1. This appeal is against the order of the Estates Abolition Tribunal, Mathurai, in O.P. No. 3 of 1953 on 1ts file. The appellant was the landholder of Illayarasanendal zamindari, an impartible estate. Appaneri was one of the villages that formed part of that zamindari. When the zamindari vested in the Government under Madras Act XXVI of 1948, the Government deposited Rs. 19,743 as advance compensation for Appaneri village. The claim by the petitioners in O.P. No. 3 of 1953 for payment out to them of a portion of that amount on the ground that they were also landholders of the estate entitled to a share in the compensation amount was allowed by the Tribunal, overruling the objections of the appellant.
2. The following genealogical table should help to understand the relationship between the parties:
Venkataranga Appaswami Naidu
| | |
Kasturi Renga Appaswami Appaswami Venkatachalaswami
| | | | |
R.A. Kasturi R.A. Appa- Venkatachala Subramania Muthialu
Ranga Appa- swami Naidu Appaswami Appaswami (Petr. Appaswami
swami Naidu Naidu (Petrs. in O.P. 3 of |
in O.P. 1092 1953) Pandya Raja
of 1952.) Appaswami
(by next friend Petr.
in O.P. 3 of 1953.)
3. Subaramania Appaswami and Pandyaraja Appaswami, the petitioners in O.P. No. 3 of 1953 and the respondents in this appeal, and the three petitioners in O.P. No. 1092 of 1952 are the grandsons of Appaswami, the second son of Venkataranga Appaswami Naidu, and these together were referred to as members of the second branch of the family. The appellant, Kasturi Ranga Appaswami and his son constituted the first branch. It was common ground that in 1886 there was a partition between the three sons of Venkatararga Appavwami Naidu. That transaction was evidenced by Exhibit B-5. In that partition a block of about 190 acres of what had constituted pannai lands of the zamindari were allotted to the second branch represented by Appaswami. Before we discuss the main question that arises for consideration in this appeal, what was the nature of the interest that the second branch took in these lands under Exhibit B-5, we shall complete the narrative of events. It was common ground again, that a little over 20 years ago there was a further partition in the second branch between Venkatadriswami, the predecessor-in-interest of the petitioners in O.P. No. 3 of 1953, and Venkatadriswarm's nephews who were the petitioners in O.P. No. 1092 of 1952. Venkatdriswami got for his share about 100 acres of the lands in Appaneri village while the rest of what had been obtained under Exhibit B-5, about 95 acres, fell to the share of his nephews. Subsequent to that Venkatadriswami's nephews sold the kudivaram interest in 35.47 acres to others from whom they claimed they collected 'Thirva' thereafter totalling Rs. 37-7-0. Venkatadriswami's branch, it should be remembered, got about 100 acres, but it was admitted that when the estate was abolished they were not in possession of any of these lands. They had parted with the kudivaram interest and they were in receipt of ''Thirva' from the alienees totalling Rs. 129-7-0.
4. It was virtually on the basis, that the petitioners in O.P.No. 3 of 1953 and the petitioners in O.P. No. 1092 of 1952, who together constituted the second branch of the family, collected Thirva from the alienees in whose favour they had parted with the kudivaram interest in a major portion of the pannai lands that had been allotted to that branch under the partition deed Exhibit B-5 that the Tribunal rested its decision, that they were also landholders and were therefore entitled to a share in the advance compensation for Appaneri village. The contention of the appellant was that that view was erroneous. We should however remember that we are concerned in this appeal only with the claim of Venkatadriswami's sons, the petitioners in O.P. No. 3 of 1953.
5. Did Appaswami of the second branch become a 'landholder' within the meaning of Section 3(5) of the Estates Land Act (I of 1908) under the partition arrangement evidenced by Exhibit B-5 is the question. The relevant portion of Exhibit B-5 ran:
Since the abovementioned lands in Appaneri village are zamin pannai lands, the second brother (Appaswami) and his heirs shall pay every year a consolidated (sic) sum of Rs. 35. as fixed rent (sic) towards zamin varam (sic) every March in the zamin kutcheri from the next fasli 1296 without (any need for) pattas (and) muchilikas and obtain receipts. The road cess etc., levied by Government from time to time on the total rent (sic) on the above lands will also have to be paid in the zamin katcheri as mentioned above by the second brother and his heirs.
6. What was it that Appaswami of the ssecond branch got under Exhibit B-5, is the question for consideration. On the date of Exhibit B-5, the lands in question were the pannai lands that belonged to the family of the landholder which included Appawami. No one had any rights of occupancy in the land other than the family. There could have been no question then of separation of the melvaram and kudivaram interests in lands which were pannai lands. Under Exhibit B-5 Appaswami certainly acquired rights of permanent occupancy in the lands allotted to him. He was also subject to a liability to pay in perpetuity a sum of Rs. 35 every year to the landholder It is true that that payment was called 'kattuguthagaiporuppu' It is also true that the road cess etc., that were payable on these lands would not necessarily be related to this payment of Rs. 35 but to the real rent, 'Thirva'' payable on the lands. Exhibit B-5 specifically laid the liability on Appaswami to pay, the road cess etc., lawfully payable to the Government. But it also stipulated that that road cess should be paid to the zamindar, because it was still the zamidar that was liable to pay road cess, etc., on the entire estate to the Government. That the parties clearly realised that the sum of Rs. 35 was less than the rent, as it was subsequently defined by the Estates Land Act, lawfully payable on the lands and provided for the payment of road cess on that basis did not, in our opinion, alter the real nature of the obligation imposed upon Appaswami; the Rs. 35 a year he had to pay was rent. Thus the postion after the execution of Exhibit B-5 was, there was a separation of the kudivaram and melvaram interests in the lands. The kudivaram interest vested in Appaswami. Rs. 35 constituted the melvaram. It might have been more. But, as we said, it did not really alter the nature of the obligation to pay Rs. 35 imposed upon Appaswami. That melvaram was retained by the landholder. The separation of the kudivaram and melvaram interests and the retention of the melvaram by the landholder clearly indicated the conversion of what had been pannai lands to ryoti lands. The kudivaram interest which carried with it permanent rights of occupancy was vested in Appaswami. It was certainly open to the landholder to do that. That was the principle that was given statutory recognition later by Section 181 of the Estates Land Act. To sum up, the position that resulted from Exhibit B-5 was that what had been pannai lands were converted into ryoti lands. Permanent rights of occupancy were conferred upon Appaswami with a liability to pay rent, no doubt at a favourable rate. That rent was fixed in perpetuity. Appaswami thereafter became a ryot and the lands became ryoti lands.
7. The position was analogous to that the learned Judges of the Full Bench had to consider in Kondayya v. Naganna : AIR1941Mad367 . No doubt there it was a case of sale, but that makes no real difference to the principle to apply in such cases. What was sold in that case was all the rights possessed up to that point by the landholder in the lands, which were pannai lands, excepting the melvaram rights thereto. The rent payable by the alienee, the kudivaramdar, thereafter was fixed in perpetuity. The learned Chief Justice observed at page 726:
The main characteristic of ryoti tenure is the permanent vesting in the tenant of the kudivaram right and the permanent retention of the melvaram right by the landholder.
8. At page 728 the learned Chief Justice stated:
In my opinion where a landholder possesses private lands within an ' estate ' and sells the kudivaram right, he must be deemed to have converted the lands into ryoti lands and additional terms will not alter the nature of the transaction....The argument which has been advanced that this interferes with the right of the landholder to contract freely with regard to his private lands seems to me to be beside the question. The landholder does not need to enter into a contract which will have the effect of converting his private lands into ryoti lands, but if he does contract and the tenure which he creates amounts to ryoti tenure, he must accept all the consequences of his action. The appellants here could have sold the lands in suit to the first respondent absolutely or they could have leased them at any rent they might have agreed upon without separating the kudivaram right from the melvaram right, but as they chose to separate the kudivaram right from the melvaram right and grant a permanent right of occupancy on the basis of the payment of rent relative to the melvaram right they must, in my judgment, be deemed to have converted the land into ryoti lands.
9. With that view Venkataramana Rao, J., agreed. But Krishnaswami Ayyangar, J., dissented from the majority. When that principle is applied to the facts of the present case it should be clear that after the date of Exhibit B-5, Appaswami became a ryot with an obligation to pay a sum of Rs. 35 a year as rent in perpetuity. That, as we pointed out above, represented the melvaram interest in the land still retained by the landholder.
10. Exhibit B-5 did not result in the transfer of the ownership of any portion of the estate as such to Appaswami to make them thereafter a landholder in relation to the 180 acres of what had been pannai lands of the landholder. Under Section 3(5) of the Estates Land Act, a landholder is 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. On the date of Exhibit B-5 the lands were pannai lands, and there was no question of collecting any rents. There was no ryot in possession. There was no rent payable. Under the definitions of rent and ryot in the Estates Land Act, it should be clear that it is the liability to pay rent that makes a person a ryot. The retention of the mel-varam right, the right to collect rent, after the date of Exhibit B-5 is inconsistent with a view that a portion of the estate as such including both the melvaram and the kudivaram was assigned to Appaswami. The right to collect rent could not have been assigned and was not assigned, as no rents were payable then. On the other hand the right to collect rent was retained by the zamindar, though the fixed rent was a concessional one,
11. We should, however, make it clear that we are not concerned now with the rights and liabilities inter se Appaswami and his heirs on the one hand and their alienees on the other. We are only concerned with the question, whether in relation to the pannai lands that were assigned to Appaswami under Exhibit B-5 his position was that of a landholder as defined by Section 3(5) of the Estates Land Act or was only that of a ryot. We have answered that question: Appaswami was only a ryot and not a landholder.
12. The learned Counsel for the respondents relied on Kanti Venkanna v. Sri Raja Chelikani Rama Row I.L.R.(1914) Mad. 1155 in support of his contention, that Appaswami became a landholder in relation to the pannai lands that were assigned to him under Exhibit B-5. Sadasiva Ayyar and Spencer, JJ., held in Kanli Venkanna v. Sri Raja Chelikani Rama Row I.L.R.(1914) Mad. 1155 that an alienee of a part of the melvaram due from the lands which formed a part of an estate's ryoti lands was a landholder within the meaning of Section 3(5) of the Estates Land Act.
13. In Bupathiraju v. Venkataratnam : (1921)41MLJ512 Spencer, J., himself was inclined to doubt the correctness of the decision in Kanti Venkanna v. Sri Raja Chelikani Rama Row I.L.R.(1914) Mad. 1155. It is not, however, necessary for us to consider for the purposes of this case whether the principle laid down in Kanti Venkanna v. Sri Raja Chelikani Rama Row I.L.R.(1914) Mad. 1155 was correct. What distinguishes that case from the one we have to consider now is that in Kanti Venkanna's case I.L.R.(1914)Mad. 1155 the lands dealt with were ryoti lands and not pannai lands. The rent that was lawfully payable on these ryoti lands was Rs. 300. What the landholder did was to remit a sum of Rs. 125 under savari mashal (palanquin and torch-bearing charges; and the balance of Rs. 175 was payable thereafter. That was construed by Sadasiva Ayyar J., and Spencer, JJ., as an alienation of part of the melvaram due to the landholder in favour of the person who already had the kudivaram interest. But that is not the position we have to consider in this case.
14. Zamindar of Kirlampudi v. Suryaprakasa Rao I.L.R. (1940) Mad. 149. again dealt with a case of ryoti lands which were demised in perpetuity at a favourable rent. Nor can Tungala Mallanna v. Gothumukkala Ramaraju (1914) M.W.N. 345 have any application to the facts in issue before us.
15. The last of the cases to which we have to refer is Bupathiraju v. Venkataratnam : (1921)41MLJ512 . where Spencer, J., held that mere interest in a portion of the meivaram, as by payment of jodi or quit rent, without a right to collect rents from the ryots of the estate would not convert a ryot into a landholder under the Act. Spencer, J., pointed out that the case before him was one of simultaneous grant of kudivaram and a part of the melvaram. The learned Judge referred to the principle laid down in Gadadara Das Bavaji v. Suranarayana Patnaik : (1920)38MLJ342 that:
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 owners, no matter how insignificant may be the interest he reserves for himself.
16. That was why we recorded earlier that Exhibit B-5 did not result in a transfer of ownership of a portion of the estate as such. The landholder retained an interest for himself, an interest in melwaram.
17. We hold that the petitioner in O.P. No. 3 of 1953 as the legal representatives of Appaswami were not landholders. The facts that subsequent to Exhibit B-5 this branch of the family conveyed their rights in favour of alienee subject to collection of what was styled thirva from them every year could not make them landholders, if Exhibit B-5, did not. As we have pointed out earlier, under Exhibit Br5, the position of Appaswami was only that of a ryot and not a landholder.
18. The claim in O.P. No. 3 of 1953 should have been dismissed. The order of the Tribunal is set aside and the appeal is allowed with costs.