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Sri Gadadharadoss Bavaji Mahant of Balaji Mutt Vs. Suryanarayana Patnaik and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in56Ind.Cas.92; (1920)38MLJ342
AppellantSri Gadadharadoss Bavaji Mahant of Balaji Mutt
RespondentSuryanarayana Patnaik and ors.
Cases ReferredSivini Appalanarasimhulu v. Murada Sanyasi
Excerpt:
.....section 3(2), (5), (11) - minor inamdar--grantee of lands in permanently settled estate, whether 'land-holder'--'bents, in clause (5), meaning of. - - there is, however, in this case nothing to rebut the presumption recently laid down by the privy council that the grant to the inamdars was a grant of the proprietary right in the suit land including the kudiva-ram as well as the melvaram interest. before coming to the wording of this definition, it is desirable to examine the general scheme of the act, in the light of which the definition in clause v of section 3 (2) must be interpreted, with a view of seeing if it was really the intention of the legislature to apply the provisions of the act as between the inamdar and his tenants, where the land is situated in a permanently settled..........of land in an estate which is not the inamdar's estate but in the estate of the superior landholder. not only then is the construction contended for opposed to the scheme of the act, and the apparent intention of the legislature as i have already endeavoured to show, but it cannot be arrived at without disregarding the definition of ' rent ' which itself has been framed to fit into the general scheme of the act. there is, in my opinion, no sufficient reason for refusing to apply the definition of 'rent 'in clause (11) to the word 'rents' in clause (5), and full effect can be given to that definition by reading the latter part of it as intended to include, as it lays, persons entitled to collect the rents due to the owner of the estate, such as farmers or assignees of such rent.....
Judgment:

John Wallis, C.J.

1. We accept the finding that the cadjan deed, Exhibit A, is not proved. There is, however, in this case nothing to rebut the presumption recently laid down by the Privy Council that the grant to the inamdars was a grant of the proprietary right in the suit land including the Kudiva-ram as well as the Melvaram interest. There is, also, no sufficient reason to interfere with the finding on the second additional issue, assuming it to be material, that the inam in question was created after the permanent settlement of the estate.

2. The suit lands are situated in the village of Thandipuram in the permanently settled Zamindari of Surangi and are held of the Zemindar by the inamdar at a Kattubadi or quit rent of Bo. 15 payable to the Zemindar. If the whole village had been granted, it would itself have constituted an estate within the meaning of the Madras Estates Land Act, as coming within the words 'one or more villages' of a permanently settled estate in Section 3 (2) (e), and the Act would have been applicable to Ryots holding under the inamdar. It has, however, been contended before us that although the lands, which are only part of a village, are not made an estate in themselves by virtue of this clause, the Act is rendered applicable because the inamdar is 'a land holder' within the meaning of clause V. Before coming to the wording of this definition, it is desirable to examine the general scheme of the Act, in the light of which the definition in clause V of Section 3 (2) must be interpreted, with a view of seeing if it was really the intention of the Legislature to apply the provisions of the Act as between the inamdar and his tenants, where the land is situated in a permanently settled estate and consists of any part of a village and the inamdar is the owner of the Kudivaram as well as the Melvaram. Now the Act is called the Madras Estates Land Act and its general scope is limited by the definition of estate in Section 3(2), That definition is reproduced, with one important modification, from Madras Acts XI of 1894 and IV of 1897 where it had been found convenient to answer the purposes of these Acts; but, whereas Clause (d) in that Act ran any village of which the grant was made or had been confirmed by the British Government,' this appears in the present Act as 'any village of which the land revenue alone has been granted in inam to a person not owning the Kudivaram thereof, provided that the grant has been made, confirmed or recognised by the British Government or any separated part of such village,' Therefore, as regards inams outside the large estates coming under Clauses (a), (6) and (c), it is clear that the Legislature did not wish the Act to apply between the inamdar and his tenants where the inamdar owned the Kudivaram as well as the Melvaram, or where land was only part of a village unless it had been separated from the rest of the village. This being the policy of the Act as regards inams outside large estates as defined in Clauses (a), (6) and (c), the next question is whether it was the intention of the Legislature that the Act should apply to such inams when the lands were situated within these large estates. Looking at the matter as between the inamdar and his tenants, there seems no strong reason for making the Act inapplicable where the quit rent is payable directly to the Government, and applicable where it is payable to the Zemindar or Poligar as in Clauses (a), (b) and (c). It is prima facie unlikely that the Legislature should have intended to apply a different rule in these two cases and if it did, it would have so provided expressly. In one class of cases it has so expressly provided, because Clause (e) constitutes any portion of one of the larger estates dealt with in Clauses (a), (b) and (c), an estate of itself within an estate for the purposes of the Act where it consists of one or more villages and is held on a permanent under-tenure, whether the tenure holder or inamdar owns the Kudivaram or not. The Legislature having thus expressly made the Act apply as between the inamdar and his tenants in the case of certain inams in these large estates by virtue of the definition in Clause (e), the next question is ' whether it intended to nullify that definition and render it altogether nugatory by adopting a few lines lower down a definition of 'land-holder' wide enough in terms to include holders of inams and other under-tenures in the larger estates, where the inam in question did not consist of one or more villages, but as here of a lesser extent. The onus of showing that the definition of land-holder had this extraordinary result is strongly on those who affirm it.

3. To come now to the definition itself, 'land-holder' is defined in the first part of clause V as meaning 'a person who owns an estate or part thereof'. Stopping here, an inamdar who holds under a Zemindar subject to the payment of quit rent to him is not the owner of the inam land in the ordinary legal meaning of the word owner, as held in Raja of Vizianagarm V. Collector of Vizagapatam 25 Ind. Cas. 780 : 38 M.K 1128 : 27 M.L.J. 278 : (1914) M.W.N. 610 : L.W. 635 where the authorities are cited. So long as a full owner in making a grant reserves an interest to himself, as by way of rent, he and his successors continue to be the owners, no matter how insignificant may be the interest he reserves for himself. There is no reason for attributing a different meaning to the term owning an estate in the present definition. No doubt where an inam is an, estate within an estate by virtue of the definition in Clauses (c), (d), Section 3 (2), as the object of the inclusion is to apply the Act between the inamdar and his tenants, the inamdar must be held to be the land-holder for the purposes of the Act, but that is, not because he comes within the definition as owning an estate, but because it would be repugnant to the subject or context to apply the strict definition of 'land-holder' to such a case,

4. The main contention, however, was that in a case such as the present the inamdar comes within the definition of land-holder, not because he is a person 'owning an estate or part thereof, 'but because the clause proceeds to include in the term land holder 'every person entitled to collect the rents of the whole or a portion of the estate by virtue of any transfer from the owner or his predecessor- in-title or of any order of a competent Court or of any provision at law.' What are to be collected here are ''the rents of the whole or any portion of the estate' and rent is defined in Clause (it) as meaning 'whatever is lawfully payable in money or in kind or in both to a land-holder for the use or occupation of land in his estate for the purpose of agriculture.' It is a payment to a land-holder for the use or occupation of land in his estate. and cannot, therefore, include a payment by tenants to an inamdar for use and occupation of land in an estate which is not the inamdar's estate but in the estate of the superior landholder. Not only then is the construction contended for opposed to the scheme of the Act, and the apparent intention of the Legislature as I have already endeavoured to show, but it cannot be arrived at without disregarding the definition of ' rent ' which itself has been framed to fit into the general scheme of the Act. There is, in my opinion, no sufficient reason for refusing to apply the definition of 'rent 'in Clause (11) to the word 'rents' in Clause (5), and full effect can be given to that definition by reading the latter part of it as intended to include, as it lays, persons entitled to collect the rents due to the owner of the estate, such as farmers or assignees of such rent by way of mortgage, etc. Whatever construction foe put upon it, it affords, in my opinion, no justification for bringing inams, such as that with which we are dealing within the operation of the Act contrary to the intention of the Legislature as sufficiently indicated in the definitions of 'estate,' 'rent' and 'ryot' which are correlative and must be read together.

5. The contention now put forward is no doubt supported by the decision in Sivini Appalanarasimhulu v. Murada Sanyasi 17 Ind. Cas. 120 : 38 M.P 33 which has been followed in several cases. In that and the subsequent decisions many of the considerations I have set out were not dealt with and were apparently overlooked. I am unable with great respect to follow them, as I am satisfied that it was not the intention of the Legislature to apply the Act to this class of case?, and it appears to me to be of great importance that an Act of this kind should not be extended by strained construction to oases not contemplated by the Legislature. If oases such as this are to be brought under the Act, it should be by an amendment of the existing Act. For these reasons I agree with the Subordinate Judge and would dismiss this second appeal with costs,

Sadasiva Aiyar, J.

6. I regret that I have the misfortune to differ from my Lord the Chief Justice in this case. I agree that, after the recent decisions of the Privy Council, we must hold that the post settlement grant made to the inamdar (the plaintiff's ancestor) was a grant of both Warams, It is also clear that the inam not being a whole village or part of a permanently settled estate separately registered, the lands themselves do not form an estate within the definition of Section 3, clause 2 (b), (d) or (e) of the Estates Land Act.

7. The decision in this case, therefore, depends solely upon the answer to the question whether an inamdar to whom lands were granted by the Zemindar after the settlement and out of the lands included in the permanently settled estate is a land-holder within the definition of clause 5 of Section 3. If an inamdar can be said to own part of an estate, he clearly comes under the definition of land-holder. If, again, he can be called a person ' entitled to collect the rents of any portion of an estate by virtue of the inam grant (which is clearly a transfer), then also he comes under the definition of land-holder and Section 6 applies in favour of the ryots holding lands under him. Now, the inamdar of a whole village is admittedly a land-holder, because the whole village itself is an estate and he owns it as an inamdar even though he might be paying some Kattubadi or Jodi to the higher owner, the Zemindar. Thus the words 'persons owning part of an estate' in clause 5 of Section 3 admittedly include several cases at least of inamdars also, notwithstanding that their ownership is accompanied by the recognition of a higher owner, the Zemindar, through their payment of Jodi or Kattubadi to the Zemindar. Hence it seems to me that a minor inamdar also, though he may not own a whole village in an estate as part of an estate, does own in the very same sense his inam lands which are undoubtedly part of the permanently settled estate and hence he comes under the definition of land holder even within the first portion of the definition of land holder. If, again, 'rents' in the second portion of the definition mean ' rents and profits,' he is included in the second portion of the definition also, where he usually lets the lands to tenants and obtains rents from his tenants. Some inamdars no doubt would still escape falling under the definition of 'landholder,' that is, those inamdars to whom inams had been granted before the Permanent Settlement without reservation of Kattubadi or Jodi, I, therefore, think that the construction placed by the uniform decisions of this Court on the definition of ' land-holder' does not render altogether nugatory the definition of an 'estate' in clause 2 (e) of Section 3, as it does exclude some inamdars from the provisions of the Act, that is, many pre settlement inamdars. As regards all post-settlement inams, their grants were grants of land out of an estate and such grants cannot prevent those lands from continuing to be part thereof,' that is, part of the estate, whether that part forms a whole village (in which case the inamdar admittedly does own it) or only defined lands not forming a whole village.

8. Again the Madras Estates Land Act came into force in July 1908, It naturally took about 3 years for the question, whether a Dharmila minor inamdar is or is not a 'land-holder', to arise before the High Court for direst decision after contest in a lower Court or Courts, The earliest direst decision on this point I have come across is the one in Civil Revision Petition No. 895 of 1910 dated 9th November 1911, where Abdur Rahim, J., held that a minor Dharmila inamdar is a land-holder.' For more than eight years now, that view has held the ground, Sundara Aiyar, J, and myself followed it in Sivini: Appalanarasimhulu v, Murada Sanyasi 17 Ind. Cas. 120 : 38 M.P 33 and I find that a majority of the Judges of this Court have followed the same opinion. I am, therefore, unwilling to depart from this catena of decisions, especially as it is very difficult to get at the real and final intention of the Legislature from the words of an Act whose language was added to and modified during its long progress through the Legislative Council in various ways, according as the party favourable to the land holder or the party favourable to the tenants got the upper hand in debates from time to time. I would, therefore, allow the appeal and dismiss the suit as the tenants had obtained full occupancy right under Section 6, on the date of this suit. As regards costs, I would give costs in this second appeal to the appellant (3rd defendant), but as Section 6 was not relied on in the Court of the District Munsif, I would order the parties to bear their respective costs in the lower Courts.

9. Result--the appeal is dismissed with costs.


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