SIR JOHN WALLIS:
The main question in all these consolidated appeals from judgments of the Madras High Court is whether the plaintiffs who are zamindars of permanently settled estates are entitled to resume the suit lands which had been held by village karnams or accountants as part of their remuneration and had been enfranchised by the Government under S.17, Madras Proprietary Estates Village Service Act 2 of 1894. From the earliest times, as stated at p.84 of the Fifth Report, village officers and servants have received, together with other emoluments, grants of land wholly or partially exempted by Government from the payment of land revenue in lieu of wages for their services. In 1894 the Madras Government, having decided to substitute a system of payment by salaries, provided by Legislation for the imposition of cesses to meet these salaries; and at the same time took power under S. 17 to enfranchise these inams in permanently settled estates, as hereinafter explained.
In 1922 the proprietors of the Telaprole and Ventrapragada estates, which are parts of the former permanently settled Nuzvid zamindary, which was partitioned in 1879, instituted a large number of suits in the Courts of the District Munsifs of Nuzvid and Gudivada, the appropriate jurisdictions, disputing the right of the Government to enfranchise the suit lands under S.17, Madras Act 2 of 1894, already mentioned, and claiming to recover possession of them under the proviso to that section on the ground that they had been granted either after or before the Permanent Settlement in 1802, by the plaintiffs' predecessors for village service, and that after the enfranchisement the village servants had refused to perform their services. Appeals were preferred from the decrees of the District Munsif of Nuzvid to the Subordinate Court of Bezwada which affirmed the decrees of the Court below decreeing the suits, and from the decrees of the District Munsif of Gudivada dismissing the suits to the Subordinate Court of Masulipatam which dismissed the appeals. From these decrees second appeals were taken to the High Court. In these appeals the learned Judges upheld the contention of the Government that the Government were entitled to enfranchise lands granted to village karnams free of quit-rent prior to the Permanent Settlement because they were within the reservation in respect of lakhiraj lands in S. 4, Permanent Settlement Regulation, 25 of 1802 and allowed the appeals, and dismissed plaintiffs' suits; but in 98 cases, where lands had been so granted subject to the payment of a kattubadi or quit-rent, they held that the Government had no right to enfranchise them under S.17 already mentioned as they were not included in the reservation, and that the plaintiffs were entitled to resume them.
From these 98 decrees of the High Court in second appeal, the Secretary of State for India in Cuncil has preferred these consolidated appeals to His Majesty in Council after obtaining a certificate from the High Court that they were appealable under S.109 (c), Civil P.C., as involving an important question of law. In order to see how this question arises their Lordships will refer in the first place to the terms of S.17, and at the same time will deal with the other important question as to its construction raised by the learned counsel for the appellant. This is the first section in Chap.3 of the Act which is headed "Enfranchisement of Village Service Inams". The enfranchisement of inams by the Inam Commissioner under the Inam Rules has been going on ever since the sixties of last century, and consists in releasing the lands from service and renouncing the reversionary rights of the State and confirming the inam to the grantee, his heirs and assigns to dispose of as they might think proper subject to the payment of a quit-rent and also in some cases, of a pecuniary payment. The Inam Statement on which the enfranchisement was based, and the Inam Register which records and evidences it have often come under the consideration of the Board.
As may be gathered from the section, some village service inams in Government villages, which are by far the most numerous in the Madras Presidency, had prior to the passing of the Act been enfranchised in this way, either under the Inam Rules or other rules made in that behalf, and the section directs that enfranchisements under the Act are to be made in the same way and to be subject to the payment of quit-rent. Before introducing the new system of remuneration into permanently settled estates, it was considered desirable to take statutory authority for enfranchising these inams with a view to avoiding possible litigation but that object has been imperfectly attained owing to the way in which the section has been construed in the Courts below. In construing this section and also the provisions of S.4, Madras Permanent Settlement Regulation, 25 of 1802, on which so much is found to turn, it is necessary to bear in mind that every inam in the original sense of that term is an alienation or assignment; by the State of the land revenue of the specified land and the right to realize it. And in consequence all such lands from the revenue point of view are regarded as "alienated lands" and are so described in the preamble to the Permanent Settlement Regulation, 25 of 1802, whether or not the inam is made subject to the payment of an annual fixed payment under the name of jodi kattubadi or quitrent. Where no quit-rent is reserved the lands are lakhiraj in the sense of being totally exempt from land revenue. Where a quit-rent is reserved these are only partially exempt because the inamdar has to pay the Government part of the land revenue in the shape of a quit-rent. There is in their Lordships' opinion no apparent reason why the power of enfranchisement should have been conferred in the one case and withheld in the other, but that is the effect of the judgments now under appeal S.17 is as follows :
If the remuneration of a village-office consists in whole or in part of lands, or assignments of revenue payable in respect of lands, granted or continued in respect of or annexed to such village-office by the State, the Government may enfranchise the said lands from the condition of service by the imposition of quit-rent under the rules for the time being in force in respect of the enfranchisement of village-service inams in villages not permanently settled or under such rules as the Government may lay down in this behalf; such enfranchisements shall take effect from such date as the Government may notify : Provided that the said enfranchisement shall be applicable to all lands or assignments as aforesaid even though, at the time this Act comes into force, they may not be devoted to the purpose for which they were originally granted. And provided, further, that any lands or emoluments derived from lands which may have been granted by the proprietor for the remuneration of village service and which are still so held or enjoyed may be resumed by the grantor or his representative.
Under the terms of the section, enfranchisement is authorized where the remuneration of the village service consists of lands "granted or continued in respect of or annexed to such village office by the State" or when it consists of assignments of revenue payable in respect of lands so "granted or continued". As in all these cases the village servants, as part of their remuneration, had been assigned the revenues payable in respect of the lands forming part of their remuneration as well as the lands themselves, and as such assignments can only have been made by the State, it might appear that all such assignments of revenue must have been made and continued by the State within the meaning of the section, and that it empowered the Government to enfranchise. It is, however, unnecessary to decide this question as no such case was set up. The Government's case was that the lands "had been continued by the State" within the meaning of the section, as they were not in a position to set up that the lands had been granted by the State, because as observed by the Board in 62 IA 166 (1)
In the case of ancient grants made before 1802 it is well nigh impossible, in the absence of the document granting the property, to discover with any reasonable certainty the date and other particulars of its origin.
To prove the "continuance" of the lands, which is the case set up here, the Government contend that all these village service lands, whether or not subject to a payment of kattubadi or quit-rent, are excluded from the Permanent Settlement by S.4, Regn. 25 of 1802, which reserves to Government full power of "continuing or abolishing them", the lands not subject to quit-rent being lakhiraj lands, and the lands subject to the payment of quit-rent falling within the description of "all other lands paying only favourable quit-rents" within the meaning of the section.
The expression "continuing or abolishing" is better suited to the other "articles of revenue" included in S.4 of Permanent Settlement Regulation, than to the two last articles, "lakhiraj lands" and "lands paying only favourable quit-rents," but as applied to lands must, in their Lordships' opinion, be read as meaning continuing the tenure on which the lands were held or abolishing it by resuming the lands. Their Lordships are also of opinion that the word "continued" must have the same meaning in S.17 of the present Act. The framers of the section must have contemplated that continuance would be proved, as it has been in these cases, by reference to the provisions of S.4, Permanent Settlement Regulation, and indeed most probably took the word "continued" from that section, so that, assuming lands paying only favourable quit-rents to be included in the reservation in S.4 of the Regulation, their Lordships are of opinion that continuance by the State has been proved in these cases. Whether they are so excluded from the permanent settlement is the important question in respect of which the certificate has been granted, and their Lordships will give their reasons later for holding that they are excluded. The learned Judges no doubt took the same view of the meaning of the word 'continued' in affirming the right to enfranchise in cases where no kattubadi had been reserved, but those judgments are not included in the record, as they are not the subject of these appeals; and Ramesam, J. had already ruled to the same effect in the extract from his judgment set out at p.167 of the report in Vasireddi's case.(1)
Assuming that the S. 17 of the Act confers authority to enfranchise on the ground that the lands were continued by the State, the next question is what is the effect of the second proviso which has been often construed as entitling the proprietors of estates to resume lands granted for village service by their predecessors prior to the permanent settlement, although the body of the section apparently authorizes their enfranchisement. That was the construction on which the Board proceeded in the case just mentioned, and it had not been challenged in the argument before the Board on behalf of the Secretary of State who was the respondent in that appeal. It has however been explained by Mr. Pringle, who was counsel for the defendant in that case and this, that the objection was to have been taken if the Board had not intimated that the appellant Zamindar had failed to prove that the suit lands had been granted by one of his predecessors, and it is quite clear that the Board did not adjudicate upon it. The learned counsel for the appellant have now raised the contention that reading the proviso, as it must be read, in the light of the definitions of 'proprietor' and 'estate' in S.4 of the Act, the right of resumption by a proprietor is limited in the case of permanently settled estates to grants made by a proprietor of the estate after the permanent settlement, that is in this case after December 1802 :
Proprietor means any person in whose name any estate is for the time being registered in the office of the Collector of the district wherein the estate is situated.
The definition of 'estate,' so far as it is applicable to this case is as follows : Estate ' means :
(a) any permanently settled estate, whether zamindari, jaghir, mitta or palaiyam.
Their Lordships have no doubt that this construction of the proviso gives effect to the intention of the legislature. The; elaborate provisions in the body of the section, on a careful examination, prove to have been specially framed to obviate the necessity of raising the question by whom these ancient grants were made, as already explained. On the other hand, grants made subsequently to the permanent settlement by proprietors, who under that settlement are also assignees of the land revenue are not made by the State, and it is to such grants only that the proviso applies. It is unfortunate that these grants by the Zamindar are often spoken of as post settlement inams, when they are not inams at all as they are not assignments by the State of its land revenue, but are made by persons to whom the State has already assigned the land revenue. It only remains to deal with the ruling which has been certified by the High Court as involving an important question of law. That question is stated with great precision by Ramesam, J., in one of the judgments under appeal which is printed at p.140 of the record :
ln the case of both these inams the Subordinate Judge found that the Inams are subject to the payment of kattubadi. This raises a new question of law. If at the time of the permanent settlement they were subject to kattubadi payable to the Zamindar, the Zamindar then representing the Government, the lands cannot be said to be lakhiraj. The only question therefore is whether they would come under the second heading in S.4 of the Regulation. Can they be regarded as lands paying only a small quit-rent What is the effect of the word 'only'? The contention for the Zamindar is that the lands must be subject to one burden only, namely the payment of light quit-rent. If they are subject to an additional burden, namely rendering of services, they are subject to two burdens, namely payment of quit-rent and rendering of services; and such inams do not fall under S.4 of the Regulation and cannot be regarded as excluded from the assets of the zamindari. The meaning of the word 'only' was considered by Sankaran Nair, J., in 38 Mad 620 (2) at p. 625. His view is that if the land is subject to two burdens, whatever the nature of the services might be, the land cannot be regarded as excluded from the assets. Tyabji, J., expresses a slightly different view at p. 628. He thought that if the lands were burdened with services due to the Government, they must be regarded as excluded. We prefer to follow Sankaran Nair, J.'s view and hold that the suit inams cannot be regarded as excluded from the zamindari.
On reference to the report all that Sankaran Nair, J. is found to have said on the subject is that the provision in S.4 of Regn. 25 of 1802 as to all other lands paying only favourable quit-rents obviously does not include lands which are held on condition of paying quit-rent, and also on condition of rendering certain services in addition to that rent.
Such lands, as Ramesam, J. puts it, are thus subject to two burdens and therefore all service inams which are subject to the payment are not lands 'subject only to the payment of favourable quit-rents,' and do not come within the reservation in S.4 of Regn. 25 of 1802. Now in the first place in their Lordships' opinion it is a fallacy to speak of the imposition of quit-rent in this case as a burden. The karnam in lieu of wages is granted the land together with an assignment by the State of the land revenues of the land subject to the payment of a quit-rent, that is to say he is not granted a total but only a partial exemption from the land revenue on the land. Far from being a burden this assignment so limited is a part of his remuneration. Secondly it appears to be inadmissible, when the Legislature has in the preamble expressed its intention to exclude all alienated land from the permanent settlement, to hold that it has sufficiently manifested Its intention by the use in a badly drafted section of the words "paying only favourable quit rents", to exclude from the reservation for no apparent reason the very large class of service inams which are subject to the payment of quit-rent, especially as due effect may otherwise be given to the use of the word "only". The drafting of this section has not escaped criticism, and is so very inferior to the drafting of the rest of the Regulation as to suggest that this section, which combines the provisions of Ss. 35 and 36, Bengal Permanent Settlement Regn. 8 of 1793, was substituted at a later stage for the original draft. The Madras Government had been directed to follow the necessary modification with the terms of the Bengal Permanent Settlement, and as will be seen there were good reasons for thinking that S.36 of that Regulation required some modification in Madras S.4 is in the following terms, the articles of revenue not now in question being omitted :
The Government having reserved to itself the entire exercise of its discretion in continuing or abolishing, temporarily or permanently, the articles of revenue included, according to the custom and practice of the country, under the several heads .... of lakhiraj lands (or lands exempt from the payment of public revenue), and of all other lands paying only favourable quit-rents-the permanent assessment of the land-tax shah be made exclusively of the said articles now recited.
The corresponding S.36, Bengal Regulation is as follows :
The assessment is to be fixed independent and exclusive of all lakhirajah lands, whether exempted or not from the khiraj (or public revenue) with or without due authority.
In Madras all alienations of laud revenue take the form of inams with or without reservation of quit-rent. In these circumstances the framers of the Madras section decided, perhaps not very happily, to retain the use of the word lakhiraj for lands without any reservation of quit-rent and so totally exempt from land revenue, and to provide under another "article" for "all other lands paying only a favourable quit-rent," and so only partially exempt from land revenue. If the Bengal Regulation had been reproduced, it might have been contended that lands paying quit-rents were not lakhiraj, not being totally but only partially exempt from land revenue ; and it would appear to have been thought desirable to provide expressly that the reservation extended to lands which though not wholly exempt from land revenue paid only favourable quitrents instead of paying the full revenue, As regards the expression "favourable quit-rents," the word inam means favour, and any quit-rent falling substantially short of the full assessment is a favourable quit-rent. This, in their Lordships' opinion, is a sufficient explanation of the use of the word "only," which for reasons already given could not receive the construction put upon it for the first time in construing the Act of 1894 now under consideration in the absence of any other possible explanation. Their Lordships are also unable to accept the further contention of the learned counsel for the respondents that the special provisions of the Bengal Regulation as to chakran lands, or lands granted in lieu of wages, can be read into S. 4 of the Madras Regulation, and have not been shown any sufficient reason for differing from the findings of the High Court, but in all these appeals the inams were pre- settlement grants not so governed by this ruling.
Their Lordships will therefore humbly advise His Majesty that the appeals of the Secretary of State in all these cases be allowed and the decrees of the High Court and of the lower Courts in favour of the respondents be set aside, and the suits dismissed. The respondents will pay the appellant's costs throughout.