JUDGEMENT Appeal (No. 40 of 1941) from a decree of the High Court (January 26, 1940), which reversed a decree of the Subordinate Judge of Tanjore (September 1, 1936). The following facts are taken from the judgment of the Judicial Committee This appeal arose out of a suit for a declaration that the inam village of Someswarapuram was exempt from liability to pay water cess ; and also for an order directing the defendant, the Secretary of State for India, the appellant before the Board, to refund the amount paid by the plaintiff as water cess for fasli 1340 ( 1930-- 1931), which the Government had levied under the Madras Irrigation Cess Act (Act VII. of 1865) (hereinafter referred to as "the Act "). The suit was instituted by T. N. Kali-Doss, who was the receiver of a half-share of the suit village which had been allotted to one A. L. A. R. Arunachellam Chettiar, the thirty-first defendant in O. S. 3 of 1919 in the District Court of Tanjore, West. While the appeal to the High Court was pending, the plaintiff was discharged from his office as receiver, and the respondents before the Board, on whom the rights to the property had devolved, were substituted in his place as appellants. The owners of the suit village were entitled to irrigation free of any charge for water over what was called the dittam (mamool) area, which, with respect to the plaintiffs share, was 103-8 acres, single crop, and 22.36 acres, double crop. The Government had not charged cess for any water taken or used for the irrigation to that extent. The dispute in the case related to the Governments right to levy the cess for water taken for the excess area irrigated by the plaintiff. The Government had been collecting cess for the excess water taken for more than thirty years. The payment was attributed to a mistaken notion of the irrigation rights of the plaintiff. It was not contended, however, that that would stand in the way of his claiming the relief’s asked for in the plaint, if he was entitled to do so under the Act. The payment was attributed to a mistaken notion of the irrigation rights of the plaintiff. It was not contended, however, that that would stand in the way of his claiming the relief’s asked for in the plaint, if he was entitled to do so under the Act. The law bearing on the point was contained in s. 1 (a), first proviso, of the Act, which runs as follows "Whenever water is supplied or used for "purposes of irrigation from any river, stream, channel, tank "or work belonging to, or constructed by Government .... "it shall be lawful for the Government .... to levy at "pleasure on the land so irrigated a separate cess for such "water .... Provided that where a zamindar or inamdar "or any other description of landholder not holding under "ryotwari settlement is by virtue of engagements with the "Government entitled to irrigation free of separate charge, "no cess under this Act shall be imposed for water supplied "to the extent of this right and no more” The questions arising for determination in this appeal were (1.) whether the Government had established that water was supplied to, or used by, the respondents, from what might be generally described as a Government source of irrigation; if that was answered in the affirmative, then, (2.) whether the respondents had established that they were entitled the virtue of an engagement with the Government to any, and if so, what irrigation free of separate charge under the first proviso to s. 1 (a) of the Act, in respect of their half-share in the village of Someswarapuram. With regard to the mode of irrigation followed in the village, Someswarapuram was described in the plaint as an " entire inam village," which meant that the whole village was granted as inam (such grants consisting of a whole village or more than one village were technically called "major "inams" to distinguish them from "minor inams," which were grants of something less than a village see Secretary of State for India in Council v. Mallayya (( 1932) 63 M. L. J. 649.)). It was a hamlet of the village of Ichangudi, which formed part of what was known as the "Tanjore Palace Estate," granted by the British Government to the heirs of the last Raja of Tanjore in 1862. It was a hamlet of the village of Ichangudi, which formed part of what was known as the "Tanjore Palace Estate," granted by the British Government to the heirs of the last Raja of Tanjore in 1862. The village lay in the delta of the Cauvery river, about one mile north of its northern bank and separated from it by the village of Ichangudi. The lands of the village were irrigated by water taken from the river by two channels known as Kila Vaikkal (lower channel) and Turi Vadi Vaikkal, known as Turiar (Turi river), the head sluices of which were maintained by the Government. Kila Vaikkal took off directly from the river within Ichangudi limits, and its water passed before it reached Someswarapuram through a sluice maintained by the Government and flowed north through Someswarapuram and Virmangudi, a Government village, into a channel called the Manniar channel, which irrigated several Government villages. Turi Vadi Vaikkal was a drainage channel which took off in a Government village about six miles west of Someswarapuram and flowed in a north-easterly direction through Government villages. Before it reached the suit village it was dammed up in a Government village, called Perumur, by a masonry weir wherefrom branched off a sub-channel, Mettu Vaikkal No. 1, which flowed into and irrigated certain wet lands in the village. The Turi Vadi Vaikkal was dammed up further along its course in the suit village itself, and the water was diverted into another channel known as Mettu Vaikkal No. 2, which irrigated the other lands in the village. The Turi Vadi Vaikkal continued its course beyond the taking off points of the two sub-channels and finally fell into Manniar, within the limits of Viramangudi. The dams appeared to have been constructed more than a century ago by the inamdars and were maintained by them, as appeared from the irrigation memoir of the village. The Paimash account of 1830 treated the irrigation channels in the village as part of the village. As already stated, the head sluices of the channels belonged to the Government and were maintained by them, whle the supply channels were maintained by the inamdars and the kudivaramdars. The water channels had been in existence admittedly for over a hundred years. The Paimash account of 1830 treated the irrigation channels in the village as part of the village. As already stated, the head sluices of the channels belonged to the Government and were maintained by them, whle the supply channels were maintained by the inamdars and the kudivaramdars. The water channels had been in existence admittedly for over a hundred years. With regard to the " grant " under which the village came to be owned by its original holders, the history of the grant of Someswarapuram and the other villages which formed the private estate of the last Raja of Tanjore, and was ordinarily known as the " Tanjore Palace Estate” was well known and would be found in various reported decisions of the Madras High Court see Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (i) ; Sundaram Ayyar v. Ramachandra Ayyar (( 1917) I. L. R. 40 M. 389.) ; and Maharaja of Kolhapur v. Sundaram Ayyar ( 1929) I. L. R. 48 M. 1.). It would be found also in the decision of the Board in Srimant Chota Raja Saheb Mohitai v. Sundaram Ayyar (( 1936) L.R. 631. A. 224,228.), on appeal from the decision in Maharaja of Kolhapur v. Sundaram Ayyar (( 1929) I. L. R. 48 M. 1.). In 1799, Serfoji, the then Raja of Tanjore, surrendered his territory into the hands of the East India Company, but he was allowed to retain possession of certain villages and lands which constituted his private property. When his son, the last Raja, died in 1855 without leaving male issue, the Company took possession of all his properties, including his private property. Thereupon litigation ensued with respect to the latter, and it was finally settled by the Judicial Committee, in 1859, that the seizure was an act of State, the propriety of which could not be questioned in a Civil Court see Secretary of State in Council of India v. Kamachee Boye Sahaba (( 1859) 7 Moo. I. A. 476.). After some time the Government of India, which had succeeded the East India Company, " sanctioned the relinquishment of "the whole of the landed property of the Tanjore Raj in "favour of the heirs of the late Raja " see Mohitai’s case (( 1863) 3 M. H. C. R. 424.). I. A. 476.). After some time the Government of India, which had succeeded the East India Company, " sanctioned the relinquishment of "the whole of the landed property of the Tanjore Raj in "favour of the heirs of the late Raja " see Mohitai’s case (( 1863) 3 M. H. C. R. 424.). Under instructions from the Government of India, the Government of Madras, on August 21, 1862, passed an order the material part of which was as follows "In Colonel Durands "letter above recorded, the Government of India have "furnished their instructions with reference to the disposal "of the landed property of the Tanjore Raj, regarding which "this Government addressed them under date the 17th May "last. Their decision is to the effect, that since it is doubtful whether the lands in question can be legally dealt with as State property, and since the plea in equity and policy, " for treating them as the private property of the Raja is so "strong that it commands the unanimous support of the "members of the Madras Government/ the whole of the "lands are to be relinquished in favour of the heirs of the late "Raja " (2). The Tanjore Palace Estate came into being as a result of that grant. The main question for the Board to consider in this appeal was, did that grant constitute an "engagement" with the Government entitling the grantees to take water for free irrigation, that was, in other words, what was the nature of the grant, and what right, if any, of taking water for irrigation " free of separate charge " passed under it ? The Subordinate Judge held that the respondents were not entitled to free irrigation to any extent in excess of the dittam shown in the paimash accounts, and he dismissed the suit. The Subordinate Judge held that the respondents were not entitled to free irrigation to any extent in excess of the dittam shown in the paimash accounts, and he dismissed the suit. On appeal the High Court (Pandrang Row and Abdur Rahman J J,), proceeding on the basis that the water in the channels was supplied from a Government source, came to the conclusion that what was granted in 1862 was what the Raja of Tanjore possessed as private property before he died in 1855, and that the fact that he was a sovereign Prince who privately owned the suit village, as well as others, was to- be borne in mind in determining the nature and extent of the rights which he enjoyed and which were conferred in their entirety on the widow and heirs of the Raja by the Government in 1862. They held that the respondents were entitled to claim the benefit of the first proviso to s. 1 of the Act to the extent of the quantity of water flowing along the Kila Vaikkal and the Mettu Vaikkals Nos. 1 and 2 in the accustomed manner, and that their rights to free irrigation were not limited to the extent or area of the dittam lands, and they accordingly allowed the appeal. 1943. Feb. 16, 17. J. M. Tucker K.C., Pringle and Khambatta for the appellant. The respondents claim being for a declaration that they were under no liability to pay water cess for water used for irrigating the lands in Someswarapuram village, the onus is on them to establish either, [a) that the water in question was not supplied or used for such purpose from any river, stream, channel, tank or work belonging to, or constructed by, the Government, or (b) that they were, by virtue of engagements with the Government, entitled to irrigation free of separate charge, and were so entitled to such irrigation to the extent to which they were in fact irrigating their lands at the material time. They have not discharged this onus. There was no case of an engagement with the Government. They have not discharged this onus. There was no case of an engagement with the Government. As this was a grant in inam, that is, something1 different from what the original Raja had, the respondents are not persons who could be granted rights analogous to those under the Urlam case (( 1917) L. R. 44 I. A. 166.) which enabled the Board to spell out rights of water arising from an engagement with the Government. If the first proviso to s. I (a) of the Cess Act cannot be relied on, then the Government has only to show that the water which has irrigated the village is from a Government river or channel. The burden of proof in proceedings of this nature is on the respondents to show the contrary. The inamdar here is a person who has a right to the revenue of the land, and therefore—the point left open in the Swamigal case (( 1941) L. R. 69 I. A. 22.)—cannot be a person on exactly the same footing as an inamdar who is found to hold the soil in the same way as a Zemindar. The Urlam case (( 1917) L. R. 44 I. A. 166.) has exempted Zemindars from water cess, and also inamdars holding under Zemindars. Then the Swamigal case (( 1941) L. R. 69 I. A. 22.) has exempted inamdars in whom there is a full right to the soil. This appeal will be a convenient way of getting the next point decided—whether an inamdar with the melvaram only is exempted. The trial judge decided that as the inamdar here has only the melvaram he has no such right as can attract the principles of the Urlam case (1). The High Court reversed that decision. The nature, of the grant of 1862 is to be found in Sundaram Ayyar v. Ramachandra Ayyar (( 1916) I. L. R. 40 M. 389, 397.). There is an important distinction between a grant of the full proprietary right in land and a grant limited to the melvaram, that is, a grant of the States right to take a share of the produce. Where only the melvaram is granted there is not such ,an interest in the land granted as would attract the principles of the Urlam decision (1) Upadrashta Venkata Sastrulu v. Divi Seetharamudu (( 1919) L. R. 46 I. A. 123, 127.). Where only the melvaram is granted there is not such ,an interest in the land granted as would attract the principles of the Urlam decision (1) Upadrashta Venkata Sastrulu v. Divi Seetharamudu (( 1919) L. R. 46 I. A. 123, 127.). If the inamdar in the present case, notwithstanding the admission that this was a grant in inam, is a person who has the full proprietary rights in the soil, then the Swamigal case (L. R. 69 I. A. 22.) would determine this case against the respondents. If the Board feel that in any event this would not be a convenient case in which to deal with the first point of principle— whether an inamdar with the melvaram only is exempted— and that because of the grant of 1862 the inamdar here must be treated as though he is the owner of the proprietary right in the soil, then that point must be given up, but reserved for consideration in any future case where material. The inamdar has to show (a) that he is entitled to irrigation, (b) free of separate charge, and (c) that his right in that respect arises by virtue of an engagement " with " the Government. In other words, the engagement must be one of his as well as one of the Governments. Whatever may have been the extent or nature of the grant made by the Government in 1862 to the predecessors in title of the respondents, no revenue or other consideration was reserved by the grant. Such a grant by the Government did not constitute an engagement " with " the Government by any person. [Reference was made to Mohitais case (L. R. 63 I. A. 224, 227-228.).] Whatever view be taken, whether this was a re-grant or a mere restoration of something wrongly taken away, it is merely a pure gift, and involves no obligation beyond the gift at all. [On the nature of the grant reference was made to Secretary of State in Council of India v. Kamachee Boye Sahaba (7 Moo. I. A. 476.), and on the meaning of “engagement with "the Government " to the Urlam case (L. R. 44 I. A. 166.).] Pringle following. [On the nature of the grant reference was made to Secretary of State in Council of India v. Kamachee Boye Sahaba (7 Moo. I. A. 476.), and on the meaning of “engagement with "the Government " to the Urlam case (L. R. 44 I. A. 166.).] Pringle following. There are two points (a) whether the facts of this case are such as to bring the proprietary interest, for it is that, within the proviso to the Act—whether it could be truly said that there was an engagement; and (b) whether the Urlam case (4) test of physical features—the physical capacities of the channels, continuous and apparent easements —can apply here having regard to the known physical features in the locality. As to (a) (supra) it is established that this was water from a Government source ; then, " nothing "will pass to the grantee but by clear and express words " Brooms Legal Maxims, 8th ed., pp. 453, 463 ; Feather v. The Queen (( 1865) 6 B. & S. 257.), and "a grant .... is always construed, unless "it be a Crown grant, against the grantor " Basiram Saha Roy v. Ram Ratan Roy (( 1927) L. R. 54 I. A. 196, 203.). The principle that everything goes if not expressed in the grant cannot be applied in India in respect of land revenue. In fact it is just the opposite. Land revenue belongs to the Government, and unless there is an express grant of land free of revenue the liability for it remains. The distinction between property and assessability must be observed Secretary of State for India v. Maharaja of Burdwan (( 1921) L. R. 48 I. A. 565, 576.). Little is known about the Tanjore Palace Estate between 1799 and 1855, the date of the death of the last Raja Secretary of State in Council of India v. Kamachee Boye Sahaba (7 Moo. I. A. 476.); Sundaram Ayyar v. Ramachandra Ayyar (I. L. R. 40 M. 389, 397.); the terms on which it was held are not known, except that it was held by the Raja and described as his private property. I. A. 476.); Sundaram Ayyar v. Ramachandra Ayyar (I. L. R. 40 M. 389, 397.); the terms on which it was held are not known, except that it was held by the Raja and described as his private property. In 1862 there is a grant of the entire property to certain relations, but nothing is said about land revenue, and it is submitted, relying on the general principle of construing a Crown grant, that the position in 1862 was that the Government had full rights to impose any revenue they thought fit. It was called an unsettled estate. This is a case in which there has to be proved an engagement both uder the general law and under the terms of the enactment. Where the grant is by Government the field for inference against the grantor is cut out entirely. On the available materials there is no justification for finding that the grant of 1862 was revenue free, and included a right to future freedom from taxation. As regards the second point (supra), and assuming that there is an engagement of taking water free of separate charge up to the limit of what is necessary, the respondents are not entitled to the measure of free water on the analogy of the Urlam case (L. R. 44 I. A. 166.). The respondents did not appear. Apr. 15. The judgment of their Lordships was delivered by SIR MADHAVAN NAIR, who stated the facts set out above, and continued Their Lordships regret that the respondents have not appeared before the Board, but counsel for the appellant have placed before them fairly and fully all the material facts. Neither in the plaint, nor in the issue, which was general, namely, "is the plaintiff entitled to free irrigation "without liability to pay water cess to the Government? " was the plaintiffs liability to pay the cess specifically under the Act raised, but the question was raised by the defendant in his written statement, and was dealt with, but very shortly, by the Subordinate Judge at the close of his judgment. The plaintiff claimed immunity from payment on the grounds that the beds of the channels belonged to him, that as a riparian owner he was entitled to take water freely, and that he had also rights based on easement and prescription. The plaintiff claimed immunity from payment on the grounds that the beds of the channels belonged to him, that as a riparian owner he was entitled to take water freely, and that he had also rights based on easement and prescription. The defendant, after answering these specific pleas, contended, in effect, that the water used by the plaintiff for irrigation came from a Government source, that the grant of the village conveyed to the grantees only the right to collect the full land revenue, i.e., the melvaram due on the lands, that it did not constitute an assignment of the lands, that the plaintiff can at best claim free irrigation for only a single or double crop, as the case may be, on such of the revenue-paying lands as were registered at the time of the grant, and that the grant did not constitute an engagement express or implied of the kind contemplated by the first proviso to s. i of the Act. The High Court observes that this has been the attitude of the Government not only in this, but in all other cases relating to inams. Such a contention was disallowed recently by the Board in the Swamigal case (i) in respect of an inam granted in 1753, confirmed by the inam commissioner by a deed granted on July 27, 1865, in view of the opinion arrived at by their Lordships "that the inam right extended to all the village "lands." Substantially the same question arises for decision in the present case also, though in a somewhat different setting. In the present case the estate was admittedly not dealt with by any inam commissioner or settlement officer, and the terms of the grant are available, unlike the grant of 1753 in the Swamigal case (1), where they had to be gleaned from the evidence which consisted "in substance of the pro ceedings of the inam commission." Another point of difference is that it has been held by the High Court of Madras that the grant of 1862 consisted only of an assignment of the land revenue of the villages (see Sundaram Ayyar v. Ramachandra Ayyar (I. L. R. 40 M. 389.)), whereas, in the Swamigal case (L. R. 69 I. A. 22.) the Board had to find with respect to the grant in that case if this was so or not. Notwithstanding these differences, it will be found eventually that the central question for decision in this, as in other cases of this kind, always will be what is the extent, if any, of the right of taking water that passed under the particular grant in each case—the rule expounded by the Board in the judgment delivered by Lord Parker of Waddington in the Urlam decision (L. R. 44 I. A. 166.), which has become a classic in cases arising under the first section of the Act. The decision in each case would prima facie depend on the terms of the grant, or those fixed by the Inam Settlement. The Subordinate Judge held, that the plaintiffs claim based on prescription had not been made out, and that the was not entitled to irrigate " any extent he likes in excess of the mamool "extent by virtue of any right of easement." For the latter conclusion he relied on Chidambara Rao v. Secretary of State for India in Council (( 1902) I. L. R. 26 M. 66.), where it was held that an inamdar who irrigates with water from Government source from which the land was irrigated at the time of the grant, land beyond the extent mentioned in the title deed as wet, is liable to be assessed under the Act for such extra cultivation. As regards the claim to irrigate based on riparian ownership, he held, with respect to Kila Vaikkal, that though the plaintiff was entitled to half the bed of the river at the place where it branched off, he could not claim such right with respect to Someswarapuram lands, as the village lay at an unreasonably long distance, i.e., about a mile, from the river, and with respect to the other two channels also, he could not claim the rights as they were not natural streams but only artificial watercourses. Even if this was not so, he held that the plaintiffs rights could not extend beyond a few feet from the banks of the channels. Even if this was not so, he held that the plaintiffs rights could not extend beyond a few feet from the banks of the channels. Dealing with the question specifically raised by the defendant under the Act, the Subordinate Judge held that Turi Vaikkal, which irrigated the major portion of the village, belonged to the Government, that with respect to it the plaintiff was at liberty to take water to any field he liked, but he should not exceed the dittam or mamool area, and that, though the water at the place where Kila Vaikkal branched off from the river did not come from a Government source, as he owned half the river bed, he as the inamdar was bound "to pass it on "to that source" and "his use is therefore limited to that "obligation." It may be mentioned here that counsel for the appellant was not prepared to support this reasoning. The Subordinate Judge further held that as the plaintiff was entitled only to the melvaram there could be no case of any "engagement" with him within the meaning of the proviso to s. 1 of the Act. As the net result of his findings was that the plaintiff was entitled to free irrigation only with respect to the dittam extent, he dismissed the suit on appeal, the learned judges of the High Court, after pointing out that the question of riparian rights did not merit much attention, and that the most important point in the case seemed to be the scope of the grant made by the Government of Madras in 1862, addressed themselves to the consideration of two questions, which they formulated thus (1.) " Is "the water that passes through the channels referred to above, "the Kila Vaikk Is and the Mettu Vaikkals, water supplied -from a Government source ; and (2.) if the water is from a "Government source, is there any engagement by virtue of " which the use of such water is not to be charged with cess” ? On the first question, they held that the water in the Mettu Vaikkals Nos. On the first question, they held that the water in the Mettu Vaikkals Nos. 1 and 2 was supplied from a Government source as these took it from Turi Vadi Vaikkal, which belonged to Government, and that it was safer to proceed on the basis that the water in the Kila Vaikkal was also water supplied from " a work belonging to Government," as it passed through a sluice owned by Government before passing on to the lands in the village. On the second question, they held that "the "entire Government order shows the clear and unequivocal "intention of the Government to restore in all its integrity "what was taken away by an Act of State on the death of the "Raja without reserving for the Crown anything capable "of private ownership which was being enjoyed by the last "Raja as private property," and that " along with the melvaram that was undoubtedly granted there must have been "a grant of water rights also . . . ." It was not disputed that some right to irrigation free of charge must have passed under the grant. The learned judges held, as was decided by this Board in the Urlam case (L. R. 44 I. A. 166.), that the right or easement of taking water which went with the grant " must be measured "by the physical conditions such as the size of the channels or "the nature and extent of the sluices and weirs governing the "amount of water entering the channels and not by the "purposes for which the grantor or his tenants have been "accustomed to the use of the water prior to the date of the "grant." Accordingly, they set aside the decision of the Subordinate Judge, holding that the appellants (the present respondents) " are entitled to claim the benefit of the proviso "to s. 1 of the Act to the extent of the quantity of water " flowing along the channels—Kila Vaikkal and Mettu Vaikkals "in the accustomed manner and that their rights to free "irrigation are not limited to the extent or area of the dittam "wet lands." Various special features of the case were brought to the notice of the learned judges to show that principles laid down in the Urlam decision (L. R. 44 I. A. 166.) were inapplicable, but the arguments based on them were all overruled. These arguments were again pressed before the Board, and their Lordships will deal with them in the course of their judgment. Their Lordships agree with the High Court that the question of riparian rights is not of importance in this case, as the lands irrigated by Kila Vaikkal lie far away, separated from the river by the Ichangudi lands, and as the two channels, Mettu Vaikkals, Nos. I and 2; are artificial water courses, and further, as water is being taken not direct from the Turiar within the limits of the village, but by bunding it up at a place outside and within a Government village where no riparian right could be claimed. The important questions to be considered are, what is the nature of the grant made by the Government of Madras on August 21, 1862, to the heirs of the late Raja of Tanjore ? and what rights of taking water passed to the grantees under the grant ? Though the learned judges of the High Court seem to have some doubt as regards the character of the water taken by the Kila Vaikkal, whether it is water supplied or used from a Government source of irrigation, they have, as stated before, proceeded on the basis that it is water belonging to Government. Their Lordships will also proceed on this assumption, without however, deciding the question. As regards the two Mettu Vaikkals, there can be no question that the water in them belongs to Government. Their Lordships have already given the history of the grant of 1862. Nothing is mentioned in recorded history about the Palace estate villages—so far as their Lordships are aware— before 1799. In that year, when Serfogi, the father of the last Raja, ceded his territory to the East India Company, he was allowed to retain possession of his private estate. This is said to consist now of about two hundred villages. It is not known under what conditions he continued to hold the property. It must not be forgotten that Serfogi was a Sovereign Prince at that time, and the property was his private estate. Nothing has been brought to their Lordships notice to show that he held it subject to the payment of any revenue, or to show that his rights of enjoyment as proprietor of his estate were in any manner conditioned or limited by any terms. Nothing has been brought to their Lordships notice to show that he held it subject to the payment of any revenue, or to show that his rights of enjoyment as proprietor of his estate were in any manner conditioned or limited by any terms. Their Lordships must assume that he held the estate as its absolute owner with all the rights of enjoyment appertaining to such ownership. It was while the property was being thus held that it was seized with the Raj by the Company ; and some time after, the private estate was restored to the heirs of the last Raja in its entirety. In the language used by this Board in Srimant Chota Raja Saheb Mohitai v. Sunday am Ayyar (L. R. 63 I. A. 224, 228.), "on June.23, 1862, the Government of India, which had " succeeded the East India Company, informed the Government "of Madras that they sanctioned the relinquishment of the "whole of the landed property of the Tanjore Raj in favour "of the heirs of the late Raja." In the order passed by the Government of Madras under this instruction, on August 21, 1862, already quoted, the Madras Government says that the decision of the Government of India is to the effect that "the "whole of the lands are to be relinquished in favour of the heirs "of the late Raja/ The word " relinquished " is significant. This decision can have only one meaning, i.e., that the private property was restored to the heirs of the late Raja in all its integrity, and without reservation of any kind of right in favour of the Madras Government. The grant was an irresumeable inam Sundram Ayyar v. Ramachandra Ayyar (I. L. R. 40 M. 389.). The matter is put beyond any doubt if reference is made to the reasons given for making this relinquishment. The grant was an irresumeable inam Sundram Ayyar v. Ramachandra Ayyar (I. L. R. 40 M. 389.). The matter is put beyond any doubt if reference is made to the reasons given for making this relinquishment. It is said in the order that the lands are to be relinquished, "since it is doubtful whether the lands in question can be "legally dealt with as State property, and since the plea in "equity and policy for treating them as private property is "so strong that it commands the unanimous support of the "Madras Government/ It is clear to their Lordships that by this relinquishment the Government granted in, 1862 to the Rajas heirs what the Raja of Tanjore possessed as his private property in 1855, restoring to him his full proprietory rights over it. This construction of the grant does not contravene the rule of law brought to their Lordships notice, that grants by the Crown should be " construed most strictly "against the grantee and most beneficially for the Crown, so " that nothing will pass to the grantee but by clear and express "words " (see Brooms Maxims, 10th ed., p. 410, also Feather v. The Queen (6B.&S. 257.) and Basiram Saha Roy v. Ram Ratan Roy (L. R. 54 I. A. 196, 203.)) as the language of the grant, as their Lordships have endeavoured to show, is clear and unequivocal and can bear only the meaning put on it by them. It is said that the grantees of 1862 have been held in Sundaram Ayyar v. Ramachandra Ayyar (L. R. 63 I. A. 224, 228.) to have been given the land revenue alone, without the kudivaram rights. Their Lordships are not called on to express an opinion whether the villages are “estates " within the meaning of the Madras Estates Land Act, and they consider that their proper course is to construe the grant of 1862 on the materials to which they have referred. This argument would seem to mean that the grantees would not derive any right to water, certainly not any right to free irrigation, but that cannot be maintained. Having regard to the nature of the grant of 1862, their Lordships think that the Tanjore Palace. This argument would seem to mean that the grantees would not derive any right to water, certainly not any right to free irrigation, but that cannot be maintained. Having regard to the nature of the grant of 1862, their Lordships think that the Tanjore Palace. Estate, if treated as an inam, must be treated as a peculiar kind of inam—their Lordships observe that the word inam is nowhere used in the grant, and the estate appears commonly to have been spoken of as a mokhasa grant, which it is not—and that under it, amongst the rights obtained by the grantees, were included rights which entitled them to use the water for purposes of free irrigation from the sources from which it used to be taken before the grant. When Someswarapuram and other villages forming the Palace Estate were severed from the property of the Government and granted to the heirs of the Raja, the right to take water into the accustomed channels passed to the grantees by implication, by virtue of the grant. The real question is not whether any water right was granted, but what is the measure of that right ? The measure of that right and its limitations are of the kind so clearly defined in the Urlam decision (L. R. 44 I, A. 166.) and need not be repeated here. This brings their Lordships to consider the application of that decision to the facts of the present case, which was the main argument pressed before the Board. It was strenuously urged that the principle underlying that decision on which non-liability to pay cess for water taken for excess cultivation was based should not be extended to the present case for several reasons. In that case it was held that the sannad issued under the Permanent Settlement Regulation, XXV. It was strenuously urged that the principle underlying that decision on which non-liability to pay cess for water taken for excess cultivation was based should not be extended to the present case for several reasons. In that case it was held that the sannad issued under the Permanent Settlement Regulation, XXV. of 1802, constituted an engagement within the meaning of the proviso to the Act, and that the zemindar was not liable to be charged for the water taken by him from a Government source of irrigation in excess of the mamool, whether for the second crop on mamool wet land or for any crop on land in excess of the mamool wet, on the ground that water cess was in the nature of a land tax, and as the jama or peishkush was permanently fixed, the Government could not impose a cess for the use of water the right to which was appurtenant to the land in respect of which the jama was payable without increasing the amount of the jama, and thus committing a breach of the obligation undertaken at the time of the permanent settlement. It was argued that as there was no settlement of the jama in this case at the time of the grant, the basis for the application of the Urlam decision (L. R. 44 I. A. 166.) is utterly lacking, and so the imposition of water cess cannot be said to constitute an additional burden or the breach of any obligation undertaken by .the Government not to increase the jama. The argument is fallacious. It is true that there was no express agreement at the time of the grant not to levy any rent on the estate, but having regard to the intention of the Government to restore the estate to the heirs of the Raja in all its integrity as an act of equity and policy, the decision not to settle any jama should be understood as an implied agreement not to levy any quit rent on the estate. There is no evidence that the estate was subject to assessment before the grant. No jodi or quit rent has been levied since. The word "unsettled" in the description "unsettled mokhasa" used in the irrigation memoir of the village of. Ichangudi, referred to by Mr. There is no evidence that the estate was subject to assessment before the grant. No jodi or quit rent has been levied since. The word "unsettled" in the description "unsettled mokhasa" used in the irrigation memoir of the village of. Ichangudi, referred to by Mr. Pringle in support of his leaders argument, signifies nothing about the Governments right or intention to settle a jama on the estate. It means that jama was not fixed at the time of the grant, and nothing more. No jama was settled for the obvious reason that the Government, while restoring the estate to the Rajas heirs, as an act of grace did not wish to detract from the grant by levying any rent. As pointed out by the High Court, "what the non-settlement of the jama really means is that "the jama was fixed at nil; in other words, the Government, "in view of the fact that the grant is being made as a favour and grace by way of restoration of the village, which had "belonged to the last Raja did not think it proper to demand "any jama or quit rent in respect of these villages when they "made the grant in 1862." Their Lordships agree with this view. The other points of difference emphasized in the High Court, namely, that the head sluices of the channels belong to the Government in this case and the channels do not end in the village, but proceed further beyond, have but little bearing on the question, as no more than the accustomed supply of water is taken, and it is not alleged that the plaintiff has interfered with the sluices or increased the size or height of the dams or the width of the channels, or that injury has in any way been caused to the rights of anyone else to the enjoyment of water flowing in the channels. In their Lordships opinion, the suggested differences do not render the Urlam decision (L. R, 44 I. A. 166.) inapplicable in deciding the present case. In their Lordships opinion, the suggested differences do not render the Urlam decision (L. R, 44 I. A. 166.) inapplicable in deciding the present case. In this connexion, their Lordships will also observe that, having regard to the principles established in the decisions in the Urlam (L. R, 44 I. A. 166.) and Swamigal cases (L. R. 69 I. A. 22.), the soundness of the decision in Chidambara Rao v. Secretary of State for India in Council (I. L. R. 26 M. 66.) as laying down any general principle respecting the liability of an inamdar to pay "cess " for extended wet cultivation, cannot any longer be maintained. Accordingly, they hold, agreeing with the High Court, that the grant of 1862 constitutes an " engagement" with the Government within the meaning of the first proviso to s. 1 of the Act, and that the respondents "are entitled to "claim the benefit of the proviso .... to the extent of "the quantity of water flowing along the channels—Kila "Vaikkal and Mettu Vaikkals in the accustomed manner "and their rights to free irrigation are not limited to the "extent or area of the dittam wet lands." The appeal fails, and their Lordships will humbly advise His Majesty that it should be dismissed. As the respondents have not appeared there will be no order as to costs.