M. Natesan, J.
1. The above writ petition relates to the village of Komarapalayam Agraharam, Tiruchengode Taluk, Salem District and challenges the applicability of the Madras Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 to the village in question. The constitutional validity of the Act which was also put in issue has been upheld by us in the judgment in Subbachariar v. State of Madras I.L.R. (1967) Mad. 646 : (1967) 1 M.L.J. 206 just now delivered. It is contended on the merits that the grant in question though called an inam is not an inam, but is an assignment for consideration. From the extract of the Fair Inam Register relating to the village it appears that in the year 1760 Krishna Raja Wadiyar, the Raja of Mysore, granted the village of Jadagapady or Nattapatti, together with twelve hamlets to certain Brahimins, Komarapalayam being one of such hamlets. The grant was not by way of gift pure and simple or benefaction by the Ruler either of the land or any portion of the assessment. A number of Brahmins subscribed and collected a sum of money 50,000 Rajagopala pagodas. Four of them who represented the subscribers paid the amount into the Treasury and obtained a grant of Jagadapady and the twelve hamlets including Komarapalayam rent free from the Ruler. The grant, as will be seen, is assignment for consideration paid by the grantees. Subsequently Tippu Sultan, when he came to power, resumed six of the twelve hamlets and allowed the successors of the original grantees to continue in possession of the rest on the same terms, that is without any obligation to pay rent. After the British assumed power, the title of the successors of the grantees was confirmed with reference to the landsin their possession. At the inam enquiry it was recorded as an inam and confirmed subject to an assessment of Rs. 566-11-3 in addition to quit rent of Rs. 299-12-0 in column 12 of the inam Register extract and shows that consideration of 50,000 Rajagopala pagodas was paid into the Treasury.
2. The petitioner has come up with the writ as the village has been notified as inam under Madras Act XXVI of 1963. Earlier, on some tenants raising the contention that the village was an estate under Section 3(2)(d) of the Madras Estates Land Act, 1908, the petitioner and other co-owners initiated proceedings under Section 3(1) of the Madras Estates Land (Supplementary) Act (XXX of 1956) before the Estates Abolition Tribunal, Vellore, for a declaration that Komarapalayam. Agraharam was not an estate as defined under Section 3(2)(d) of the Madras Estates Land Act. The proceedings came up to this Court finally in Special Tribunal Appeal No. 52 of 1959 reported in Sellappa Gounder v. Bhaskaran : (1960)2MLJ363 . This Court observed then at page 367:
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 that basis, cannot affect the original character of the grant. An inam title deed does not operate either to enlarge or abridge the rights of the inamdars under the original grant.
With respect we are in entire agreement with the observations. In our view, they would govern the question whether the village is one that would come under Madras Act XXVI of 1963 or for that matter Madras Act XXX of 1963 as a grant in inam. No doubt the question that arose for consideration in the earlier proceedings was whether Komarapalayam Agraharam was an entire village or a named village at the time of the grant so as to come within Section 6(2)(d) of the Madras Estates Land Act.
3. Before us some of the tenants in the village got themeselves impleaded as party respondents to oppose the application. Mr. R. Ramamurthi Iyer, learned Counsel appearing for the tenants, submitted that even if it could be said that the original grant was not an inam but a assignment for consideration, confirmation of the assignment on change of sovereignty would make it a grant in inam. Learned Counsel in this connection referred to the decision in Secretary of State for India v. Bai Rajbai L.R. 42 IndAp 229 : 29 M.L.J. 242 : I.L.R. 39 Bom. 625(P.C), Vajesinghji v. Secretary of State for India (1924) L.R. 51 IndAp 357 : 1924 47 M.L.J. 574 : I.L.R. 48 Bom. 613. (P.C), and Secretary of State v. Rustam Khan (1941) 54 L.W. 397 : A.I.R. 1941 P.C. 64. Reference was also made to the decision of the Supreme Court in State of Gujarat v. Vora Fidduli : 6SCR461 . In our view these decisions are not helpful to the tenants in the context of the right agitated now and its origin and continuance. In Secretary of State for India v. Bai Rajbai (1915) L.R. 42 IndAp 229 : 1915 29 M.L.J. 242 : I.L.R. 39 Bom. 625(P.C), Lord Atkinson observed:
The relation in which they stood to their native Sovereigns before this cession, and the legal rights, they enjoyed under them, are, save in one respect, entirely irrelevant matters. They could not carry in under the new regime the legal rights, if any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new Sovereign, were those and only those which that new Sovereign, by agreement expressed or implied or by legislation chose to confer upon them. Of course this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with them which the new Sovereign adopted, his recognition of their old rights, and express or implied election to respect them and be bound by them...
4. In our view, the confirmation of the original assignment is an implied recognition and acceptance of the tenure under which the property was held. In this connection reference may be made even to Madras Regulation XXXI of 1802, a Regulation for trying the validity of the titles of persons holding or claiming to hold lands exempted from the payment of revenue under grants not being royal grants. The-material portion of Section II of the Regulation may be set out:
All grants for holding lands exempt from the payment of public revenue in the Circars of Chicacole, Rajahmundry, Ellore, Mustaphanagar, and Moortezanagar, which shall have been made previously to the 26th day of February, 1768; and all such grants as may have been made previously to the 26th day of February, 1768 and all such grants as may have been made previously to the 12th day of July, 1792, in the Carnatic Payenghaut and in Tanjore, and all such grants as may have been made previously to the 18th day of March, 1792 in the Baramahal in Salem, in Dindigul, and in Malabar... shall be deemed to be valid; and all persons holding lands exempt from the payment of public revenue previously to the several dates herein before specified shall continue to hold such lands without let or molestation: provided that such lands may not have escheated to the state or may not have been resumed and assessed to the public revenue since the period of those dates respectively and provided also that the present incumbents or their ancestors did obtain and hold actual possession; of the said lands previously to the dates hereinbefore specified.
5. The grant in this case was in 1760. Reference may also be made to Madras Act VIII of 1869 for emphasising that inam proceedings cannot alter or affect the true title of the parties to the land. In our view, it is difficult in the light of the history of the grants in question to hold that they are inam grants. It is needless in the circumstances to leave the matter for consideration by the Tribunal under Act XXXI of 1963, as the relevant documents are before us. The history of the inam has been made clear in earlier proceedings which have come up to this Court and which have been referred to by both the parties. We are unable to reconcile the concept of an inam grant which must be a gift or benefaction with an assignment which has its origin in a bilateral transaction. The Inam Register extract itself shows that the assignment was for consideration. In these circumstances, we have no hesitancy in holding that Komarapalayam Agraharam is not an inam at all to come under either Act XXVI of 1963 or Act XXX of 1963.
6. The writ petition is allowed and the rule nisi thereon is made absolute. No costs.