1. The Ettayapuram Zamin estate was notified under Act (XXVI of 1948) with effect from 3rd January, 1951. The Zamindar moved the High Court by a writ petition challenging the validity of the above Act. His petition failed. He carried the matter in appeal to the Supreme Court. There too he failed. The Government took over possession of the estate on 26th September, 1954.
2. Thereafter, the Zamindar filed a Petition under the above Act before the Assistant Settlement Officer claiming that at the time the Government notified and took over possession of the estate, they included certain villages which were not part of the Zamindari but were really inam villages. He accordingly moved the Assistant Settlement Officer seeking to have determined the nature of 88 villages which, according to him, were not part of the permanently settled estate of Ettayapuram but were really inam estates coming within the meaning of Section 2(7) of Act, XXVI of 1948.
3. These 88 villages fall into two groups, one consisting of 87 villages and the other of a single village of Sivagnanapuram. The claim of the Zamindar was that these villages originally formed part of the Palayam of Panchalankurichi, which Pal ay am was confiscated as a result of the Poligar of Panchalankurichi taking up arms against the then Government represented by the East India Company. In view of the meritorious services rendered by the then Zamindar of Ettayapuram who was a Poligar in assisting the East India Company in quelling the rebellion led by the Poligar of Panchalankurichi, Katta Bomman, the then Government made a ' gift in inain ' of 79 villages forming part of the confiscated Palayam of Panchalankurichi to the then Poligar of Ettayapuram. It is these 79 villages that have now come to be grouped as 88 villages, the subject-matter of the present appeals.
4. We shall in due course refer to specific terms of the grants. At present, it would suffice to mention that the 'gifts' were completed under formal documents, dated 22nd January, 1800 and 12th September, 1801. Subsequently, however, as part of the Permanent Settlement Proceedings started and completed under the Madras Permanent Settlement Regulation XXV of 1802, the estate of Ettayapuram was permanently settled. It is common ground that at that time no distinction was made between that part of the estate which had all along belonged to the Poligar of Ettayapuram and the other villages of Palayam of Panchalankurichi which were gifted to the holder of the estate of Ettayapuram. On the basis that these disputed villages formed part of separate grants the terms of which grants brought them within the scope of an inam grant, the petitioner moved the Assistant Settlement Officer for a declaration to the effect that this group of villages fell within the description of an inam estate. 87 of these villages are said to be covered by a grant, dated 12th September, 1801 and one village, viz., Sivagnanapuram, is covered by a grant, dated 22nd January, 1800. The Assistant Settlement Officer held both on a construction of the terms of the grants and subsequent events that the grants only purported to incorporate all of these villages in the Zamindari of the appellant, and even if the grants were construed independently, they were intended only to secure to the Zamindar rights similar in their nature to those which he held in relation to the Ettayapuram Zamin. He further held that by reason of the subsequent proceedings under Regulation XXV of 1802, whatever might have been the alleged origin of the Zamindar's rights to those villages, those rights ceased and the Zamindar could not claim to hold these villages except as part and parcel of a permanently settled estate.
5. Appeals from the decisions on the Assistant Settlement Officer were taken to the Estates Abolition Tribunal. In the meantime, Act XXX of 1956, had come into force, whereunder the Tribunal was constituted conferring jurisdiction upon the Tribunal to decide the question which had been raised before the Assistant Settlement Officer. The Tribunal came to the same conclusion as to the Assistant Settlement Officer and dismissed the appeals. The present appeals arise from those decisions of the Estates Abolition Tribunal.
6. It is a matter of history that a large number of Poligars of Tirunelveli District, banded themselves together and rebelled against the then Government represented by the East India Company. This rebellion was headed by Katta Bomman, the then Poligar of Panchalankurichi. It is also undisputed that the East India Company had the advantage of the loyal assistance of the Poligars of Ettayapuram, Maniyachi and Melmandai in quelling this rebellion. For our present purposes it would be sufficient to state that the Palayam of Panchalankurichi was confiscated. In the Gazetteer of the Tirunelveli District, it is recorded:
A conspicuous exception amongst the eastern chieftains was the Poligar of Ettayapuram who although a Thotien like Panchalankurichi proved himself in the troubles that followed the staunchest adherent of the company. He was in fact the only Poligar who rendered effective assistance.
At page 81:
A proclamation was issued by Major Bannerman to all the Poligars notifying the commands of the Government. The Palayam of Panchalankurichi was declared confiscated; likewise the estates of the five Poligars... who had joined in the recent rebellion. Orders were given that all forts should be destroyed and that every firelock, matchlock pike or spear should be surrendered on pain of death. In consultation with the Poligars, it was decided that the work of demolition of forts and of disarmament should be left to their owners, the conduct of the Ettayapuram Poligar be held up to them for emulation.
7. On the 20th June, 1801, the Collector, Mr. Inshington, made certain proposals to the Board of Revenue, which, in so far as they are material for our purpose, are extracted below:
1. Since the reduction of Panchalankurichi, much of time has been given to calm the distractions of that taluk. Though the bulk of the inhabitants have returned to their villages, yet those of the Poligars estate, the Totiens and Kavalgars, keep aloof.
* * * * * *4. The increase in peishkush, the deprivation of caval, the interdiction against the future use of those implements, which had been so long regarded by the Poligars with such fond attachment were extended to all and it will be in remembrance of your Board that die arguments by which it was attempted to reconcile the Poligars to those privations were by none more strenuously combated than by the Poligar of Ettapore, upon the ground of that fidelity which he had ever testified towards the Company. But the mortification he suffered in being treated with the suspicion of a disaffected tributary had no influence upon his public conduct, for he paid the increase with punctuality, and gave no cause for a single complaint against him.
* * * * * *5. Such was the conduct he had observed prior to the present rebellion; during the progress of it he has conducted himself with uniform attachment manifesting on every occasion a sincere desire to aid the efforts of our troops to the utmost of his power. Besides the assistance derived from the Poligar in the reduction of the rebels, his example has had the most happy influence upon the other Poligars and adverting to the justice and policy of rendering the situation of a tributary who has thus conducted himself eligible and easy, it appears to me very expedient that this Poligar should receive some lasting mark of the Company's approbation.
* * * * * *7. From these considerations I take the liberty of submitting to your judgment the propriety of transferring to the Poligar of Ettapore upon a reasonable jumma the lands of Panchalankurichi immediately bordering upon Ettapore according to the enclosed statement A.
* * * * * *9. The havoc since occasioned by death and emigration among the people, the complete destruction of many villages and the great loss of cattle by plunder have so materially reduced the value of the villages, that they are no longer capable of yielding nearly the amount which was realised from them in the last year. It becomes necessary therefore in calculating the sum which the Poligar ought to pay from these lands to make some deduction from the Jumma of the last year on account of the unfavorable circumstances I have stated, and which I conceive cannot be calculated at less than 20 per cent. This deduction made I would propose that the Poligar should pay to the Company two-thirds of the remaining gross revenue, reserving the other third for his own expenses and as a reward for his constant attachment to the Company's Government....
8. The proposals suggested in Mr. Inshington's letter to the Board appear to have been accepted with some modifications by the Board with the following result. In a letter from the Governor-in-Council, dated 10th August, 1801, addressed to the Collector of Tirunclvcli, the proposals for the future treatment of the Panchalankurichi lands, were dealt with in this manner:
2. The Board have considered and recommended to Government the plan we have proposed for the division of the Panchalankurichi lands amongst the Poligars who have manifested attachment and allegiance during the troubles in the southern provinces.
* * * * * *5. The Government have authorised the annexation of the lands bordering upon Ettapore to the charge of the Ettapore Poligar. You will explain to him that this voluntary addition to his landed property is founded on Government's approbation of his fidelity and that they have bestowed this reward for the meritorious example he has exhibited of attachment to the Company. The jumma of these lands has to be fixed for a period of three years... this period will be sufficient for the country to recover when the revenue should be raised to two-thirds of the gross collections...and that to become the permanent demand on the country which is very moderate.
Apparently, intimation of the proposed division of the lands of Panchalankurichi and of the addition of a portion thereof to the 'charge of Ettapore Poligar' was given to the Ettayapore Poligar and some objection the nature of which is not quite clear, seems to have been advanced by him. In a letter from the Collector Mr. Inshington to the Poligar of Ettayapuram, Mr. Inshington stated:
I have received your letter, dated the 1st of September relative to the lands of Panchalakurichi and as I observe that you have not perfectly understood the motives of His Lordship in Council in thus voluntarily proposing to make a large addition to your landed property, I lose no time in sending to you the letter which in the warmth of my regard for you and in the desire of conferring upon you some lasting mark of the Company's approbation, I wrote to the Government together with His Lordship's answer....
9. The Poligar's objections were met by the above letter. On the 12th September, 1801, a Parwana was issued, the relevant portions of which are extracted below:
Whereas you have conducted yourself faithfully to the Company's administration...whereas it is desired to make you eminent you are given the six Mahanams...within Panchalakurichi jurisdictions. The possession of these six Mahanams is given to you and you are also given greater rights therein as a reward to your work. On account of this you shall keep these six Mahanams in your possession and hold and enjoy the same, for ever from son to grandson. You should treat this gift as something more than what you expected, knowing that greater rights are conferred on you in respect of these six Mahanams, and that these will remain with you and your children for ever. You should be very careful in the matter of getting tenants to these villages and in the matter of raising greater produce, and pay what is due to the company in respect of these Mahanams, and you shall hold and enjoy the balance for yourself....
10. Simultaneously, a proclamation was issued bringing to the notice of all the citizens of the area that certain portions of the Panchalankurichi Palayam had been granted to Ettayapuram Palayakar and calling upon the tenants to conduct themselves obediently and be subject to the control and direction of the Ettayapuram Palayakar.
11. This grant was in respect of 87 villages. In respect of one other village Sivagnanapuram, the Sannad had been granted on the 22nd January, 1800, which was briefer in its terms and ran thus:
Especial confidence being reposed in your fidelity and obedience, the Government of Fort St. George have been pleased to grant to you and to your heirs the village of Sivagnanapuram in token of their approbation.
This sannad is therefore to be considered your authority for immediately assuming the said village and for holding the same in perpetuity.
It is the proper construction of these two grants that is in question in these appeals.
12. Broadly stated, the Tribunal took the view, that the intention of the Government in making these grants being to make a large addition to the landed property of the Ettayapuram Poligar and to transfer and incorporate certain Mahanams in his zamindari, despite the use of the expression such as 'bestowing a reward in approbation of the faithful conduct of the Poligar', amounted to nothing more than enlarging the extent of the Ettayapore Zamindari. Particular attention was focussed upon the fact that in the grant of the year i8or, the Poligar was under an obligation to pay to the Company jumma that was due. Though they were grants, so the Tribunal held, they were not grants in inam. It was also pointed out that following Regulation XXV of 1802, there was a permanent settlement effected in respect of the Ettayapuram Palayam, including in such permanent settlement these 88 villages, apparently in pursuance of the stipulation, explicitly contained in one of the grants that the Poligar shall pay what was due to the company. In addition, the Tribunal held that the failure of the grantee to have the status of these villages determined at the time of the Inam Commission Proceedings in 1863, alongside the fact that he accepted the permanent settlement of these villages under Regulation XXV of 1802 for the last century and a half must lead to the conclusion that it was never understood at any point of time by the parties thereto that these grants were grants in inam.
13. The arguments before us have covered a very wide field. The principal argument addressed on behalf of the appellant has been that if it is found that the grants of the years 1800 and 1801 were really grants in inam, the subsequent permanent settlement under Regulation XXV of 1802 would not affect the real nature of the grants. It was urged that what Regulation XXV of 1802 purported to effect was only to settle the peishkush that was payable and did not affect the real title to the property. The original tenure, according to Mr. Vedantachari for the appellant, was created by the two grants, and no proceeding under the said Regulation would alter that nature. Special emphasis was laid by the learned Counsel on the term employed in the grants that it was a gift and the creation of greater rights in the properties so granted.
14. The contentions of the respondent, on the other hand, pointed out that though the Poligar was relieved of his obligations under the terms of the earlier tenure to police the area under his control even before 1800, following the Poligar Rebellion the Palayam tenure itself was not altered till proceedings were started under Regulation XXV of 1802. Any grant that was made before the settlement under this Regulation must necessarily be taken as the Palayam tenure under which the Poligar held his other properties. In particular, it was claimed that the obligation of the Poligar to pay what was due to the Company and to hold and enjoy the balance for himself was no different from Palayam tenure. It was also claimed that the grant of a territory as distinct from a village or villages, which was what was intended under the grant of 1801, would take the case out of the scope of Section 3(2)(d) of the Estates Land Act. It was lastly contended that even assuming that the grants had the incidents of grants in inam, the failure to object to the proceedings under Regulation XXV of 1802, which ensured fixity of assessment and the creation of a tenure, cannot be rectified at this distance of time. If the estate was then permanently settled, it became a permanently settled estate within the meaning of Section 2(2)(a), and there was no scope for invoking Section 3(2)(d) of the Estates Land Act.
15. It seems reasonable to hold that a grant of this kind which was made several decades back must necessarily receive its interpretation in the light of the surrounding circumstances and contemporaneous events that were operative and that led to the grants. We have set out in broad detail the reasons that led to these grants. Following upon the passing of Regulation XXV of 1802, a Special Commission was appointed for the purpose of effecting a permanent settlement. This Special Commission paid particular attention to the case of the Poligars, and one of the purposes of the permanent settlement was, in the words of the Special Commission:
The absolute suppression of the Military power of the Poligars, and on the substitution of a pecuniary tribute more proportionate than the ordinary peishkush to the resources of the poligar countries and more adequate to the public demand for defraying the expenses of general protection and Government.
In paragraph 30 of the Report, the Commission state:
The eleven pollams of Ettiapore, etc., have not been subjected to the immediate management of British Officers, the former peishkush paid by those Poligars being compared with their computed resources appears to have been as low as 10 per cent. and in no instance to have exceeded 33 per cent. The permanent assessment of those Pollams proposed by us is with few exceptions less than the peishkush settled or the revenue collected by the Collector in the year 1800 : that which we recommend for the large pollams varies in its proportion to the computed resources from 54 to 57 per cent....
Dealing with the forfeited Palayam of Panchalankurichi, the Report said:.It further pleased your Lordship in Council to direct that the Pollams of Panchalankurichi...should be declared to be for ever forfeited by the families of the late Poligars; and that the lands should be divided for the purpose of conferring a distinguished reward and a perpetual mark of public favour of the Poligar of Ettiapore...for their particular good conduct, fidelity and assistance during the late rebellion. According to that intention, the lands of Panchalankurichi with the exception of two Mahanams have been transferred to the Poligar of Ettiapore and incorporated in his zamindari....
Apparently, the Special Commission thought that the transfer of the forfeited palayams in the above manner was intended on the part of the Government more with a view to
the expediency of the arrangement with respect to the management of those pollams, than to excite those sentiments of gratitude which ought to be produced by a distinguished mark of public appropriation;
and in order to convince the Poligars of the principles of the Permanent Settlement the Special Commission suggested that
a portion of the pecuniary advantage to be derived from the confiscation of the rebellious pollams should be converted to a substantive and honourable reward of allegiance.
In this view, in so far as Panchalankurichi was concerned, the Special Commission advised that
it is extremely advisable to reduce the assessment to be imposed on the forfeited lands, and to commence the system of permanent revenue in the southern countries, by transmitting to the Poligars and to their descendants a memorable example of public justice in the punishment of rebellion, contrasted with that of gratuitous generosity in the reward of fidelity.
It also appears from the enclosure to the Report of the Special Commission, that, while the jumma proposed in respect of Ettayapuram palayam was fixed at 55 per cent, of the estimated revenue, in the case of Panchalankurichi and other sequestered palayams, this jumma was fixed at 30 per cent. It is this circumstance upon which a great amount of reliance has been placed by the learned Counsel for the appellant in support of his argument, that the favourable treatment of the Panchalankurichi lands in the assessment of peishcush connotes a grant in inam.
16. Leaving tins aspect of the matter for the present, we may deal with the argument, that notwithstanding the permanent settlement effected under Regulation XXV of 1802, it is the earlier tenure created by the documents of grant that still govern these 88 villages, and that they stand unaffected by the Permanent Settlement. We have been referred to certain decisions in support of this argument which we shall now proceed to examine.
17. The Collector of Trichinopoly v. Lekkamani , dealt with the palayam of Marungapuri. This palayam was not permanently settled. The Judicial Committee of the Privy Council held that Regulation XXV of 1802 did not create new rights in the owners of the lands not permanently assessed or take away from them any rights which they may have had and that it merely vested in zamindars a hereditary right at a fixed revenue upon the conclusion of the permanent assessment with them. In that case, the question that arose was whether a palayam was hereditary, though not permanently settled; and the contention of the Government that the palayam being unsettled, after the death of the late zamindar the right to appoint a successor vested in the Government, was negatived. Dealing with the recitals contained in the Preamble to Regulation XXV of 1802 the Privy Council observed:
The language of the recital applied as much to the zamindars in their lifetime as it did to the heirs of zamindars upon their deaths. If the words were to have the unlimited construction and effect contended for, the Regulation would have justified Government in depriving or dispossessing the deceased poligar in his lifetime, and in transferring the zamindari to a new holder, to the same extent as it would have justified them in dispossessing his heirs after his death.
18. Explaining the Privy Council decision, the Madras High Court said in Narayana v. Chengalamma I.L.R. (1886) Mad. 1:
The matter in contest in that case was mainly the character of the tenure as heritable property though with this difference, viz., that the contest was then between the Crown and the heir at law, and that there was an express appointment by Government to divert the estate from the ordinary course of descent....
The learned Judge points out:
It has been repeatedly held with reference to ancient palayams and zamindaris brought under the permanent settlement that such settlement only changed a precarious tenure into permanent property and a varying assessment into a fixed demand and did not otherwise alter the incidents of the estates either in regard to their mode of descent or partibility as evidenced by family usage.
These two decisions do not however appear to touch the point in issue before us It is true that they laid down the limits of a permanent settlement under Regulation XXV of 1802 and confirmed the earlier decisions that the incidents of family usage regarding heritability stood unaffected by the Permanent Settlement.
19. The decision in Secretary of State for India v. Raja of Venkatagiri , is more to the point. In that case, the sannad had been issued to the zamindar in which a reservation was made in favour of the Government with regard to the revenue derived from salt and saltpetre and certain other subjects. But no mention was made of lakhiraj or inam lands. It also appeared that the assessment had been fixed on the whole of the zamindari, irrespective of the assets derived from each particular unit of property within it. Under Regulation XXV of 1802, however, the Government was entitled to reserve to itself certain items of revenue including lakhiraj or inam lands. The proceedings that led to the issue of the sannad to the Raja of Venkatagiri were not however under this Regulation. Later, when the Raja of Venkatagiri resumed such inam lands within the ambit of his estate, the Government attempted to impose additional revenue thereon, relying upon Section 4 of Regulation XXV of 1802. Their Lordships of the Privy Council concluded that when the assessment had been fixed taking the whole zamindari into consideration on the basis of the arrangements which were entirely different from those provided in Section 4 of the Regulation, both the assessment and the sannad were outside the Regulation. Their Lordships emphasised that the sannad was effective from a date anterior to the passing of the Regulation itself and accordingly stood unaffected by the Regulation. This decision would certainly be of great value to the appellant's contention, if it can once be established that the grants made in the present case were of a character entirely different from a palayarn or zamindari tenure.
20. In Sri Raja Satrucharla Jagannadha Razu v. Sri Raja Satrucharla Ramabhadra Razu , the Merangi Zamindari was formerely held on military tenure, under the Zamindar of Vizianagaram. The question that arose was whether by reason of the subsequent dealings with the zamindari, the nature and terms of the grant under which it was held after 1802, the original impartible character of the estate, even if that should be assumed to have existed, was intended to be continued after the grant of the sannad subsequent to the Permanent Settlement. It would appear that originally the zamindari was held under military tenure from the Raja of Jeypore. Later it became part of the Vizianagram Zamindari by reason of conquest. The grant of the year 1803 was in the ordinary nature of the grants that were made following the Permanent Settlement. Subsequently thereto, the estate came to the possession of the Government having been purchased in public sale for payment of a debt due by the zamindar. The Dewan of the former Zamindar, who had proferred valuable services to the Government, was offered a pecuniary reward, but the Diwan prayed that instead of a pecuniary reward to him, the new grant of the zamindari might be made in the usual terms of a sannad-in-milkiyat-i-istimnari. As usual, a clause in the sannad, conained, a covenant that the grantee was authorised and empowered to hold in perpetuity 'to your heirs, successors, and assigns, at the permanent assessment herein, named, the 'zamindari' of Merangi'. The question that arose was whether the estate continued to possess the character of impartibility, which it was assumed to have had when the earlier grant had been burdened with the performance of military services. Their Lordships of the Privy Council took the view that there was nothing in the circumstances under which this grant was made to lead to the inference that the Government had in view in making this new grant the creation of an impartible zamindari as an exception to the ordinary rule of succession under the Hindu Law. This decision serves to establish that by reason of a re-grant, which the Government was entitled to make, the original incidents attaching to the estate may become altered, and that it is not axiomatic that in every case the terms of the original grant alone would govern. Learned Counsel for the appellant referred to Kalahastheeswaraswami Temple v. State of Madras (1954) 1 M.L.J. 258, in support of his claim that a new title cannot be deemed to be created by subsequent transactions. That however was a special case where the village of Kalahasthi had been granted in inam to the temple in 1791-92 by the Raja of Kalahasthi. When the zamindari of Kalahasthi was abolished by Act XXVI of 1948, the State notified the village of Kalahasthi as a zamindari estate, and the validity of that notification came to be examined. Reliance was placed by the State in support of its stand that since this was a portion of a permanently settled estate, which was separately registered in the office of the Collector falling under Section 3(2)(b) of the Estates Land Act, it was a zamindari estate. Venkatarama Iyer, J. held that the separate registry and the assessment to separate peishcush were under the provisions of Act I of 1876, which really gave effect to one of the clauses of Regulation XXV of 1802, under which transfers made by proprietors of permanently settled estates could, with the consent of the Government, be registered in the office of the Collector. Unless that was done, the entire estate would be liable to the payment of the peishcush. These provisions were intended to save the rights of the Government with regard to revenue. The conclusion reached was that Act I of 1876 did not confer on the alienee any new title but only recognised a pre-existing right providing, however, for the grant of relief in the matter of liability to pay the revenue. That being the limited scope of Act I of 1876, the learned Judge held that the character of the village of Kalahasthi by the grant in inam to the temple could not be altered by any proceeding under that Act. It is obvious that this decision is of only limited application and does not throw any light upon the dispute in the present appeals.
21. In the Tanjore Palace Estate case : AIR1918Mad435 , the question arose whether the re-grant by the British Government of a large number of villages was of the nature of a grant in inam. The villages originally formed part of the territories of the Raja of Tanjore ceded to the East India Company in 1799. The Company however did not exercise its right of collecting revenue from the villages and after the death of the Raja his territories were taken possession of on behalf of the Crown as an act of State. Thereafter, these villages became the property of the Government, and some years later they were granted as a matter of grace to the heirs of the late Raja. Wallis C.J., delivering the main opinion of the Full Bench observed:
The grant now in question appears to have been commonly spoken of as a mokhasa grant and though it cannot be said to have been granted on what is understood as mokhasa tenure, the use of the word goes to show that it was regarded as an inam of a dignified character. There was no distinctive word for a peculiar inam of this kind, and it was probably thought better to use the word mokhasa though not strictly applicable rather than to describe the grantees merely as inamdars, a term which includes large numbers of petty grantees in very humble circumstances. There is, in my opinion, no sufficient ground for supposing that it was intended to exclude from the operation of Section 3(2)(d) grants which were irresumable, as the fact that they were irresumable would not be a ground for excluding them, having regard to the policy of the Act.
Sadasiva Iyer, J., in expressing a concurring opinion, referred to the earlier decision to which he was a party, which was overruled by the decision under citation. He said:
No doubt, the word 'inam' means 'gift' or 'benefaction' in the widest and most popular sense of that Arabic term which has passed particularly into every one of the Veranacular languages of India. It is a gift by a superior to an inferior and is applied in popular language to any gift, whether of moveable or immoveable and of however petty a value. But it has also got several restricted meanings varying in different parts of India.
It is thus clear that when a Madras Statute uses the word inam, it does not singify a gift of whatever kind of property by a superior individual of whatever status to an inferior. Some restriction of the above very wide general significance being assumed... Mr. Justice Napier's opinion was that the legislature when talking of grants 'in inam' could have had in its contemplation only grants in the subject of which the Government retained some reversionary interest to be enforced in certain contingencies.
He finally agreed with the opinion of the learned Chief Justice that the mokhasa grant in question, in which the Government had reserved no reversionary interest, was not intended to be excluded from the definition contained in Section 3(2)(d) of the Act. This decision deals obviously with a case of a very peculiar kind, where what were originally private lands of the Raja of Tanjore came to be re-granted under certain special circumstances. That, that was the case was made clear by the decision of the Privy Council in Secretary of State v. Thinnappa Chettiar (1943) 2 M.L.J. 382 , where their Lordships refer to the fact that it was not so much a grant that was made in favour of the heirs of the Raja but a restoration of the rights of the previous owners. The following passage from that judgment is instructive:
Their Lordships must assume that he held the estate as its absolute owner with all the rights of enjoyment appertaining to such ownership. It was while the property was being thus held that it was seized with the Raj by the company; and some time after, the private estate was restored to the heirs of the last Raja in its entirety....
In the order passed by the Government of Madras under this instruction, on 21st August, 1862, already noted, the Madras Government says that the decision of the Government of India is to the effect that 'the whole of the lands are to be relinquished in favour of the heirs of the late Raja' The word 'relinquished' is significant. This decision can have only one meaning, that is, that the private property was restored to the heirs of the late Raja in all its integrity and without reservation of any kind of right in favour of the Madras Government. The grant was an irresumable inam.
In dealing with the question whether the villages were estates within the meaning of the Estates Land Act, they observed:
It is said that the grantees of 1882 have been held in Sundaram Ayyar v. Ramachandra Iyer : AIR1918Mad435 , to have been given the land revenue alone without the kudiwaram rights. Their Lordships are not called upon to express an opinion whether the villages are 'estates' within the meaning of the Madras Estates Land Act, and they consider that their proper course is to construe the grant of 1882 upon the materials to which they have referred.... Having regard to the nature of the grant of 1882, their Lordships think that the Tanjore Palace Estate, if treated as an inam, must be treated as a peculiar kind of inam-their Lordships observed that the word inam is no where used in the grant and the estate appears commonly to have been spoken of as a mokhasa which it is not and that under it, amongst the rights obtained by the grantees were included rights which entitled them to use the water for purposes of free irrigation from the sources from which it used to be taken before the grant.
Later they observed:
It is true that there was no express agreement at the time of the grant not to levy any rent on the estate, but having regard to the intention of the Government to restore the estate to the heirs of the Raja in all its integrity as an act of equity and policy, the decision not to settle any jumma should be understood as an implied agreement not to levy any quit-rent on the estate. There is no evidence that the estate was subject to assessment prior to the grant. No jodi or quit-rent has been levied since.... It means that jama was not fixed at the time of the grant, and nothing more. No jama was settled, for the obvious reason that the Government, while restoring the estate to the Raja's heirs as an act of grace, did not wish to detract from the grant by levying any rent....
These observations would perhaps be relevant when we come to consider the fixation of the jama in respect of the villages now in dispute.
22. The conclusion that we reach on a consideration of the above cases is that while normally the Permanent Settlement did not purport to interfere with the character of the estate in so far as the title thereto was concerned, it was not incompetent to the Government when it chose to make a grant to impose any special terms and conditions. While such proceedings as the Permanent Settlement would not interfere with the rights of the holder of the estate vis-a-vis the members of his family, the mutual obligations between the State as the grantor and of the holder of the estate as the grantee must necessarily be governed by the terms of the grant and the permanent settlement. In the present case, the grant of the year 1801, portions of which we have extracted earlier, is put forward as a grant in inam, and it is claimed that notwithstanding the subsequent permanet settlement it must be deemed to continue to be operative as a grant in inam. It is this contention that has to be examined.
23. In so far as the present appeals are concerned, the claim is that these villages form inam estates within the meaning of Section 2(7) of Act XXVI of 1948. Under this section, an 'inam estate' is defined to mean
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 2(16) also defines a ' zamindari estate' to mean
an estate within the meaning of Section 3, Clause (2)(a) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, Clause (2)(e) or (2)(b) of that Act' or an estate within the meaning of Section 3, Clause (2)(6) or (a)(c) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, Clause (2)(e) of that Act.
It is clear from these two definitions that in so far as 'zamindari estate' as defined in Section 2(16) is concerned, it does not take in inam estates which would come within the scope of Section 3(2)(d). The two definitions would appear to be mutually exclusive. The intention of the Abolition Act was to provide different modes of computing compensation payable for zamindari estates and inam estates. If the grants in these two cases should, therefore, fall within the description contained in Section 3(2)(d) of the Estates Land Act, they would be taken out of Section 2(16) and brought within the scope of Section 2(7) of Act XXVI of 1948. It follows that the question we have to consider is whether the grants would come within the scope of Section 3(2)(d) of the Estates Land Act as it stood prior to its amendment in 1936.
24. The learned Advocate-General claimed that at the time of the grant, Panchalankurichi was an unsettled palayam. The terms of the document of grant pertaining to the 87 villages did not purport to establish or afford any positive evidence of a change of tenure, as it only stated that the possession of these villages had been granted to the Ettayapuram Palayakar to be enjoyed by him, but subject to payment of what was due to the Company. There was accordingly the stipulation that the Palayakar should pay what was due to the company and that, in the absence of any settlement of the jumma at that time, must necessarily refer to what was paid formerly in respect of those villages by the previous Palayakar, or what the Government fixed thereafter. If that is the interpretation to be placed upon the terms of this grant, there is nothing to show that the palayam tenure (notwithstanding that the attendant requirement of military service had been discontinued) ceased to be operative. According to the learned Advocate-General, to constitute an inam, the grant should be either rentfree or on a fixed favourable rent. There is nothing in the document, to show that the grant was made on such conditions relating to rent. On the other hand, there was stipulation that what was due should be paid by the grantee. More than all, it was claimed that what was contemplated by this document was only an addition to the Palayam which constituted the Ettayapuram Zamindari; if it was that zamindari that was to be enlarged to the advantage of the zamindar, there is no justification for inferring a grant in the nature of an inam.
25. We have already referred to the Special Commission's Report. It was the finding of the peishcush Collector who was appointed to settle the jumma payable in respect of all these palayams that these palayams had formerly been paying jumma varying between 10 and 33 per cent, of the revenue derivable from these palayams. His view was that they were all considerably under-assessed and he proposed that the jumma should be fixed at as high as 55 per cent, or so and brought into line with the other palayams in this regard. The report of the Special Commission clearly indicate that several factors were taken into consideration in fixing the jumma of the Panchalankurichi area incorporated in Ettayapuram Zamindari. In paragraph 46 of the Report of the Special Commission is set out:
The convulsions in the rebellious pollams have prevented the Collector from completing the information respecting the value of the lands in the satisfactory mode observed in the other pollams. The valuation of Panchalankurichi is stated by Mr. Inshington for the year 1802 at Star Pagodas; 23,477; of which the former peishcush amounted to Star Pagodas 6,208. The increased peishcush,. recommended by Mr. Powney amounted to Star Pagodas 14,111; and that which is now recommended by Mr. Inshington in the actual state of the lands of Panchalankurichi amounts to Star Pagodas. 12,185 and bears the proportion of 57.per cent, to the valuation of the gross revenues.
The permanent jumma proposed by Mr. Inshington for the pollams of Panchalankurichi...will, in his judgment, secure the objects intended by the distribution of those lands; but your Lordships in Council will observe that Mr. Inshington has seen, the havoc occasioned by the sword, and by the devastation of contending bodies in arms throughout these villages; and he knows also that many of the inhabitants who settled themselves for their satisfaction in the Circar lands at that period, are never likely to return to their original villages.
If the object of your Lordship in Council, in distributing the lands of the forfeited pollams, appeared to be limited to the assessment of a reasonable jumma, we should concur in the moderate sum recommended by the Collector; but under the peculiar considerations which attach to the case, we are of opinion that it is extremely advisable to reduce the assessment to be imposed on the forfeited lands, and to commence the system of permanent revenue in the southern countries, by transmitting to the Poligars and to their descendants a memorable example of public justice in the punishment of rebellion, contrasted with that of gratuitous generosity in the reward of fidelity.
On these grounds, we recommend that the permanent assessment on the distributed lands of Panchalankurichi...be fixed in the proportion of 30 per cent, to the gross valuation of 1802.
26. The above extracts give unmistakable indication that at the time of the proposed settlement it was found that a large number of tenants of Panchalankurichi village had left those villages and had settled down in the Circar villages and were never likely to return. The previous rebellion had so disorganised the cultivation of the area that the Special Commission was not prepared to agree 'that the actual state of the lands in Panchalankurichi would justify fixing of such high percentage as 57 as the jumma.' They no doubt took into consideration the services rendered by the Ettayapuram Poligar, and in so far as the reward for his services was concerned, it seems reasonable to infer that the large addition to his landed property that was contemplated by the addition of these villages to his zamindari fully met with that consideration. The fixation of jumma at 30 per cent, does not appear to have been founded upon those considerations. Even if the grant had been made only on zamindari tenure, there is no doubt, that it would yet have been a reward for his meritorious services. The fixation of jumma at a lower figure was clearly governed primarily by the condition of the lands of Panchalankurichi and the exodus of the tenantry therefrom. We are unable to agree with the argument of Mr. Vedantachari, for the appellant that the reduction of the jumma from 57 per cent, to 30 per cent, amounted to a favourable rate of rent. While it was no doubt favourable in the sense that as against the original proposal of 57 per cent., the jumma was fixed at 30 per cent, of the normal revenue, it is clear that even the rent as fixed on the basis 0/30 per cent, which was 7,042 Star Pagodas, was an enhancement of the former peishcush, which was only 6,208. Viewed from this angle that the previous peishcush was not reduced, it is exceedingly doubtful if any inference of an intention to confer upon the Zamindar of Ettayapuram the Panchalankurichi lands on any favourable terms of rent in the sense that such a grant would amount to an inam, can at all be made.
We have examined the position as it emerged after the permanent settlement of the entire Ettayapuram zamindari including the additions made to it by the grants of 1801. Obviously the permanent settlement did not itself operate as a grant, and the nature of the grant was left unaffected by the permanent settlement. The grant contemplated the payment of what was lawfully due to the Government, the quantification of that sum as a permanent measure on the basis of the special considerations that applied to the villages of the Panchalankurichi palayman at a reduced ipercentage did not convert the original grant into an inam grant.
27. The point raised by the learned Advocate-General, that in order to constitute a grant in inam there should either be a grant free of the payment of any rent or on favourable terms of rent, appears to have considerable force. In the absence of either of these two features, it is claimed that there cannot be a grant in inam. This argument derives support from Lakskmanna v. Venkateswarlu . Their Lordships of the Privy Council observed:
cof 'Arabic' origin which means reward or favour. The word came into use after the Muhammadan conquest. In ancient days, grants of land or revenue, were made by Hindu Sovereigns to individuals, particular families, or communities for various purposes, or to religious institutions for their upkeep. These were known as 'manyams'. The practice was continued by the Muhammadan Rulers and later, by the East India Company also, till it was discontinued in the earlier years of the 19th Century, as a result of instructions received from the Directors of the Company. Thence-forward, gifts of land were granted only in special cases, the ordinary cases being provided for by the grant of money pensions.
Inams in the Presidency of Madras are of two kinds : first, those where the proprietary right in the soil and the right to the Government share of the revenue derivable from land coalesce in the same individual, and secondly, those where the proprietary or occupancy right is vested in one or more individuals, whilst the Government share of the revenue has been granted to another.
They refer also the 'Land Systems of British India' by Baden Powell and the well-known Report of Mr. Blair.
28. In Sellappa Goundon v. Baskaran : (1960)2MLJ363 , the learned Judges had to consider as to what constituted an inam. They referred to the Privy Council decision cited above and observed:
Can it be said that the grant by the Raja of Mysore in 1760 which included Komarapalayam was an inam? It was no doubt rent-free. But the essential element of an inam, namely, a benefaction, is lacking. The grant, whether it be of the land, its assessment or both, was one made in consideration of a payment by the grantee. It cannot be held to be an inam. The circumstance, that the grant was treated as an inam at the time of the inam settlement proceedings and title deeds were issued on the basis, cannot affect the original character of the grant.
They refer in particular to Sam v. Ramalinga Mudaliar : (1916)30MLJ600 , where the word ' inam' was taken to mean a present or gift either to an individual or for public purpose and that an inam implied a grant of land with a remission, partial or total, of the revenue.
29. It is unnecessary to refer to any other decided cases in this connection. There is no doubt that in order to constitute a grant in inam, the mere use of the expression 'inam' or 'gift' is wholly inconclusive, unless, along with that expression, we can find an indication that the grantee was to enjoy the land either totally free of rent or to have partial remission of the Government share of the revenue. It is the contention of the learned Advocate-General that far from such being the case, the intention of the grantor, the then Government, was that the grantee should pay what was due to the Company that is, what was payable to the Government as its share of the revenue derivable from the lands.
30. In answer to this contention, Mr. Vedantachari, for the appellant, contended that the two parts of a grant, viz., the grant itself and the resultant favourable terms with regard to the rent, should be taken separately from each other. According to him, here is the case of a grant made to a person who but for the grant had no right to the property previously. The grant of the year 1801 refers to a gift and confers permanent possession and enjoyment of the property in the grantee. That is absolute in its connotation. Even taking the flatter part of the document, where the grantee is under an obligation to pay what is due to the Company, the further expression 'you shall hold and enjoy the balance for yourself' amounts, according to the learned Counsel, to a share of the land revenue being granted in inam. We are unable to agree that such an interpretation of the document of the grant would at all be reasonable in the light of the two decisions that we have referred to earlier. If such an argument is accepted, there would appear to be no distinction whatsoever between a grant of an estate on zamindari tenure and a grant in inam. Even in the case of the former type of grant, the result is certainly the grant of something to a person who was not entitled to it previously, and any such tenure obviously grants to that person a part of the Government revenue, the peishcush payable by the holder of such an estate being only a proportion of the revenue which the Government would otherwise derive from the lands. If this argument is accepted, one can very well say that even in the case of a zamindari grant, there is this incident of a favourable term of rent imposed on the estate in question. We are unable to accept this argument. The result accordingly is that in order to constitute a grant in inam, there must be a clear indication that at the time of the grant, the grantor intended to grant either the land free of the payment of any peishcush or on favourable terms with regard to the peishcush.
31. The circumstance that the peishcush in respect of Panchalankurichi villages was fixed at 30 per cent, as against 55 per cent, which was adopted in the case of Ettayapur Zamindari does not lead to the conclusion that the reduction was indicative of the intention of the grantor to make a grant in inam. We have extracted portions from the Report of the Special Commission. The fixation of the peishcush in respect of the different villages which were comprised in the various palayams was with a view to permanent settlement being effected with the holders of those estates. The mere circumstance that in calculating the land revenue which should be fixed as part of the settlement proceedings, different percentages were adopted in the case of different villages cannot be taken to result in the creation of an inam grant in the case of such of those villages where the percentage was fixed at a lower figure. We must emphasise that there was no rigid and inviolate rule with regard to the fixation of the percentage, and each village or each area appears to have been differently dealt with according to its then condition.
32. On the same day as that on which Regulation XXV of 1802 was passed, that is,, on the 13th July, 1802, Regulation XXXI of 1802 was also passed. This was intended for examining the validity of titles of persons holding or claiming to hold-lands exempted from the payment of revenue under grants not being Badshahi or royal grants. The Preamble to this Regulation notices that:
whereas the permanent settlement of the land-tax has been made exclusive of alienated lands; of every description; it is expedient that rules should be enacted for the better ascertainment of the titles of persons holding, or claiming to hold, lands exempted from the payment of revenue to Government under grants not being Badshahi or royal, and for fixing an assessment on such lands of that description as may become liable to pay revenue to Government....
Reference is made to this Regulation XXXI of 1802 only to emphasise the fact that even at that time the then Government was fully aware of the existence of inamsr and while permanent settlement was in process or in contemplation, they took steps, to investigate the validity of such inam grants. They were further aware that in the proceedings for the permanent settlement of estates, such lands were not taken into consideration in fixing the permanent peishcush and this Regulation sought to bring under assessment such inam grants which were not supported by a valid title or had become disassociated with the purposes for which they were granted. It would be remembered that the grants upon which the appellant relies in the present appeals are those of the years 1800 and 1801. Had it been the intention of the Government and had it been understood by the parties that those grants were grants in inam, bringing these lands within the scope of the permanent settlement, despite the passing of Regulation XXXI of 1802, appears to be wholly inexplicable. Indeed, the Judicial Committee of the Privy Council in explaining the scope of the permanent settlement in Probhat Chandra Barua v. King Emperor , observed:
The language used in Regulation I, Article VI, does not, in their Lordships' opinion, mean anything other than : 'You have in the past been liable to have the amount of the jama increased according to the actual produce of the estate increased; to enable the Government to obtain this you have been subjected to frequent investigation to ascertain the actual produce and you have even been deprived of the management of your estates. All this shall cease. You shall have fixity of payment and fixity of tenure. If you improve the revenue of your zamindari, you shall enjoy the fruits of your improvements without fear of the Government claiming that because the revenue produced by the estate has increased the payment you make to Government as condition of holding that estate shall be increased also.
The Regulation which their Lordships had to consider was the Permanent Settlement Regulation, Bengal Regulation 1 of 1793, which also sought to effect a permanent settlement of the estates. Clearly it is by reason of the permanent settlement which was effected and the sannad that was granted to the Zamindar of Ettayapur as a result of that settlement in 1803, the entire estate, including the Panchalankurichi villages, was brought within the scope of that settlement, and no claim or objection was at any time advanced that the Panchalankurichi villages were covered by a grant which was in the nature of an inam. Though, in the light of the decisions, the character of the grant made in 1800 and 1801 would certainly not be affected by the subsequent settlement, we refer to this feature only to point out that in the context of the then prevailing state of things, neither party, either the grantor or the grantee, understood those particular grants to be of the nature of an inam.
33. We may at this stage refer to another decision of the Privy Council in Parthasarathi Appa Rao v. Bommadevara Satyanarayana . In that case, certain zamindari lands were acquired by the Government under the Land Acquisition Act. In lieu of compensation to which the landholder was entitled, other Government lands in another district, of which lands he had already acquired ryoti rights, were granted to him on his request. These newly granted lands were entered in the Collector's register as zamindari lands. The landholder leased out these lands and when on the expiry of the lease he sought to recover possession, the lessee claimed that he had acquired permanent rights of occupancy by virtue of the provisions of the Madras Estates Land Act. The question arose whether the lands in question could be regarded as part of a permanently settled estate. Their Lordships held:
It is obvious that when in the hands of the Government, they were not so. What then has made them acquire the character of a settled estate? The appellant's counsel argued that the effect of the transaction detailed above was to make the lands an estate settled at a peishcush of Rs. 777. But a settlement must be effected formally and there should be some recorded evidence of it. It seems impossible here to point to anything which has that effect. There is admittedly no sannad dealing with the lands in terms of the article of the Regulations. That in the opinion of the learned District Judge was per se conclusive. It is, however, enough to say that there is nothing to which the appellant can point as making a settlement. There being no document and the matter being left to inference to be drawn from the facts, it would be possible to suggest more than one mode of settlement.
34. Reliance has been placed by the learned Advocate-General upon this decision for the converse proposition, viz., that where in respect of certain lands a permanent settlement was in fact effected under Regulation XXV of 1802, and a sannad granted in 1803, and that position has been acquiesced in for the last century and a half, it is too late in the day for the appellant to claim that the original character of the estate, which, according to him, was a grant in inam, must still prevail. Though the converse of a proposition may not always be necessarily true, the argument of the learned Advocate-General was that having agreed to a permanent settlement with regard to the Panchalankurichi lands the appellant can no longer be heard to claim that the lands were granted in inam. Since we have found that the grants were not in inam, it is really needless to examine the soundness of the contention that even if the grants were inam grants, the subsequent acquiescence in the permanent settlement barred the acceptance of the present claim that what had been permanently settled still continued to be governed by an inam tenure.
35. Learned Counsel for the appellant put forward another argument which was that under Section 3 of the Government Grants Act, Regulation XXV of 1802 was ineffective to destroy the title conferred by the grants of the years 1800 and 1801. We are unable to appreciate this argument because it has riot been the contention that Regulation XXV of 1802 altered the character of the grant of its own force. If what is contended for is that a fetter was placed on the legislative competency of the State Legislature to interfere with the terms of a Crown Grant, the wording of Section 3 of the Government Grants Act does not appear to lead to that inference. What Section 3 lays down is that the provisions of any such grant shall be valid and take effect according to their tenor. This section came to be considered by the Judicial Committee in Thakur Jagannath Baksh Singh v. The United Provinces (1946) 2 M.L.J. 29 : (1946) F.L.J. 88: 1946 L.R. 73 IndAp 123 : 1946 F.C.R. 111 , where their Lordships laid down:
If, therefore, it be found that the subject-matter of Crown Grant is within the competence of a Provincial legislature, nothing can prevent that legislature from legislating about it unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally.
The question arose whether a sannad which had been granted by the Crown conferring full proprietary rights, permanent heritable and transferable rights in the estate, confirmed subsequently by the Oudh Estates Act, could not be affected by a subsequent legislation of a Provincial legislature enacted in the United Provinces Tenancy Act, 1939, which sought to consolidate and amend the law relating to agricultural tenancies and other matters connected therewith. Section 3 of the Grown Lands Act, 1895, was relied on in support of this contention. Their Lordships observed with reference to that section:
These general words cannot be read in their apparent generality. The whole Act was intended to settle doubts which had arisen as to the effect of the Trasnfer of Property Act, 1882, and must be read with reference to the general context and could not be construed to extend to the relations between a sannad holder and his tenants. Still less could they be construed to limit the competence of the Provincial Legislature under the Constitution Act.
They also observe:
It is many centuries since the Courts were invited to hold that an Act of Parliament was ultra vires or invalid in law on the ground that it infringed the prerogative of the Crown. So startling a claim as that made in the present case cannot be upheld. That broad and general principle is sufficient to dispose of the claim. No Court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence.
36. This decision of the Privy Council was referred to by their Lordships of the Supreme Court in Maharaj Umeg Singh and Ors. v. The State of Bombay : 2SCR164 . In that case, reliance was placed upon letters of guarantee given by the Dominion Government to the Rulers of Estates subsequent to the agreements of merger, and it was contended that in the face of this guarantee, the State Legislature of Bombay had no legislative competence to enact any legislation depriving the holders of the jagirs of their rights of ownership. Though Section 3 of the Government Grants Act was not specifically relied upon, the arguments addressed were analogous, and their Lordships of the Supreme Court rejected the contention that the legislative compentency of the State Legislature was curtailed in any manner by such covenants contained in the letters of guarantee.
37. The result of the above discussion is accordingly that the grant of the year 1801 covering the 87 villages in question was not a grant in inam. It was as an unsettled palayam that this area, along with the Ettayapuram Zamindari, itself undoubtedly an unsettled palayam, was settled under the Regulation, and this brought the entire area within the scope of Section 3(2)(a) of the Estates Land Act.
38. We must, however, deal separately with the village of Sivagnanapuram, which was granted in 1800. In this case, the sannad however made no mention of any peishcush payable by the zamindar. It is conceded before us that in the permanent settlement proceedings, this village also was taken in as part of the zamindari and permanently settled. The question would then be whether the title created by the grant of the year 1800 was in the nature of an inam. If the underlying implication was that this village was granted rent-free for the reason that no stipulation with regard to rent was contained therein, undoubtedly, it would be a grant in inam. But it seems to us that we cannot ignore the context of the surrounding circumstances. There is no doubt whatsoever that by the date the East India Company had ceased its practice of granting any inams and that fact finds mention even in decided cases. It was not the policy of the East India Company to make grants of inams and that historic fact cannot possibly be ignored in construing this document. The more so when we find that immediately thereafter even this very village was brought within the scope of the permanent settlement. It necessarily follows that the village Sivagnanapuram cannot, therefore, be treated differently from the other 87 villages.
39. In the result, the appeals fail and are dismissed with costs. One set of counsel's fee.
40. One set of counsel's fee.