekkattu Thangal in Chingleput District is or is not an 'inam estate' which could be taken over by Government under the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948) and incidentally a further question whether the learned Judge had jurisdiction to quash the order of the Estates Abolition Tribunal which held the village to be such an 'estate'.
3. Before dealing with the merits concerning the two points above-mentioned, it would be convenient to narrate the proceedings that took place before the matter reached this Court. The Settlement Officer, No. III, Chittoor, initiated proceedings suo motu under Section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948), to determine whether this village of Ekkattu Thangal is or is not an estate within the meaning of that Act. Notices were duly served as.required by the enactment and the present appellants who are ryots in the village appeared before him. One E.K. Govinda Reddi who was a mortgagee purchaser of the village also appeared before this officer and raised the contention that the village was not an estate. Evidence was let in and after considering this the officer held that the village was not an inam estate, the main ground of his decision being that the village was held under a lease granted by the Government in September, 1914 and that there was therefore no 'grant in inam' of the village so as to fall within Section (3)(2)(d) of the Madras Estates Land Act. The ryots who had appeared before the Settlement Officer took the matter in appeal before the Estates. Abolition Tribunal, Madurai, and the Tribunal by a majority reversed the decision of the Settlement Officer and held the village to be an 'inam estate'. The second member of the Tribunal wrote a dissenting judgment confirming the order of the Settlement Officer. The mortgagee purchaser who represented the landholder thereupon filed C.M.P, No. 6745 of 1951 on the file of this Court for the issue of a writ to quash the order of the Estates Abolition Tribunal. As stated before the learned Judge granted the prayer of the petitioner and quashed the proceedings of the Tribunal. The learned Judge held that there was a clear distinction between a grant in inam and a lease, that the former contemplated the assignment of a free-hold interest and that in the case before him there was no grant but only a lease. He therefore held that the village could not fall within the definition of 'estate'' within Section 3(2)(d) of the Madras Estates Land Act. He also held that what the Court had primarily and solely to consider was the terms of the grant or other document on which the title of the owner was founded, and when this was available, the subsequent conduct of the parties was wholly irrelevant for the determination of the question whether the village was an inam estate or not. As there had been several proceedings between the lessee and the persons in cultivation of the land which had recognised occupancy rights in the latter, the learned Judge made a reservation in these terms:
The position therefore is that the ryots in the village of Ekkattu Thangal must be held to have occupancy rights from time immemorial, that such a right existed prior to the enactment of the Estates Land Act and the said right remains unaffected by the repeal of the Act. Mr. Umamaheswaram, the learned advocate for the petitioner, conceded that the tenants have rights of occupancy even though the deed, dated 7th September, 1914, did not create an estate as defined in Section 3(2)(d) of the Estates Land Act. The result therefore is that while the tenants have permanent occupancy rights, the petitioner will be entitled to hold as lessee under the deed, dated 7th September, 1914 and that such right is not affected by the Madras Act XXVI of 1948.
Having reached the conclusion that the Tribunal had proceeded to determine the question whether the village was an inam estate or not from the subsequent conduct of the parties, which was wholly irrelevant and not from the terms of the document which was the only relevant consideration, the learned Judge held that there was an error apparent on the face of the record and quashed the order of the Tribunal. It is from this decision that the present appeal has been filed by the ryots.
4. Before dealing with the contentions raised on behalf of the appellants, we shall deal with a preliminary objection that has been raised by Mr. Bhashyam Aiyangar, learned Counsel for the first respondent. His argument was on these lines. The question now before the Court is whether the village is one which is 'an inam estate' which can be abolished and taken over by Government under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. If the village were within the Act it is the Government that could take it over. The only persons, therefore, who could be aggrieved by a decision against the applicability of the Act to this village are the Government. They have not filed any appeal. In conceivable: cases the ryots might be interested in challenging the decision. But those would be where the determination of the question whether the village is an inam estate or not materially affected their rights of occupancy in the land. In the present case, the occupancy rights of these ryots have been completely safeguarded by reservation in the judgment under appeal which we have extracted above. In these circumstances, Mr. Bhashyam urged that the appellants were not persons aggrieved by the judgment of the learned Judge and that Government not having filed any appeal there could be no challenge of its correctness. We find ourselves wholly unable to accept the argument of learned Counsel. To start with it is necessary to state that the appellants were the contesting respondents before the learned Judge. Though certain rights of theirs have been safeguarded, their main contention was rejected by the learned Judge. Being parties to the writ petition in this Court, we find it impossible to uphold an argument that they could not prefer an appeal against the decision which negatived their contentions. Under Section 9(2) of Act XXVI of 1948 which prescribes the procedure to be followed by the Settlement Officer, before he determines whether a village in his jurisdiction is an 'inam estate' or not, he has to publish a notice requiring all persons claiming an interest in any land in the village to file before him statements bearing on the question whether the village is an 'inam estate' or not, and under, Sub-section (3) of that section he has to hear the parties, that is, those who have filed statements before him afford to them a reasonable opportunity of adducing evidence and hear them before giving his decision. It will be seen from these provisions that the issue before him in regard to which persons claiming an interest in any land in the village raise a dispute is whether the village is an 'inam estate' or not. It is from a decision on that matter that under Section 9(4)(a) any person deeming himself aggrieved by the decision of the Settlement Officer is to file an appeal. The appeal before the Tribunal was by these appellants under this provision and the issue they raised was the tenure of the village and not the right of each or any of these persons in any particular land in the village. When they succeeded in their appeal before the Tribunal the matter was brought up here and the appellants defended the writ petitions. The issue as to whether the village is an 'inam estate' or not is still the subject-matter of enquiry in this appeal and this is precisely the point which they sought to prove by the statement which they filed before the Settlement Officer. In the light of these provisions we fail to see how the reservation of their rights of occupancy has any bearing on the determination of the question whether the appellants are or are not aggrieved by the decision of the learned Judge. We have no hesitation in overruling the preliminary objection and in holding that the appeal is competent and has to be heard on the merits.
5. We shall first deal with the contention that the learned Judge was in error in holding the village not to be an inam estate. The history of the village so far as could be gathered from the records appears to have been shortly this. Ekkattu Thangal was granted by the Nawab of Carnatic to one Kasim Ali Beg, but the date of the grant is not known, nor its terms or purpose. We know, however, that the grant was subject to a condition against alienation. This condition appears to have been broken by the descendants of the grantee, who having become indebted to one Shamier Sultan first mortgaged and then sold the property to him in 1787. Shamier applied to the Government of Madras for the recognition of his title to the village. On 30th September, 1796, the East India Company granted him a lease of 'all that piece or parcel of ground situated in and lying at Ekkattu Thangal containing 8,46,920 sq. feet or 139 cawnies, 16 grounds of 2120 sq. ft.' within stated boundaries for the full end and term of 99 years from thence next ensuing. We shall be referring in due course to the terms of this lease deed, for learned Counsel on both sides laid considerable emphasis on several of these terms in support of their respective contentions. But before doing so we shall complete the narrative of the transactions upto the date of the proceedings under Section 9 of Act XXVI of 1948. The lease of 1796 expired on 29th September, 1895. There appear to have been alienations of the leased village and these alienees continued to enjoy the property without eviction but started negotiations for the renewal of the lease in pursuance of a covenant for renewal contained in the lease, dated 7th September, 1914, by the Secretary of State in Council in favour of the person then entitled to the leasehold interest for a further period of 99 years, the term fixed under the renewal, however, running from 30th September, 1895 to 29th September 1994. We shall set out the terms of this deed and discuss the tenure created thereby in their proper places. The lessee subsequently applied to the Collector of Chingleput to be registered as a landholder under the Madras Estates Land Act but the application was rejected with the endorsement that as the village was held under a lease, it was not an inam village to which the provisions of Madras Act I of 1908 applied and it was not therefore possible to grant the petitioner's request to register his name as a landholder. The lease of 1914 contained among others clause of forfeiture for breach of certain covenants with a provision for re-entry on the occurrence of such events. The lessee defaulted in the payment of rent and in pursuance of the clause of forfeiture and re-entry, the Government of Madras terminated the lease on 5th March, 1926, though subsequently 18 months later the order was cancelled on application by the lessee, he undertaking that there would be no such further defaults thereafter. There was, however, another default by the lessee which resulted in the lease being again cancelled in October, 1933 and this order remained in force until application by the lessee after repairing the breach. The order cancelling the lease was withdrawn on 2nd March, 1936. These proceedings would appear to indicate that there was no grant in inam but a mere lease and that the lessee could not be deemed to be an inamdar within Section 3(2)(d) of the Estates Land Act. There were, however, certain proceedings between the lessee and his tenants in which it was held that the village was a grant in inam so as to render it an estate within Section 3(2)(d) of the Madras Estates Land Act. These proceedings, however, which were between the ryots cultivating lands in the village and the landholder are certainly not res judicata as between the lessee and the Government for the purpose of determining whether the lease-deed of 1914 constituted the village of Ekkattu Thangal an 'inam estate' to which the provisions of Act XXVI of 1948 applied. Indeed the learned Counsel for the appellants did not raise any such contention before us, though the same had been urged before the learned Judge whose decision is now under appeal.
6. The question whether the village is or is not an inam estate has to be decided solely on the construction and legal effect of the two lease-deeds of 1796 and 1914 referred to already. But before dealing with these deeds it is necessary to notice one contention of learned Counsel for the appellants which related to the legal effect of the original grant to Kasim Ali Beg by the Nawab of Carnatic and the devolution of that interest by purchase on Shamier Sultan. The point that was sought to be made was that the village of Ekkattu Thangal was granted in inam to Kasim Ali Beg and that this determined the tenure of that village forever. We are clearly of the opinion that this argument is unsound and has to be rejected. In the first place we know nothing about the terms of that grant and what exactly was conveyed under it. Secondly, even if there was such a grant the estate created was forfeited and determined by the alienation and when the East India Company leased the village to Shamier Sultan in 1796 it proceeded as if on a clean slate and on the footing that the earlier title had been effaced and extinguished. Indeed there is no reference even to the earlier grant in this bilateral document and therefore Shamier also must be taken to have given up all claims on the basis of any antecedent rights or title.
7. It is true that on the date of these proceedings under Act XXVI of 1948 the title of the lessee was traceable only to the lease-deed executed by the Madras Government in September, 1914, but as that was specifically in renewal of the earlier lease, we consider that it would not be improper to refer to the earlier deed as indicative of the rights of the lessee subject of course to any variations that these might have undergone by the conditions imposed by the later deed.
8. The question for our consideration is whether under the lease-deeds of 1796 and 1914 the village is 'an inam estate' within the meaning of Section 2(7) of Act XXVI of 1948. 'Inam estate' is there defined as 'an estate within the meaning of Section 3, Clause 2(d) of the Estates Land Act but does not include an inam village which became an estate by virtue of the Madras Estates Land (Third Amendment) Act, 1936.' Section 3(2)(d) before its amendment by the Amending Act, 1936, referred to above ran:
Any village of which the land revenue without the kudiwaram has been granted in inan to a person not owning the kudiwaram thereof provided that the grant has been made, confirmed or recognised by the British Government.
9. Do these lease-deeds of 1796 and 1914 constitute grants of the land revenue of a village without the kudiwaram to a person not owning the kudiwaram thereof? In regard to the lease of 1796 which was executed by the East India Company, there is a further question whether this grant has been recognised by the British Government.
10. We shall first consider the deed of 1796 and the terms which have been relied upon by the learned Counsel for the appellants as supporting their case that the lease was a grant or an assignment of the melwaram to a person not owning the kudiwaram. This indenture of lease after setting out the parties to the deed proceeds to effect the demise in these terms.
The President and Council having demised, leased, let and to farm letting and by these presents to demise, lease, let and to farm let unto the said Shamier Sultan, his heirs, executors, administrators or assigns....
11. Then follows the clause describing the parcel of the land which is the subject of the demise which we have already extracted. The habendum is in these terms:
The lessee was to have and to hold together with all benefits and advantages arising or to arise thereby unto the said Shamier Sultan his heirs, executors, administrators or assigns from the day of the sale thereof until the full end and term of 99 years from thence next ensuing and fully to be completed and ended.
12. The covenants undertaken by the lessee are next set out. They comprise (I) a covenant against assignment at any time during the term demised of the premises demised or any part thereof to persons who shall not be under the licence and protection of the said company, that is to aliens. (2) A covenant against doing or permitting the doing of any act or thing on the demised premises which might grow to the annoyance, grievance or damage of the said Company 'their tenants or the inhabitants or their bounds.' This is followed by a proviso for re-entry reserved in the Company in the event of a breach of the covenant and in such an event to repossess and enjoy as if this lease deed had never been made. This is succeeded by a covenant for quiet enjoyment in favour of the lessee to quietly hold, use, occupy, possess and enjoy the said piece or parcel of ground with the appurtenances without the lawful let, suit, trouble, ejection or disturbance of the said Company or any person or persons whatsoever lawfully claiming or to claim by, from or under them. Then there is a covenant for the payment of rent 'at the end and expiration of the aforesaid term of 99 years' for the use of the said Company the full and just sum of 100 pagodas current money of 'Fort St. George'. On these covenants being fulfilled there is a covenant for renewal for a further term of 99 years upon such terms and conditions as shall be judged reasonable by the lessor.
13. Basing himself on these terms read in the light of the previous history of this village, the argument of Mr. Vedantachari, learned Counsel for the appellants, was shortly this. Though in form a lease the indenture of 1796 is in reality 'a grant' or an assignment of the land revenue of the village to a person not owning the kudiwaram thereof. The learned Judge, Venkatarama Aiyar, J., had held that the transaction between the Company and Shamier Sultan being merely a lease could not be held to be a grant in inam because 'a grant' implied the conveyance of freehold estate and a mere lease was insufficient to constitute 'a grant'. Conceding that a mere lease as such might not amount to a conveyance necessary to constitute a grant in inam the contention was that what was intended to operate as a grant took the form of a lease because of the theory which still prevailed at the end of the 18th century that the State was the owner of the soil and all that it could grant was merely some right in the land-a doctrine akin to that prevailing in feudal times in England. It was therefore argued that having regard to the theory prevalent at that date a lease was thought of as the medium for compassing the grant. An inam, it was urged, signified a reward or favour and meant merely a beneficial alienation or a gift of a benediction by a superior to an inferior. Reference was made to the definition of the term in Wilson's Glossary as 'a grant of rent free land without any reference to perpetuity or any specific condition.' Our attention was also invited to a passage in Baden-Powell, Land System, Vol. 3, page 79, which runs:
All native Governments were in the habit of rewarding favourites... by granting the revenue on the land whether they granted the land itself or not.
This gift it was said might assume various forms. It might take the form of a grant of land on which no assessment had been levied or on which the full assessment is not levied. The reduction in assessment which is the essence of such a gift might range from some small reduction in the revenue to the assignment of the entire revenue on the land. Where the land itself is a subject of grant with a right to pay no khiraj or payment of a favourable rate of assessment the grant though an inam, would not, however, fall within the definition of Section 3(2)(d) of the Madras Estates Land Act as it stood before the amendment of 1936. In the present case, however, the argument ran that it was clear that the land itself was not dealt with but what was granted was merely the State's share namely the revenue due on the land. The fact that it took the form of a lease did not detract from its quality of being an assignment of revenue for a term. The duration of the grant is not a matter which affected the question or determined whether it was or was not an inam grant. The East India Company was the superior and Shamier Sultan was one who looked to the Company for some benefit. On these lines it was argued that even assuming that the transaction was in truth a lease it did not cease to be an assignment of land revenue within the meaning of Section 3(2)(d) of Madras Act I of 1908.
14. We shall be dealing in due course with the decisions on which reliance was placed by learned Counsel for the appellants that a 'grant' might take the form of a lease. We might, however, state here that the form of the transaction is not irrelevant for the purpose of considering its real nature in law. We are clearly of the opinion that the lease of 1796 was not a grant for two reasons. In the first place we are of the opinion that the view of Venkatarama Aiyar, J., that the grant implies a transference of a freehold right is correct and is justified by the authorities and indeed Mr. Vedantachariar did not seriously dispute the correctness of this proposition in law. Secondly, we find it difficult to reconcile the concept of a grant which is a gift or a benefaction with a bilateral transaction that is embodied in this indenture of lease under which covenants are entered into by both parties. For instance, the East India Company had entered into a covenant to secure quiet enjoyment by the lessee of the premises demised. The fact that the rent was either nominal or non-existent, a question we shall consider later, does not really bear on the nature of the transaction.
15. The decisions on which learned Counsel relied in support of the position that even a lease might be a grant in inam were: Secretary of State for India in Council v. Srinivasachari , Ramalinga Mudali v. Ramaswami Iyer (1928) 29 L.W. 760, Secretary of State v. Varada Tirtha (1942) 2 M.L.J. 367 : L.R. 69 IndAp 22 : I.L.R. 1942 Mad. 893, and Secretary of State v. Krishnarao . What the Judicial Committee had to decide in Srinivasachari's case , was whether the shrotriem grant in the particular case conveyed the right to minerals in the village which was the subject-matter of the grant. The Board ruled that an inam grant 'may be no more than an assignment of revenue' and the fact that the minerals on the land were reserved to the Crown did not detract from the grant being one in inam. The only point decided was that even where the land is the subject-matter of the grant the entirety of the interest of the grantor need not be conveyed by the grant. Their Lordships held from the surrounding circumstances of the particular shrotriem grant which was for the support of the grantee who was a Brahmin that the entirety of the interest of the grantor including the right to the minerals was not conveyed but it was only a right 'to appropriate the produce of the seasons' that was the subject of the grant. We are unable to see how this decision in any way helps any point that arises in this case. Ramalinga Mudali v. Ramasami Ayyar (1928) 29 L.W. 760, which related to the tenure of two villages in Chingleput was cited by Mr. Vedantachariar as authortiy for the position that even a mortgage might be a grant in inam. The villages whose tenure was in controversy had been originally granted by the Nawab of Carnatic to one Khairunnissa but was subsequently repurchased from the descendants of the grantee by the Nawab himself. After the repurchase, the Nawab mortgaged the villages to one Khaja Chamier in February, 1782 and put the mortgagee in possession and the latter's successors-in-interest, retained possession upto the date of the litigation which came up to this Court. In or about 1784 the East India Company who had about four years previously taken the management of the Chingleput Jagir into their own hands leased the Jagir including these villages to one Ponoappa Mudaliar. The Company's lessee was resisted by Khaja Chamier when he attempted to take possession of these two villages. There was an investigation by a committee constituted by the East India Company and on the basis of that recommendation the Company recognised the title of Khaja Chamier to the possession of these villages on a decision reached that these two villages were not part of the Company's Jagir. The question which this Court was called on to decide was whether the villages held by Khaja Chamier were or were not Jagirs-a description which had been applied to them in several of the subsequent Government records after the Company's sovereignty was established over the district in 1801. The learned Judges of this Court held that the villages were not 'Jagirs' but were grants in inam. Learned Counsel for the appellants is not correct in his submission that the Court held that it was the mortgage to Khaja Chamier that was held to be the grant on which the tenure of these villages was held to be 'inam' tenure. The passage from the judgment of Venkatasubba Rao, J., at page 786, clearly establishes that what the learned Judges were considering in that case was the nature of the original grant to Khairunnissa and not the title created in Khaja Chamier by the mortgage by the Nawab in February, 1782. The learned Judge there said:
Then comes the question is the grant to Khairunnissa a jagir grant or a grant in inam? For, it is this grant that is material, as the property, as I have said, has throughout retained its original character
and it was on this argument that was held to be a grant in inam. Secretary of State v. Varada Tirta (1942) 2 M.L.J. 367 : L.R. 69 IndAp 22 : I.L.R. (1942) Mad. 893 was concerned with the right of an inamdar to right to water free of water cess the question depending on whether the grant of the village of Vagaikulam in which the channel was situated comprised the lands of that village or was merely an assignment of the land revenue on it. Their Lordships confirming the judgment of this Court held that the land itself was the subject-matter of the grant. The Inamdar was the Vyasarayaswami Mutt and it based its title on a grant made by a Muhammadan ruler in 1753. Though a copy of the grant was not available, there was proof that this had been produced before the Inam Commission in 1864. In the earlier registers the inam has been described as 'granted' on Kattukuttagai tenure for the support of the Vyasarayaswami Mutt and was shown as liable to pay a fixed jodi to the Government. The Inam Commission confirmed this grant and a title-deed was issued which described the inam grant as 'the whole village of Vagaikulam'. The main question which the Judicial Committee was called on to consider was whether the expression 'Kattukuttagai' was inconsistent with the grant of the land itself and whether it necessarily limited the interest of the grantee to the revenue on the land. Their Lordships held that expression meant land 'held in farm' at a permanently fixed money rent. Their Lordships were at pains to point out that the phraseology employed was consistent with the grant being of the land itself as distinguished from an assignment of the melwaram alone. It is interesting to note that the terms used in the present deed of 1796, namely 'to demise, let and farm let', have been explained by Sir George Rankin in a passage at page 909 as indicative of a lease of the land itself and not merely as an assignment of the revenue due on it. Krishna Rao's case (1945) 2 M.L.J. 352 : L.R. 72 IndAp 2: (1946) I.L.R. Mad. 225 (P.C.), also related to the right to take water without payment of water cess and this depended on whether the grant comprised the land itself or was only an assignment of the melwaram. Reliance was placed by learned Counsel on a passage in the judgment of Lord Goddard:
The grant itself could not be found and indeed it seems that no formal cowle was ever issued. It appears that it had been the original intention of Government to grant the shrotriem for three lives but as Govinda Rao died before any cowle was issued it was confirmed for two lives in favour of Govinda's son Krishna Rao the respondent's grandfather.
A detailed examination of this judgment would show that the cowle that was referred to was never produced as none was issued but what was produced before the Court was a draft of a cowle which was said to have been in use at the time of the original grant. The operative portion of this document which was there marked as Exhibit VI and which we have examined ran:
The Governor-in-Council of Fort St. Georg has been pleased to grant and does hereby grant to the said A B and after his demise to his two next heirs in succession all rents or revenues payable to the Government either in money or in kind for and on account of the lands specified in the schedule A hereunder annexed.
Their Lordships while holding that if there was proof that the original grant was in the form adopted in this draft, no more than the melwaram of the village could have been conveyed examined the evidence and pointed out that there was no proof that this form was adopted. Indeed there was no evidence that there was any cowle making the grant and it was only from the Inam proceedings as well as from the subsequent conduct of the Government that their Lordships drew the inference that the subject-matter of the original grant was the village itself and not the land revenue alone. The decision therefore does not help the appellants. On the other hand we have an indication as to what exactly would be the form of the cowle that is spoken of in these decisions. The passage from the draft of cowle which we have extracted above would clearly show that it is really a grant of unilateral benefaction and not a lease as in the present case. All these documents being of the early years of 19th century would conclusively show that there is no foundation for the argument of learned Counsel for the appellants that conveyancers of that period drafted grants in the form of leases such as we have in the present case.
16. We are therefore of the opinion that these decisions do not assist learned Counsel in his submission that the indenture of lease is or could operate as a 'grant in inam'.
17. The next contention of learned Counsel was that if we accepted his argument that a lease could be a grant, the fact that it was of limited duration would not detract from its nature as an inam grant. We agree that counsel might be right in this submission but in view of the opinion expressed earlier that the lease in question is not 'a grant in inam' it is unnecessary to deal with this argument in detail or express any final opinion on its soundness.
18. The next head of argument of learned Counsel was based on the conduct of the Government in treating these villages as an inam and as pointing to the conclusion that though it was a lease, the parties intended it to be a grant. In regard to this reliance was placed (a) on a passage in the District Manual, page 342, where the village of Ekkattu Thangal is referred to as an enfranchised inam village, (b) an extract of the Taluk B Permanent Register of the village prepared in 1899 and marked as R. 8 before the Tribunal in which the village is treated as an inam, and (c) certain proceedings between the landholder and the cultivators in the village which proceeded upon the footing of the Madras Estates Land Act being applicable to determine their mutual relationship. We are clearly of the opinion that so far as regards items 1 and 2 are concerned, their evidentiary value is very slender and when we have before us the lease deed of 1796 on the terms of which the tenure of the village has to be determined and there is no ambiguity in its construction, this evidence, which merely consists of isolated pieces of subsequent conduct has little relevance in determining the question. On the other hand, there are other pieces of conduct on the part of the Government which tend in a contrary direction and these also have to be taken into account if subsequent conduct has any evidentiary value. Firstly, the lease of 1795 did not come up before the Inam Commission when the titles of inamdars were investigated and hence no title deed was issued acknowledging the lessee's title as inamdar. Though not conclusive on the matter, it does, however, indicate that the authorities in 1862 did not consider the lease of this village to be tantamount to a grant in inam. Next, there are proceedings of the Government when they refused to register the lessee as a landholder on the ground that the village was not an estate within the meaning of the Estates Land Act, a matter to which We have already adverted. Lastly, there are the proceedings already set out wherein the Government determined the lease of 1914 twice for non-payment of rent. In these circumstances, we consider that no value could be attached to the pieces of conduct on which reliance has been placed by learned Counsel for the appellants.
19. The proceedings between the landholder and the tenant when once it is conceded, as it has to be, that they are not res judicata as between the Government and their lessee are not evidence on which the tenure of that village can be determined; for the purpose of Act XXVI of 1948. They have therefore to be left out of account.
20. The next contention urged on behalf of the appellants was that this lease of of 1796 is not a lease but a grant though it styles itself a lease and professes to demise the land because there is no rent reserved under the deed. In this connection reliance is placed on the definition of a lease in Section 105 of the Transfer of PropertyAct, viz:
A lease of immovable property is a transfer of a right to enjoy such property made for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms.
where a reddendum in the shape of money or kind is postulated as an essential ingredient of a lease. There are, however, two answers to this contention. It is common ground that the definition in the Transfer of Property Act of 1882 does not apply to transactions before the date on which it came into force so as to determine the character of the transaction embodied in the deed of 1796. The matter has therefore to be judged in the light of the law which prevailed in 1796, the date of that deed. Mr. Bhashyam, learned Counsel for the respondents, submitted that under the law as it stood then a reservation of rent was not considered necessary for a valid lease and in support relied on a passage in Woodfall's Landlord and Tenant, 25th Edn., at page 333:
A pepper corn rent is a nominal rent not intended to be paid, but Stipulated for on the view (which is not correct) that the reservation of some rent is necessary to constitute a lease.
He also drew our attention to the earlier decisions of the English Courts which clearly establish that a reservation of rent is not a sine qua non of a lease. A deed which purports to be on the face of it a lease and which uses the phraseology and conveyancing terms appropriate only to a lease cannot normally be held to be a transaction of any other character except for overwhelming reasons and even if the construction of learned Counsel for the appellants is accepted and there is no stipulation as to the payment of rent during the currency of the lease, in our opinion it does not cease to be a lease solely on that account. But apart from this we are not satisfied that learned Counsel is right in his submission that in this deed of 1796 there is no stipulation for the payment of rent. It is not necessary that the rent should be paid periodically. It would still be rent whether it is paid at the beginning of a term in the shape of a fine or a premium or is payable at the end of it. The time fixed for payment does not alter its essential nature as a consideration for the lease. We have already set out the clause in the indenture of 1796 regarding the payment of 100 pagodas and in the context in which it occurs it is clear that it is one of the terms which the lessee has to fulfil as part of his obligations under the expiring lease. The contention that it is a premium in respect of the renewed lease, which is the argument of Mr. Vedantachari, is not justified on a proper construction of the language of the document, for the stipulation is that unless the lessee paid the sum of 100 pagodas as part of the condition of the lease granted in 1796 at the end of the term in 1895 he could claim a right to a further renewal at the hands of the lessor. In these circumstances the 100 pagodas is clearly a reservation of rent in respect of the original term and the argument of learned Counsel based upon the absence of reservation of rent is not borne out by the terms of this document.
21. The next point to be considered is, assuming the lease is a grant, ignoring its bilateral nature and the other circumstances we have already referred to, was it a grant of the land or of the revenue alone for unless it were the latter, it would not be an 'inam estate' and the appellants must fail. In dealing with this matter learned Counsel for the appellants placed considerable reliance on the entries in the paimash register prepared for the village in the late twenties of 19th century which disclosed the existence of cultivators in the village and it was urged that this would probabilise the cultivation of the lands in this village by tenants with rights even by 1796. Our attention was also invited to the clause in the lease-deed under which the lessee undertook not to do any act on the demised premises 'which may grow to the annoyance, grievance or damage of the said Company, their tenants, or the inhabitants or their bounds' as proof of the existence of tenants on the land. It was there fore urged that if there was a grant to Shamier Sultan it was not a grant of the land notwithstanding the terms of the indenture but only of the land revenue alone and that Shamier Sultan was not the owner of the kudiwaram in the village. On the other hand learned Counsel for the respondents relied on the terms of the indenture using the words 'demise, lease, let and farm let' read in the light of the covenant for quiet enjoyment:
Peaceably and quietly have, hold, use, occupy, possess and enjoy the said piece or parcel of ground with the appurtenances without the lawful let, suit, trouble, ejection or disturbance of the said Company or any person or persons whatsoever lawfully claiming or to claim by, from or under them....
He relied particularly on the use of the expression 'farm let' as conveying a right, to the use of the land itself (vide 2 Blackstone's Commentaries, 318 at p. 414). We see considerable force in the argument of learned Counsel for the respondents and see no sufficient reason for ignoring the specific terms of the conveyance. It might very well be that there were certain tenants on the land but so far as the East India Company was concerned, it purported to grant the land itself with a right to cultivate it under this indenture of lease. We do not consider that the reference to the tenants in the passage extracted above is sufficient to outweigh the terms and the, purpose of the demise-to farm, let, to cultivate and enjoy. But in view of our conclusion expressed earlier that the lease in question is not a grant in inam we feel it unnecessary to finally decide whether if it was a grant it was a grant of the land or merely of the revenue due on it.
22. The next head of argument was that there had been ah imposition of a quit rent of Rs. 21 per year after the lease of 1796 and that this amounted in effect to an enfranchisement of this inam grant which took the form of a lease. This argument appears to us far-fetched and not based upon any materials to support it. The whole basis of the contention is to be found in the fact that on some date not definitely ascertained the Government collected this sum of Rs. 21 per year from the lessee in lieu of rusums and maras payable as contribution for remuneration to village officers. To call this an enfranchisement is, in our opinion, a misuse of terms. If the inam was enfranchised, the renewed lease of 1914 appears to be meaningless. In fact in the face of the lessee's application for renewal of the lease there is no scope for any argument that the inam had been enfranchised by the imposition of a quit rent before 1895.
23. We are therefore clearly of the opinion that the lease of 1796 did not amount to a grant or assignment of land revenue to a person not owning the kudiwaram thereof. This lease terminated in September, 1895. According to learned Counsel for the appellants, the original tenure of this village continued to be an 'inam estate' notwithstanding the termination of the lease. But this, however, was not exactly how the lessee understood his rights. He had not made the payment of 100 pagodas payable at the termination of the lease and had thus not qualified himself for the renewal. Nevertheless he continued to be in possession of the property. Subsequently he made an application to the Government agreeing to fulfil his covenant under the lease and praying for its renewal. After prolonged correspondence and negotiations the Government granted a renewed lease on 7th September, 1914. When the Estates Land Act, 1908, was passed the village was not held under a grant falling within the definition of an estate in Section 3(2)(d) of that Act.
24. The next question is, did it become an estate by virtue of the lease deed of 1914? This would depend again upon the terms of this lease. Having regard to the date of this deed, that is one executed after the passing of the Madras Estates Land Act, its form is of crucial importance. It is not a grant, nor in terms an assignment of land revenue but merely an ordinary lease of land. Under the terms of this deed, the lessee bound himself to pay a rent of Rs. 244 per year as also a further sum of Rs. 21 being the commuted value of rusums, maras, etc. He was also bound to pay further sums at the end and expiration of every 30 years of the said demise. There was a clause for forfeiture and re-entry in the event of default in these payments. Of course there was no covenant for further renewal. It is impossible to treat this bilateral indenture of leases as an assignment of land revenue and learned Counsel for the appellants did not make any serious attempt to contend that if the lease of 1796 of which this was a renewal did not constitute the village an 'estate', the lease of 1914 had that effect.
25. We thus reach the conclusion that the village of Ekkattu Thangal is not an inam estate within the meaning of Section 2(7) of the Madras Act XXVI of 1948.
26. The next question that was argued by learned Counsel related to the jurisdiction of the learned Judge to interfere with the finding of the Tribunal that the village was an inam estate. The argument was that the jurisdiction of this Court in certiorari was limited to cases of error apparent on the face of the record and that the error if any in the judgment of the Tribunal in the present case could not satisfy this requirement and that on the other hand it was at the most an erroneous decision. We do not find it necessary to discuss or define the exact point of difference between an error apparent on the face of the record and an erroneous decision. As has been laid down in the recent decision of the Supreme Court in Hari Vishnu Kamath v. Syed Ahmed Ishaque (1955) I M.L.J. 157 : (1955) S.C.J. 267 : (1955) A W.R. 157, the question ultimately depends on the circumstances of each case. The majority of the Tribunal had laid down three propositions of law: (1) that the nature of the tenure should be determined by reference to the grant to Kasim Ali Beg, (2) that the form of the transaction as a lease of land in which the operative words 'were to demise, let and farm let' did not detract from the transactions being a grant and (3) that the subsequent conduct of the lessee and his tenants in invoking the provisions of the Madras Estates Land Act on the footing that the village was an estate would throw light upon the nature of the tenure created by the lease. Our discussion of the case would show that the Tribunal committed a patent error in respect of all these three matters. If their conclusion had been reached on the basis of such erroneous premises which go to the root of the matter, we are clear that the case is one not merely of an erroneous decision but of error on the face of the record which would attract the jurisdiction of this Court under Article 226 of the Constitution.
27. The result is that the appeal fails and is dismissed with costs. Advocate's fee Rs. 250.