Rajagopala Ayyangar, J.
1. These appeals arise out of a common order of the Estates Abolition Tribunal, Mathurai, in a batch of petitions filed under Section 42 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, Madras Act (XXVI of 1948) seeking payment of advance compensation deposited with the Tribunal in respect of the Karungalur estate in Tanjore district.
2. A sum of Rs. 35,913, was deposited with the Tribunal under Section 54-A of the Abolition Act in respect of the inam estate of Karungalur. As many as 42 petitions were preferred to the Tribunal seeking payment of proportionate shares in the sum so deposited. The Tribunal ordered four of these petitions and dismissed the rest. Appeals have been preferred by the petitioners whose claims have been rejected by the Tribunal.
3. It is necessary to state a few facts in order to understand the basis of the rejection of the appellants' claims by the Tribunal and the contentions advanced before us questioning the correctness of that rejection.
4. It is common ground that the village was an inam estate falling within the definition of Section 3(2)(d) of the Estates Land Act the landholder being entitled only to melvaram in the village. The village of Karungalur formed part of the Tanjore Palace Estate and was allotted to the Senior Prince of Tanjore under the final decree in O.S. No. 3 of 1919 on the file of the District Court, Tanjore West. Karungalur had three hamlets, viz., Kulamangalam, Karungalur thottam and Gudalur thottam and the advance compensation amount deposited represented the sum due for the entire group. The hamlets of Karungalur became the property of the Junior Prince of Tanjore ; he was adjudicated an involvent in I.P. No. 40 of 1933 with the result that these came to be vested in the Official Receiver, Tanjore West. The several appellants originally owned kudivaram interest in the lands in their occupation and at a sale held by the Official Receiver, the melvaram interest of the landholder, the Junior Prince, in their holdings was purchased by the kudivaramdars. Under the provisions of the Madras Abolition Act these appellants would be entitled to the grant of ryotwari pattas in respect of their holdings.
5. The question, however, under debate is whether these appellants arc entitled to any portion of the compensation deposited with the Tribunal as representing compensation due to the melvaram interest purchased by them at the sale held by the Official Receiver. The Tribunal held that they were not, and that is the only matter in controversy in the appeals.
6. The reasoning on the basis of which the Tribunal rested its decision was shortly this:
1. When a person who holds a kudivaram interest in the land, obtains a transfer by purchase or otherwise of the melvaram interest in the same land, such a person does not become a landholder within the definition of the term in Section 3(5) of the Madras Estates Land Act but he remains merely a kudivaramdar ;
2. When the estate was notified under the Abolition Act (Madras Act XXVI of 1948) it was the interest of the 'landholder', that became vested in the Government under Section 3(b) of the Act and the compensation provided by that Act was only for the taking over of that interest;
3. In regard to the appellants' interest as kudivaramdars, their rights were safeguarded by the proviso to Section 3(d) of the Act and they were given the right to obtain ryotwari pattas in respect of their holdings under Section 11.
4. Prior to the notification and taking over of the estate, by reason of their purchase of the melvaram interest they might, no doubt, be exempt from the payment of rent to any landholder because the hand that had to pay the rent and the hand that was entitled to receive was the same but as the Abolition Act provided for the imposition by the Government of assessment on such lands, (vide Section 3(g) and Sections 22 and 23 of the Act) the land revenue became payable on such lands. The Abolition Act provided no compensation for this loss of benefit which the kudivaramdars sustained ;
5. The compensation actually deposited with the Tribunal by the Government in respect of this Inam Estate was computed on the basis of the basic annual sum which most probably did not include the ryotwari demand payable on the holdings of the appellants. For this reason the compensation which the Tribunal was1 called on to apportion did not include any sum attributable to any interest of the appellants. Consequently the appellants could not make any claim to the compensation now in deposit with the Tribunal.
7. We might even at the outset add that the submissions of the learned Counsel for the respondents were identical with those which we have set out above, and the question for consideration is whether these proceed on the correct interpretation of the provisions of the Estates Land Act and the Abolition Act.
8. The first question that arises for consideration is as to the effect of the purchase of the melwaram interest by a person owning the kudivaram in the land. The Tribunal has based its decision against the appellants principally on two decisions of this Court, viz., Marina Veeraswai v. Boyinappalli Venkatarayudu : (1920)39MLJ225 , and Ganjain Manikyamba v. Pasala Mallayya : (1924)47MLJ393 . But before discussing these, it would be necessary to refer to the relevant provisions of the Estates Land Act. Section 6(1) as enacted in 1908 reads:
Subject to the provisions of this Act, every ryot now in possession or who shall hereafter be admitted by a landholder to possession of ryotiland not being old waste situated in the estate of such landholder shall have a permanent right of occupancy in his holding.
9. It is not necessary to refer to the other Sub-sections except to the last Section 6(6) which then ran:
A person holding land as an Ijardar or farmer of the rent shall not while so holding, 'acquire, otherwise than by inheritance or devise, a right of occupancy in any land comprised in the ijara or farm .
Explanation.---A person having a right of occupancy in the land does not lose it by subsequently becoming interested in the land as landholder or by subsequently holding the land in ijara or farm.
Section 6 was followed after Section 7 which is not material by Section 8(1) reading : '
Merger of occupancy.--'Whenever before or after the commencement of this Act the entire citato of the landholder and the occupancy ryot in any land in the holding have become united by transfer, succession or otherwise in the same person such person shall have no right to hold the land as a ryot but shall hold it as a landholder ; but nothing in this Sub-section shall prejudicially affect the rights of any third person.
10. Section 8(3) which continues in the same form even now ran ;
The merger of the occupancy right under Sub-sections (1) and (2) shall not have the effect of converting ryoti land into private land.
11. Section 3(5) defines the landholder thus:
Landholder' means a person owning an estate or part thereof and includes every person entitled to collect rents of the whole or any 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 of law.
12. The question debated before this Court on several occasions was as to the relative scope of Section 8(1) and the Explanation to Section 6(6) of the Estates Land Act, 1908. The view which ultimately prevailed was that the Explanation to Section 6(6) was in the nature of a rider or a proviso to Section 8(1) and that in cases where the landholder acquired the rights of a kudivaramdar in a holding there was a merger of their interests with the result that what be acquired was only the holding and not the ryoti interest in the land, that is, that the land did not cease to be ryoti land and that consequently if at a subsequent date the landholder let any person into occupation of the land for the purpose of agriculture, such occupant acquired a statutory right of occupancy under Section 6(1) of the Act. It was also decided that where an occupancy ryot acquired the melvaram interest in the holding, his ryoti interests were not affected, and that he did not become
a landholder with the consequence that in such a case where the ryot, leased the lands in his holding to another, the lessee did not, acquire occupancy rights as holding ryoti land under a landholder
Within the meaning of Section 6(1).
13. The difficulty which faced the learned Judges in deciding these cases, arose out of the wide language employed in Section 8(1) which was apt to include cases both of the landholder's acquisition of a holding as well as the ryot's acquisition of the melvaram interest, for the section spoke of ' the interest of the landholder and the occupancy ryot becoming united' and the problem was now to reconcile this with the express provision contained in the Explanation to Section 6(6). The facts which gave rise to the Full Bench decision in Marina Veeraswaml v. BoyinapalliVenkatarayudu : (1920)39MLJ225 were briefly these. The matter before this Court arose out of a suit for eviction of a tenant cultivating lands in the zamindari estate of Pithapur. The plaintiff's predecessors-in-title had originally occupancy rights in the land they holding it as service inam. The plaintiff, however, entered into an arrangement with the zamindar by which beneficial tenure was created relieving him the inamdar of the obligation of rendering service and in lieu thereof paying a small annual rent. The defendant was a tenant who had been let into possession by the plaintiff's predecessor. The defendant claimed that by reason of the arrangement between the zamindar and the plaintiff's predecessors they had become 'landholders' and that as the holding was a ryoti land in an estate, the tenants let into possession obtained occupancy rights and that no suit for eviction would lie in a civil Court. This defense succeeded before the trial Judge but the decision was reversed on appeal and the matter was brought up in this Court in a second appeal filed by the unsuccessful defendant. Spencer, J., who made the order of reference to a Full Bench expressed himself thus as to the questions to be referred:
The solution of this question depends first on the legal construction to be put on the definition of landholder in Section 3(5); secondly en the class of cases to which the merger of occupancy rights in Section 8(i) applies and thirdly as to the effect to be given to the Explanation to Section 6 of the Madras Estates Land Act, and as divergent views have been expressed by different benches of this High Court on the first two points and as the meaning of the expression ' subsequently becoming interested in the land as landholder'' in the Explanation to Section 6 is somewhat obscure, we refer to a Full Bench the following questions:1. Whether at any time before the institution of this suit the respondent acquired the status of a landholder in consequence of the grant of the suit lands by the zamindar to him on a favourable quit rent.* * * * * * * *
As the Full Bench did not answer the second question referred to it, it is unnecessary to set it out. The material portion of the answer of the Full Bench is contained in the following sentence:
The plaintiff's ancestors were estate ryots before the lands became karnam service inam lands and their lands again became ryoti land within the meaning of the Act, under the definition in Section 3(16) when the karnam service came to an end. The effect of Exhibits G and IV (4)(the arrangement with the zamindar) was to grant the plaintiff who thereby regained the status of a ryot, a remission of the greater portion of the rent payable by him to the zamindar and not to transfer to him any right to collect rents from third persons.
14. For this reason the Full Bench held that the plaintiff was not ' a person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor-in-title', within the meaning of Section 3(5).
15. The other decision referred to by the Tribunal, and relied on by the learned Counsel for the respondents before us, is Manikyamba v. Malayya : (1924)47MLJ393 . It is sufficient to refer to the headnote in the Law Journal Report to understand the scope of the decision:
The plaintiffs who were darmila inamdars brought a suit in a civil Court for recovery of possession of the suit properties on the strength of an oral lease given to the defendant. They alleged that they owned kudivaram interest to start with and that it was only subsequently that they obtained by granl the melvaram interest from the zamindar. On the question arising whether the suit was cognizable by the civil or revenue Courts it was held 'If the plaintiffs prove that they originally owned the kudivaram interest and were subsequently granted the melvaram they would not be landholders within the meaning of Section 3(5) of the Estates Land Act and could maintain the suit in the civil Court.
16. These two decisions are, clear authorities for the position, that where a person owning kudivaram acquires an interest in the melvaram, quoad his holding, there is no coalescence of the two interests under Section 8(1) but that on the other hand, the case is governed by the Explanation to Section 6(6) that is, that he still continues to hold the ryoti interest in the land. Therefore far from supporting the respondents, they appear to favour the submissions of the appellants before us. Whatever difficulties were caused by reason of the language of Section 8(1) and by the Explanation to Section 6(6) having to be read as an independent provision and an exception to the rule of merger enacted in Section 8(1), all these were removed by amendments ejected to the Estates Land Act by the Madras Estates Land (Amendment) Act, 1934(VIII of 1934). The Explanation was cut out from Section 6(6) and it appeared as a new section, Section 6-A ceasing to have any connection with the subject-matter of the main part of Section 6(6) re-numbered as Section 6(5). Section 8(1) also underwent a modification and it was enacted to read:
Section 8(1): Merger of occupancy rights :--Whenever before or after the commencement of this Act the occupancy right in any ryoti land vests in the landholder he shall have no right to hold the laud as a ryot but shall hold it, as a landholder but nothing in this Sub-section shall prejudicially affect the rights of any third person.
17. The amendments, were therefore, a legislative affirmation of the interpretation which this Court placed on Section 8(1) and the Explanation to Section 6(6) and their relationship inter se.
18. No, doubt, these two decisions as also others to which it is not necessary to refer, have laid down that where a kudivaramdar acquired an interest in the melvaram over his holding he did not thereby become a ' landholder ' within the meaning of Section 3(5). This was meant only as a negation of any merger. If he became a landholder within the meaning of Section 3(5) in respect of his holding, the result would have been, that if he leased the lands in respect of which he admittedly had kudivaram interest his tenant would have become a ryot entitled to occupancy rights under Section 6(1) of the Act and thereby he would have become divested of occupancy right. He would have become a landholder, only if there was a merger and it was held in these decisions that the Explanation to Section 6(6) was designed to avoid this result. That a kudivaramdar who acquired a melvaram interest did not thereby become a 'landholder' cannot however, finally dispose of the point arising in these appeals. The question still to be answered is 'If the kudivaramdar acquired a melvaram interest and there is no merger of that interest with the kudivaram, which the acquirer already possessed, what is the nature of the acquired interest in his hands 'If ex hypothesi there is no merger the acquired interest must still be intact. This is how Burn, J., analysed the position in Sreemantha Raja Yarlagada Malikarjuna Prasada Naidu v. Subbiah (1919) 39 M.L.J. 277. The learned Judge said:
The scheme of the Act appears to me to be to divide all cultivable land into two categories: (1) private land....(2) ryoti land--in all such land two separate interests exist--the melvaram and kudivaram interest----the former is vested in the landholder and the latter in the ryot.
It seems to me that one main object of the tenancy law is to preserve these two interests 2nd keep them separate. The kudivaram interest may be in abeyance but it can never be destroyed. The landholder cannot prevent the acquisition of the right by a ryot--A landholder can hold the kudivaram interest in one case only, i.e., where he possessed it before he became the landholder (vide Explanation to Section 6 and even then the two interests remain separate.
It was the same idea that was expressed by Kumaraswamy Sastri, J., in Gadadhara Das v. Suryanarayana Patnalk : (1921)41MLJ97 ,
Where the grantee of the melvaram was himself the occupancy ryot it is difficult to see how the grant of the melvaram interest to him can divest him of that character so as to convert his subtenant into a permanent occupancy ryot....I think it would be reasonable to hold that the mere fact that an occupancy ryot gets an interest in the melyaram would give the sub-tenants (who till then had no rights of occupancy and who could be evicted) rights of permanent occupancy and put the grantee of the melvaram in a decidedly worse position. In all such cases when there is no merger under any of the provisions of the Act, the right of the inamdar as an occupancy ryot remains in him and the effect of his acquiring an interest in the melvaram is not to extinguish his rights as an occupancy ryot and convert him into a landholder so as to bring his sub-tenant within the provisions of Section 6(1).
19. The learned Judge then held that the Explanation to Section 6(6) prevented such a result and he said:
It was never the intention of the Legislature that persons who already acquired right of permanent occupancy or who acquired it by virtue of the inam grant should lose the benefit simply because they got an interest in the melvaram as well.
We might note in passing that though Kumaraswami Sastri, J.'s was a dissenting judgment, the other two learned Judges being a majority, the view expressed by Kumaraswami Sastri, J., was approved as correct by a later Bench consisting of Spencer and Odgers, JJ., in Bhupathimju v. Venkatdratnam : (1921)41MLJ512 .
20. One other test which might be applied to find out whether the acquired melvaram interest still remained as such in the hands of the acquirer would be to find out whether such an interest could not be alienated by him. Though there are no decisions on the point it is clear to us on principle that such an acquirer can in his turn alienate what he had acquired so as to render his alienee 'a landholder', that is, a person who would be a mesne assignee of the interest of the landholder--one who would be entitled to the perception of rents from ryoti land in the estate. If this were the true legal position it would follow that the appellants possessed before the notified date an interest in the land, other than as ryots in the estate.
21. Learned Counsel for the respondents urged that the true nature of the appellants' interest before the notified date could best be described by saying that they held the ryoti lands freed from the obligation to pay rent to the landholder and that this beneficial tenure was adversely affected by reason of the provisions of Section 3(g) and Section 11 of the Abolition Act--injurious affections for which the Act provided no compensation. We are unable to accept the theory underlying this submission which proceeds upon the basis of some kind of merger. The underlying postulate of the respondents' argument was something like this. Where Section 8(1) applies and there is a merger the occupancy right gets extinguished and the landholder obtains possession, so to speak, of the land comprising the holding without the transfer to him of the tenure on which the previous occupant held it. In cases covered by Section 6-A the landholder part becomes extinguished and gets merged in the ryoti interest, so that thereafter the person holds not two distinct and separate interests but a ryoti interests alone though on modified terms. We cannot agree with this theory which in effect introduces, as if by a side wind, the concept of a merger. In express terms Section 6-A of the Estates Land Act states that there is no merger in cases of acquisitions of melvaram interests by a kudivaramdar. If merger be negatived, the interests must continue to be separate and held under distinct titles as Burn, J., observed. Nor is there any possibility of invoking any Common Law doctrine of merger in such cases, because if it were applied it is the smaller interest that will get merged in the larger, the carved out in the reversion, with the result that it would be the kudivaram interest that will get extinguished, if the Common Law rule applied. As the statute has made express provision against the destruction of the ryoti right, the Common Law doctrine cannot apply to such cases. We are consequently unable to accept the theory that as a result of the acquisition of the melvaram interest no separate melvaram interest inhered in the acquirer but that only the nature of I he incidents.of the right he already possessed as an occupancy ryot underwent some modification;
22. No doubt it is somewhat difficult to describe in precise language the separate or distinct interest held by the appellants by reason of their purchase of the melvaram interest but such lack of words which: precisely connote the interest is a defect of vocabulary and can hardly be a reason for denying the reality of the existence of the right.
23. Decisions of this Court have laid down and if we may say so, with respect, correctly, that a kudivaramdar does not become a landholder within the meaning of Section 3(5) of the Estates Land Act by reason of such acquisition. In fact he would become a landholder only on the application of the principle of merger which the statute in express terms negatives. But this is only for the purpose of preserving the ryoti interest to the acquirers in their lands. Extracts from the observations of Burn, J, and Kumaraswami Sastri, J., which we have already made amply bear this out, but we consider that it would not be inapt to describe such interest as ' assignment of a landholder's interest ' which does not constitute the assignee a landholder within the meaning of Section 3(5). Undoubtedly the terminology is some that anomalous but if these kudivararndars had acquired a right and that right inhered in them as a separate and distinct interest capable of transfer we do not see any impropriety in this description. As already stated if such interests again came to be held by separate individuals say by reason of a transfer of the acquired melvaram to another, in the hands of the transferee it would assume its normal characteristic as a landholder's interest within the meaning of Section 3(5) of the Act.
24. We therefore, consider that the decisions referred to by the Tribunal and the other decisions which were placed before us by the learned Counsel for the respondents far from supporting the submission that the acquired interest cease to exist as a separate entity have led us to the conclusion that on the notified date the appellants possessed not merely the kudivaram interest in the lands but something in addition, that being the interest in the melvaram which they acquired by reason of their purchase at the auction held by the Official Receiver.
25. This brings us to a consideration of the provisions of the Estates Abolition Act and the submission of the learned Counsel based thereon. The question first to be considered, is whether the Estates Abolition Act has made provision for compensation in respect of the acquired interest in the melvaram which the appellants possessed by reason of their purchase in the auction held by the Official Receiver. Section 3 of the Abolition Act enacts the consequences of the notification of an estate and the portion relevant to the present discussion is contained in Section 3(b), (c), (e) and (f) which we shall set out.
Section 3.--With effect on and from the notified date save as otherwise expressly provided in the Act--
* * * * * * * *(b) the entire estate (including all communal lands and porambokes, other non-ryoti lands, waste lands, pasture lands, lanka lands, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries) shall stand transferred to the Government and vest in them free of all encumbrances; and the Madras Revenue Recovery Act, 1864; the Madras Irrigation Cess Act, 1865 and all other enactments applicable So ryotwari areas shall apply to the estate; (c) all rights and interests created on or over the estate before the notified date by the principal or any other landholder, shall as against the Government cease and determine ;
(e) the principal or any other landholder and any other person whose rights stand transferred under Clause (A) or cease and determine under Clause (c) shall be entitled only to such rights and privileges as are recognised or conferred on him by or under this Act;
(f) the relationship of landholder and ryot shall, as between them, be extinguished.
26. Estate is defined in Section 2(3) as meaning ' a zamindari or an under-tenure or an inana estate ', Mr. Aravamudha Iyengar, learned Counsel for the respondents contended that under Section 3(b) what ' stood transferred to the Government' was only the interest of the 'landholder' as defined in Section 3(5) of the Estates Land Act and that as the appellants were not ' landholders ' as so defined, their estate did not vest in the Government. He next submitted that Sub-section (c) had reference to carved out interests where there still subsisted some relationship or tenure between the parent and the interest one put in i.e., between ' the landholder ' and the holder of that subordinate interest, and that as in the present case it was an out and out sale of a portion of the melvaram without there being any continuing relationship between the landholder and the derivative interest holder, the case of the appellants did not fall within Section 3(c) of the Abolition Act. He next referred us to the provision for the computation of compensation and to Section 31 dealing with that in relation to inam estates. Section 31(1) enacts:
In the case of an inam estate the basic annual sum shall be the aggregate of the sums specified below less the deductions specified in Section 35(i) the whole of the gross annual ryotwari demand in respect of all lands in the estate (excluding lanka lands) in respect of which any person other than the landholder is entitled to a ryotwari patta as ascertained under Section 32 less the deductions specified therein.
27. Learned Counsel invited us to hold that as no rent was payable on the holdings to ' the landholder ' in respect of the holdings of the appellants, no amount was taken into account in respect of those lands as the gross annual ryotwari demand within Section 31 (1) and he, submitted that the Government had properly excluded the ryotwari demand on the lands included in the holdings of the appellants, from the computation of the basic annual sum and in computing the compensation for the Estate without including these sums. We find ourselves unable to agree in this construction of the provisions. When under the terms of Section 3(b): ' The estate ' becomes transferred to the Government and becomes vested in them, the interest thus transferred would in our opinion include not merely that of ' the landholder ' as defined in Section 3(5) of the Estates Land Act but also the melvaram interest held by such persons as the appellants. The language employed in Section 3(6) is of the most comprehensive character and is not confined to any designated interests. If, as we have held, the appellants had a separate and distinct and transferable interest in the melvaram, apart from the kudivaram interest in their holding, such an interest is in our opinion, comprehended within Section 3(b). Such an interest partook of the nature of the landholder's interest,though it did not fall within the definition in Section 3(5), for reasons which we have already set out, but was capable of emerging as a pucca landholder's interest if transferred to a stranger. To hold that such an interest was not transferred to Government would lead to anomalous results. If they were not transferred to Government under Section 3(6) and were not shorn of the interest which ceased and determined under Section 3(c) it would have to be held that such interests still subsisted. In other words by reasons of the subsistence of such interests the appellants would be enabled to receive ryotwari assessment levied on the lands in their holdings, though they would be bound to pay these assessments as ryots, because of the provisions of Section 3(g) read with Sections 22 and 23 of the Act. It goes without saying that this would be a most strange result which the Legislature could not have contemplated. If this result has to be avoided, the only other possible position would be to hold, that notwithstanding that there was no transfer to the Government under Section 3(6) and its not ceasing to exist by virtue of Section 3(e) it still became extinguished without any specific provision either for its extinguishments or for compensation for such extinguishments. A contention which leads to such a result has necessarily to be rejected. On the other hand the interpretation which we are inclined to place upon Section 3(b) appears to us to be consistent with principle and in conformity with the language of the enactment and at the same time avoids any injustice.
28 If Section 3(b) is interpreted in this manner, namely, that the transfer to the Government included such rights in the melvaram as the appellants possessed, we shall proceed to consider whether there is anything in the other provisions of the Act to militate against this view. In this connection we may refer to the provisions of Sections 11 and 13 which deal with the grant of ryotwari pattas to ryots and landholders, to the former in respect of their holdings and to the latter in respect generally speaking of their private lands.
29. Section n enacts:
Every ryot in an estate shall with effect on and from the notified date, be entitled to a ryotwari patta in respect of (a) all ryoti lands which, immediately before the notified date, were properly included or ought to have been properly included in his holding and which are not either lanka lands or lands in respect of which a landholder or some other person is entitled to a ryotwari patta under any other provisions of this Act.
The other ' provisions of the Act' under which the landholders of the type now under consideration were entitled to patta is Section 13 which enacts:
In the case of an inam estate, the landholder shall with effect on and from the notified date be entitled to a ryotwari parta in respect of:
(a) all lands (including lanka lands) which, immediately before the notified date (i) belonged to him as private land within the meaning of Section 3, clause 10
(b) of the Estates Land Act or (ii) stood recorded as private land in a record prepared under the provisions of Chapter XI or Chapter XII of the said Act, not having been subsequently converted into ryoti land ; and (4)(i) all lands which were properly included or which ought to have been properly included in the holding of a ryot and which have been acquired by the landholder, by inheritance or succession under a will, provided that the landholder has cultivated such lands himself, by his own servants or by hired labour, with his own or hired stock, in the ordinary course of husbandry, from the date of such acquisition or the 1st day of July, 1945, whichever is later and has been in direct and continuous possession of such lands from such later date ; (ii) all lands which were properly included, or which ought m have been properly included, in the holding of a ryot and which have been acquired by the landholder by purchase, exchange or gift, including purchase at a sale for arrears of rent provided that the landholder has cultivated such lands himself, by his own servants or by hired labour, with his own or hired stock, in the ordinary course of husbandry from the 1st of July, 1945 and has been in direct and continuous possession of such lands from that date ;
(iii) all lands (not being (i) lanka lands, (ii) lands of the description specified in Section 3, Clause (16), Sub-clauses (a), (b) and (c) of the Estates-Land Act or (iii) forest lands) which have been abandoned or relinquished by a ryot or which have never been in the occupation of a ryot, provided that the landholder has cultivated such lands himself by his own servants or by hired labour, with his own or hired stock in the ordinary course of husbandry from the 1st day of July, 1945 and has been in direct and continuous possession of such lands from that date.
Explanation.--'Cultivate' in this clause includes the planting and rearing of topes, gardens and orchards, but does not include the rearing of topes of spontaneous growth .
30. It would be noticed that while Sub-clause (a) comprised what might be termed pucca private lands--lands which were never ryoti and which had belonged to the landholder in absolute right Sub-clauses (b) to (d) deal with lands which were once ryoti and included in the holdings of the ryots and had been acquired by the landholder in the manner there described and had been retained by him in his own khas possession and under his own cultivation for the periods set out in the Sub-clauses. They would, therefore, be cases of the type of acquisition referred to in Section 8(1) of the Madras Estates Land Act but in regard to which by reason of the personal cultivation by the landholder himself no ryot had acquired occupancy rights under the provisions of the Madras Estates Land Act.
31. It would be seen that the present appellants would be entitled to ryotwari pattas in respect of their holdings under Section 11 and not under Section 13. This follows as a logical result of there being no merger. By reason of their acquisition of the rnelvaram interest they did not occupy their holdings as landholders but continued in occupation as ryots and it was precisely for this reason that to their case Section 11 and not Section 13 is attracted. Section 11(a), it will be seen, excludes from the operation of the provision ' lands in respect of which the landholder is entitled to a ryotwari patta '. In the context it would be clear that it applies only to cases where the landholder as such is entitled to a ryotwari patta, that is, in respect of lands governed by Section 13. In respect of other lands where he is entitled to a ryotwari patta, it would be under Section 11 notwithstanding, we would add, his being entitled to melvaram interest in such lands by an acquisition falling within Section 6-A of the Estates Land Act. We do not also consider that Section 31 whose terms we have already extracted support the respondent's contention. The gross annual ryotwari demand referred to in Section 31(1) is that in relation to all the lands in the estate in respect of which any person other than the landholder is entitled to a ryotwari patta. In respect of the lands in their holdings the appellants as landholders were not entitled to a ryotwari patta and therefore, the annual ryotwari demand in respect of such lands had to be taken , as part of the component to determine the basic annual sum under Section 31(1). Learned Counsel for the respondents faintly suggested that by reason of the acquisition of the melvaram interest they ceased to be lands in the estate within Section 31(1) but this is an untenable contention which does not merit any consideration. If the lands were not part of the estate, they could certainly not be taken over by the Government, and apart from the contention being without substance this was not the position taken up by any party at any stage.
32. We shall now summarise the result of the foregoing discussion. By reason of the acquisition of the melvaram interest the appellants had obtained a share of the melvaram which they retained as a separate interest distinct from their occupancy rights in their holdings. That interest became transferred to and vested in the Government under Section 3(b) of the Act. By reason of Section 3(e) the appellants were the persons who became entitled to compensation from the Government as provided in the Act. In the computation of the basic annual sum and as part of one of its components the annual ryotwari demand in respect of their hofdings had to be taken into account. The logical result of the foregoing analysis would be that the appellants would be entitled to a share in the compensation deposited with the Tribunal.
33. Learned Counsel for the respondents, however, raised two objections to the application of this logical result. The first was based upon the terms of Sections 42 to 44 and the second on a question of fact that the compensation actually deposited with the Tribunal was based upon a computation, which did not take into account the ryotwari demand from the holdings in the occupation of the appellants and that consequently the compensation which the Tribunal was called on to apportion among the several claimants did not include that attributable to the interests of the appellants. We shall take up for consideration first the provisions dealing with the powers of the Tribunal in regard to the apportionment of compensation. Section 41 makes provision for the deposit of compensation in respect of each estate and its Sub-section (2) enacts:
On the making of such deposit, the Government shall be deemed to have been completely discharged in respect of all claims to, or enforceable against, the compensation aforesaid.
34. This is followed by Section 42 which enacts:
(1) Every person claiming the compensation so deposited or any portion thereof, including the principal or any other landholder, members of his family claiming any portion of such compensation whether by way of a share or by way of maintenance or otherwise, and creditors whether their debts arc secured or not, shall apply to the Tribunal within six months from the date on which the amount was so deposited or within such further time as the Tribunal may in its discretion allow .
The section, therefore, is indifferent as to the persons entitled to the compensation but this has to be gathered from the other provisions of the enactment and in particular from Section 3(e) and Section 41(2) which we have already extracted. Compensation is for all interests transferred under Section 3(b) or extinguished under Section 3(c) and it is on the making of such deposit that the Government is discharged in respect of all claims to the compensation. Section 43 enjoins on the Tribunal the duty of serving notice upon all who have applied under Section 42 and to any others whom it considers to be interested, before making an enquiry into the validity of the claims received by it and on such enquiry to determine the persons who in its opinion, are entitled to the compensation deposited and the amount to which each of them is entitled. Section 44 was the provision mainly relied on and we shall therefore set out the material portion of it:
44(1).--As a preliminary to such determination, the Tribunal shall apportion the compensation among the principal landholder and any other person whose rights or interests in the estate stand transferred to the Government under Section 3, Clause (b) or cease and determine under Section 3, Clause (c) including persons who are entitled to be maintained from the estate and its income, as far as possible, in accordance with the value of their respective interests in the estate, (2) The value of those interests shall be ascertained (a) in the case of the impartibly estates referred to in Section 45, in accordance with the provisions contained in that section and in such ''rules, not inconsistent with that section, as may be made by the Government in this behalf ;and
(b) in the case of other estates, in accordance with such rules as may be made by the Government in this behalf .
35. Learned Counsel took us through the rules promulgated under Section 44 and pointed out that no provision was made in it for the type of interest possessed by the appellants. Learned Counsel conceded that if, under Section 3(e) and 41(2) read with Section 42 the appellants were entitled to any portion of the compensation amount, the same should not be restricted'' or abrogated by the rules. But this apart, we do not consider that even under the rules the appellants could not be treated as sharers or owners because though they Were not landholders as defined in Section 3(5) they held a landholder's interest or an aliquot part thereof in the estate.
36. We therefore, hold that the appellants were entitled to a share in the cornpensation amount deposited , with the Tribunal because the amount so deposited with the Tribunal represented in part the compensation for their interests which vested in the Government under Section 3(b).
37. This brings us to the last of the points to be considered, namely, whether the amount now in deposit with the Tribunal and which under the petitions of the appellants and others it was called on to apportion included as a fact the compensation attributable to the melvaram interest of the appellants; This point may be considered from two aspects. The first is whether in fact the Government have taken into consideration the ryotwari demand on the holdings of the appellants in the computation of the basic annual sum under Section 31(1) and (2). If the answer to the above question is in the negative what are the legal rights of the parties and the duty and the jurisdiction of the Tribunal in such an event; The Chairman of the Tribunal recorded his finding in respect of this: matter; thus:
That the melvaram of those lands was not taken into account in arriving at the basic annual sum is clear on a consideration of the documents Exhibits B-10 to B-12, B-15, B-16,and B-61... When it is admitted that the rent or melvaram of the lands in; which these persons are interested has not been taken into account in determining the basic annual sum, I fail to see how the petitioners can claim any portion of the compensation amount in deposit, which does not represent the lands in which they are interested.
The second member who on behalf of himself and the third member' delivered what might be termed the leading judgment on the point, expressed himself somewhat differently. He observed:
Exhibits B-10 and B-10 (1) account in respect of Kurungalur proper...shows the total amount that the landholder is entitled to collect as Rs. 2,078-10-0. Similarly Exhibit B-11 shows that Chidambaram Chettiar was entitled to collect Rs. 691-2-0 for Kurangalur thottam'. Exhibit B-12 shows that Ramaswami Chettiar was entitled to collect Rs. 75-7-0 ..for some of the: lands in Kulamangalam. Exhibit B-61 gives the figures for the entire estate and the rentals, collectable in respect of all the lands whether they are ryoti lands or whether they are lands both varams of which are held by parties in possession. The total demand is Rs. 6,111-1-0 before the rent reduction was effected. The data sheet, Exhibit B-15 shows that before rent reduction, the amount that was taken for calculating the basic annual sum was only Rs. 4,837-9-0. After rent reduction the figures for calculating the basic annual sum is taken to be Rs. 2,949-1-2. This Rs. 2,949-1-2 seems to have been arrived at by taking into account only the melvaram that was being actually collected (viz.) from Kulamangalam of Rs. 75-7-0, Kurungalur Rs. 2,077-10-7, Kurangalur thottam Rs. 691-2-0 and Gudalur thottam Rs. 172-6-0 making Rs. 2,916-7-0...Exhibit B-16 is a letter addressed to the advocate from the Director of Settlement and, it states: ' The counsel for the petitioner is informed that according to the information available in this office Kulamangalam, Kurungalur thottam and Kurangalur for which he has applied for certified copies of data sheets are only hamlets of Kurangalur inam estate. The advance compensation for Kurungalur inam estate has been worked our for the estate as a whole therein. Therefore, there are no separate data sheets for Kurangalur, Kurangalur thottam. and Kulamangalam hamlets. The assessments of these hamlets had been taken into account in arriving at the basic annual sum the inam estate of Kurangalur. The amount of Rs. 35,913 deposited towards the advance compensation with the Estates Abolition Tribunal, Madurai, on nth February, 1953, is in respect of the entire inam estate including the hamlets....
He then proceeded to state:
Having regard to the figures, I come to the conclusion that in arriving at the basic annual sum and so the advance compensation, these rents have not been taken into account
and he wound up
My conclusion, therefore, on the fact is that the rentals have not been included and on the law that is immaterial if they are so included or not in determining the question whether the compensation is divisible among the persons claiming it.
38. It will thus be seen that there was unanimity between the members of the Tribunal in regard to the question of fact as to whether the amount deposited did or did not include the ryotwari demand on the holdings of the appellant. The question that, however, arises is as to whether the Tribunal could base any decision on this finding. It would be seen that the Second and the Third Members who formed the majority held that in regard to the duties of the Tribunal, in effecting apportionment amoung the claimants of the compensation deposited with them, the components which formed the basic annual sum was not material or relevant. In this conclusion we entirely agree and in fact it appears to us that the duty of the Tribunal is confined to apportioning the amount deposited with them to the persons and among the interests referred to in Sections 42 to 46 and does not extend to the determination of the propriety or quantum of compensation deposited by the Government. Section 25 of the Abolition Act enacts that the compensation shall be determined for the estate as a whole and not separately for each of the interests therein and that was precisely what was contained in a communication from the Director of Settlements to the advocate for the parties the material portion of which we have already extracted. The Tribunal had, therefore, to proceed on the basis that the sum deposited with them was the compensation for the entirety of interests in the estate--the entirety of the compensation payable in respect of the rights transferred under Clause (b) or had ceased and determined under Clause (iii) ; Vide Section 3(e). If any of the parties or classes of interests entitled to compensation or any share therein were aggrieved by the quantum of compensation deposited with the Tribunal the authority vested with jurisdiction to determine the matter was not the Tribunal when making apportionment under Sections 42 to 46 but the authority named in Section 39(5) which enacts:
Any person deeming himself aggrieved by an order made under Sub-section (1) may, within three months from the date of the order or such further time as the Board may in its discretion allow, appeal to the Board of Revenue ; and the Board shall, after giving the applicant a reasonable opportunity of being heard, pass such orders on the appeal as it thinks fit.
39. It is in view of these provisions that we have expressed our concurrence with the conclusion of the second and the third members that if the appellants were found entitled to a share in the compensation deposited with the Tribunal, the Tribunal was not the forum where any error in the computation of the basic annual sum or of the quantum of compensation could be agitated.
40. The result is that these appeals have to be allowed and the petitions remanded to the Tribunal for reapportionment of the compensation in the light of our decision that the appellants are entitled to a share in the compensation by virtue of their acquisition of the melvaram interest in their holdings.
41. If the parties are aggrieved by any error in the computation of the basic annual sum they would be free to pursue their remedies under the law to obtain a rectification of the error, if any. The appellants are entitled to their costs in these appeals. Counsel's fee Rs. 500 in all the appeals. It will be apportioned equally in the several appeals.