Karuppi v. P. L. M. P. L. Palaniappa Chettiar — 1953 DIGILAW 361 (MAD)

Satyanarayana Rao, J.- This batch of Second Appeals and Civil Revision Petitions raise two questions: (1) whether the village in which the lands are situated is an “estate” within the meaning of section 3(2)(d) of the Madras Estates Land Act, and (2) even if the village is an estate, whether the lands are private lands within the meaning of the definition of “private land” in section 3(10) of the Madras Estates Land Act. The trial Court held that the village is an estate, but that the lands in Nedumaram proper are private lands while the lands in the hamlets of Kallankundu, Vedavirthi, Chillanpatti and Ookulathanpatti are ryoti lands. The lower appellate Court reversed these findings. It held that the village was not an “estate” but that, even if the village was an “estate” the lands were not private lands for, according to the learned appellate Judge, the sole test to be applied to determine whether the land is an estate or private land or not is the test of direct cultivation as laid down by this Court in Jagadeesam Pillai v. Kuppammal1. There is a mass of documentary and oral evidence adduced in the case, primarily to establish whether the lands are private lands or not. The learned Appellate Judge applying the test he propounded to determine the character of the land, considered the evidence and came to the conclusion that the test laid down in Jagadeesam Pillai v. Kuppammal1, was not satisfied in these cases and that, therefore the lands were not private lands. In this batch, the correctness of the two findings of the lower appellate Court was canvassed by one side or the other. The first question for consideration is, whether the lands are situated in a village which is an estate within the meaning of section 3(2)(d) of the Estates Land Act. An Explanation was added to section 3(2)(d) of the Madras Estates land Act by the Madras Estates Land (Amendment) Act, 1945, Madras Act (II of 1945). The main clause together with the Explanation (1) is as follows: “Any inam village of which the grant has been made, confirmed or recognised by the Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees”. The main clause together with the Explanation (1) is as follows: “Any inam village of which the grant has been made, confirmed or recognised by the Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees or the successors in title of the grantee or grantees”. Explanation (1): “Where a grant as an inam is expressed to be a named village, the area which forms the subject-matter of the grant shall be deed to be an estate notwithstanding that it did not include certain lands in the village of that name which have already been granted on service or other tenure or been reserved for communal purposes”. The Supreme Court had occasion to consider the scope of these provisions in a recent case in The District Board, Tanjore v. Noor Mohamed2. It will be clear from the language of the section and also from the decision of the Supreme Court that in order to satisfy the conditions of the definition it must be established either (1) that the grant was of the entire village or, in other words, of the whole village without excluding any area from it; or (2) if the entire area is not granted, it must be at least a grant expressly of a named village, in which event the area which formed the subject-matter of the grant shall be deemed to be an estate in spite of the existence within the geographical ambit of the village of certain lands already granted, i.e., prior to the date of the grant on service or other tenure or even reserved for communal purposes. In the present case it is common ground that the grant was not of the enitre area of the Village of Nedumaram. The main definition, therefore, that the grant should be of an inam village is not satisfied in the present case. Reliance was, however, placed by the learned counsel for the appellants, on the Explanation, and his attempt was to establish that the grant was of a named village, and that, though it did not comprise the entire area, it excluded only certain lands in the village which were granted on service or other tenure or were reserved for communal purposes. The question is whether the conditions of Explanation (1) of section 3(2)(d) are satisfied in the present case. The original grant itself is not forthcoming. The question is whether the conditions of Explanation (1) of section 3(2)(d) are satisfied in the present case. The original grant itself is not forthcoming. Even the date of the grant is not known. All that is kown is that the grantor was one Adhichandra Pandya. In the absence of the original grant resort must be had to the inam proceedings of 1864 and 1865, on which counsel on both sides placed strong reliance in support of their respective contentions. There were three inam grants which were the subject-matter of inam proceedings. There was what was described as Dharmasanam Nedumaram, a grant made by the Pandya King, Adhichandra Pandya, to two named persons, Anandappayyan and Madhavayyan and to the other Brahmins of “Nanagotras”. The Inam Register extract relating to this is Exhibit P-2, and the Inam Statement relating to it is Exhibit P-2(a). There was another inam in favour of Thiruthalinathaswami temple at Tirupattur, which may be briefly described as Thirupattur Devasthanam. This grant was also by the same Pandya King, Adhichandra Pandya, and here also the date of the grant was not known and the grant was not produced. The Inam Fair Register extract relating to this is Exhibit P-1, and the Inam Statement is Exhibit P-1(a). The third inam was in favour of Karpaga Vinayakaswami temple at Pillayarpatti, and this may be compendiously described as Pillayarpatti devasthanam. The Inam Fair Register extract relating to this was not, however, exhibited in the trial Court; we called for the original Inam Fair Register, a certified copy of which was marked by consent as Exhibit P-104. Exhibit P-1(b) is a certified copy of the Inam B Register maintained in the village relating to the Pillayarpatti Inam and Exhibit P-1(c) is the Inam Statement relating to it. The inam title deed relating to Nedumaram Dharmasanam is Exhibit P-2(c) and a photo copy of it is Exhibit P-2(b). It is on the basis of these documents that we have to decide the question, whether the lands were situated in an estate. The procedure adopted by the Inam Commissioner in registering these inams was somewhat unusual. Normally, when the inam fair register was prepared, it is common knowledge, that all the inams in a given village were grouped together and dealt with in serial order. But in this case we find that that procedure was deviated from. The procedure adopted by the Inam Commissioner in registering these inams was somewhat unusual. Normally, when the inam fair register was prepared, it is common knowledge, that all the inams in a given village were grouped together and dealt with in serial order. But in this case we find that that procedure was deviated from. Pillayarpatti inam was the first to be registered and it bore Serial number 231. The heading in Exhibit P-104 is ‘Register of the village of Nedumaram in Thirupattur taluk’. The inam is described as ‘Devadayam, nanja (wet)‘and the extent is given in local measure virayadi as 3-7-4 equivalent to the English measure 2 acres 48 cents. The object of the grant was “for the support of temple of Sri Karpaga Vinayagar in Pillayarpatti now efficiently kept up”. As per the account fasli 1223 the jodi payable on all the inams in the different villages belonging to this temple was Rs.91-14-0 and there was an increase or Izafa of Rs.25-11-7, making a total of Rs.117-9-7. In Col. 11 it was stated that the name of the original grantor and the date of the grant were unknown. It would appear, however, from Col.12, that this inam was entered in the account of fasli 1211 corresponding to 1801 and in the Hindivi account of fasli 1223. The grantee was Karpaga Vinayagar Koil, and the extent in virayadis as entered in the account fasli 1211 was 3-7-4 equivalent to 2 acres. In the subsequent account of 1223 the extent however was 2 acres and 48 cents. In the account fasli 1244 the area was not: given. The names of the trustees were shown in Col. 16, and the grant was confirmed “on the present tenure” on 10th June, 1864 by the inam Commissioner, and title deed No.808 was issued in favour of the temple. The next in the order of the confirmation was the inam in favour of Thirupattur Devasthanam. The serial number is given as 339, and here also the heading is Nedumaram in Thirupattur taluk. 24 items of property of the extent of 68-5-5 local measure virayadis-equivalent to 47 acres 90 cents were shown as the items which constituted that inam. Of these, items 18 and 19, Vattayendal and Kanakanendal, are two hamlets. The grant is for the support of the pagoda of Tiruthalanathaswami in Thirupattur which was efficiently kept up. 24 items of property of the extent of 68-5-5 local measure virayadis-equivalent to 47 acres 90 cents were shown as the items which constituted that inam. Of these, items 18 and 19, Vattayendal and Kanakanendal, are two hamlets. The grant is for the support of the pagoda of Tiruthalanathaswami in Thirupattur which was efficiently kept up. Here also the jodi payable by the temple on this and other inams in other villagses is entered as Rs. 951-13-6 including an increase or Izafa of Rs.246-3-4. The grantor is shown in Col.11 as Adichandra Pandyan, but the date of the grant is not known. The name of the grantor seems to have been taken from the account of fasli 1223 as appears from Col.11. This inam occurs in the earliest accounts then available, namely account of fasli 1211, and in the subsequent Mabratta account of fasli 1223 corresponding to 1813. The grantee’s name is given in Col.13, and the the extent as appears from Col. 14 in the account fasli 1211 was 68-5-5 equivalent to 47 acres 90 cents. The nanja virayadi as per account fasli 1223 was also 68-5-5. The names of the trustees were given in Cols.16 and 17, and the grant was confirmed on the 10th of February, 1865, by the inam Commissioner, and title deed No.759 was issued. The inam statement relating to this inam gives very useful information. The heading of this inam statement which is in Tamil is “Statement relating to two pangus of Thirupattur Thiruthalinathaswami devasthanam in Nedumaram dharmasanam village”. It then proceeds to give the boundaries of the 24 items, the property, which then constituted the inam, and in the concluding portion of the statement occurs the remark that “The two aforesaid shares of Thirupattur Thiruthalinathaswami in the Dharmasanam Nedumaram are situated within the aforesaid boundaries of the 24 items”. The hamlets, which are shown as serial Nos. 18 and 19 in the Inam Fair Register, are shown as items 17 and 19 in this inam statement. The last of the grants to be confirmed was the grant of Dharmasanam Nedumaram village, which was registered as No.184. The Deputy Collector described that this Dharmasanam was one of the important Dharmasanam villages in the Zamin-dari of Sivaganga, and that it was granted by the Pandya King to the Brahmins of various families through persons Nos.1 and 2 in Col. The Deputy Collector described that this Dharmasanam was one of the important Dharmasanam villages in the Zamin-dari of Sivaganga, and that it was granted by the Pandya King to the Brahmins of various families through persons Nos.1 and 2 in Col. 13 and that it was a hereditary grant. The sanad was not forthcoming as it was lost; but the grant was supported by all the accounts. It consisted of 22 hamlets, which were detailed by the Deputy Collector, held in 32 large shares and one small share. The large shares were equal and one small share consisted of the lands of one of the hamlets of Kananendal belonging to the village under the settlement. The lands were divided and were exchanged 23 years back, and at the time of the inam enquiry, the Mahajanams, i.e., Brahmins, intended to exchange lands soon. From the entries in the Inam Fair Register extract we find that as per the account fasli 1211 the nanja extent was 1067-10-4 virayadi equal to 747 acres and 44 cents and there was an excess of 173-2-0 equal to 119 acres 16 cents, in all making a total of 1238 virayadis equal to 866 acres 60 cents. The punja kurukkam was 80 equal to 44 acres 80 cents, and the excess was 120 kurukkams equal to 67 acres 20 cents. The total of punja therefore was 200 kurukkams equal to 112 acres. The grand total was therefore 978 acres 60 cents. From these the poramboke, i.e., bed of tanks and paths, temple site, hills, paths, village sites, and river beds aggregating to 184 acres 80 cents was deducted, leaving a balance of 793 acres 80 cents. There were further deductions of inams. Devadayam Nanjai virayadi was 72-12-5 equal to 50 acres 34 cents; service inams 0-2-1½ equal to 11 cents, totalling 72-1-1½ equal to 50 acres 45 cents. The balance was 743 acres 35 cents. Then there was also a further deduction from the nanja. The Nanjai cultivated extent was 836-7-0 virayadis equal to 585 acres and 55 cents and waste land was 129-5-5½ virayadis equal to 90 acres 60 cents, making a total of 676 acres 15 cents. It is this extent that is entered in the inam title deed as representing ‘wet’. So far as punja is concerned in kurukkams it was 80 cultivated equal to 44 acres 80 cents. It is this extent that is entered in the inam title deed as representing ‘wet’. So far as punja is concerned in kurukkams it was 80 cultivated equal to 44 acres 80 cents. There was an excess of 40 kurukkams equal to 22 acreas 40 cents, totalling 120 kurukkams equal to 67 acres 20 cents. That is the total dry extent which is entered in the title deed. In the statement the extent granted is shown as 743 acres 35 cents as the aggregate of the wet. and dry lands. There were also other recent inams granted probably by the Dharmasanamdars, the details of which are not relevant at present. The shares which each of these pangudars were holding were given in detail in the Inam Fair Register as well as their names. Here also the grantor, as already stated, was Adhichandra Pandyan, and the date of the grant was not known. The inam was confirmed on 2nd March, 1865, by the Inam Commissioner at a quit rent of Rs.320. The inam title deed shows that it was ‘originally subject to a jodi or quit rent of Rs.874-4-0 per annum and is hereditary but it is not otherwise transferable; and in the event of the failure of lineal heirs, it will lapse to the State’. The usual clause to convert the tenure into a freehold is also contained in the title deed, and it states ‘on the inamdars agreeing to pay the annual quit rent of Rs.320 the inam will be confirmed as freehold in perpetuity’. It appears from the Inam Commissioner’s endorsement dated 18th March, 1865, that the inamdars agreed to convert the inam into a freehold under clause (3) of the inam title deed and they agreed to pay the annual quit rent of Rs.320 as provided for in the title deed. Therefore from 18th March, 1865, the inam became a freehold property of the Dharmasanamdars. It will be seen from the foregoing summary of the contents of the documents that at the time of the inam enquiry, Nedumaram was treated as a village and there was a Dharmasanam grant besides the grants in favour of two temples. The grant to the Dharmasanam and to Thirupattur Devastanam was by the same Pandya King, Adichandra Pandya. It will be seen from the foregoing summary of the contents of the documents that at the time of the inam enquiry, Nedumaram was treated as a village and there was a Dharmasanam grant besides the grants in favour of two temples. The grant to the Dharmasanam and to Thirupattur Devastanam was by the same Pandya King, Adichandra Pandya. From the Inam Statement relating to Thirupattur Devasthanam, it seems to us clear that what was granted to the temple was two pangus, while the Dharmasanam consisted’ of 32 major pangus and one small pangu. It is no doubt true that by the time of the inam settlement there was a division of the property and the 24 items enumerated in the inam fair register extract and the inam statement relating to Thirupattur Devasthanam came to be held as the inam of the temple, which items included two hamlets, besides a poramboke of 10 virayadis which was described as poramboke ‘endal’ for the two pangus and ‘Nir Nilayam’ 10 virayadis, there was also punja extent of 4 kurukkams. (Endal should be translated as a hamlet and Nir Nilayam as water spread). If as shown in the Inam Statement relating to the Thirupattur Devasthanam two pangus were granted to the temple by the same grantor and 32 and odd pangus were granted as Dharmasanam, it will be a legitimate inference to hold that at the time of the grant there was no allotment of any specific plots to either the temple or the Dharmasanamdars. If the village therefore was held in fractional shares by the temple and by the Dharmasanamdars, it would follow that the grant of Dharmasanam was not a grant of the whole village. In the first place, it has to be established that the grant was of a named village; or as pointed out by the Supreme Court and also by the language of the section, it must be expressly stated that the grant was of a named village. It seems to us highly doubtful whether the description of Nedumaram as a Dharmasanam village can be treated as a grant of a named village when we find from the two other Inam Fair Register extracts relating to Thirupattur temple and Pillayarpatti temple that there the village was described simply as Nedumaram and not as Dharmasanam Nedumaram. Those inams were not treated as part of Dharmasanam Nedumaram villages. Those inams were not treated as part of Dharmasanam Nedumaram villages. They were treated as part of Nedumaram village, which implies that the “Dharmasanam Nedumaram” is intended to indicate that portion of the village which was granted to the Brahmans by the same grantor, the Pandya King in 32 and odd pangus. The other two pangus were granted to the Thirupattur Devasthanam. Two alternative considerations would arise. Even assuming that on the language of the inam title deed and the description contained in the Deputy Collector’s remarks, Dharmasanam village itself is a “named” village, the question is whether the two undefined shares which must have been the subject-matter of the grant to the Thirupattur temple could be deemod to be a grant of “certain lands” in the named village, so as to bring the Dharmasanam village, assuming that to be a grant of a named village, within the meaning of the Explanation. If a fractional share in the village is granted it would be impossible to describe that indefinite share as a minor inam of certain lands in the village, so as to ignore the effect of the existence of such a land in the village and to make the Dharmasanam grant the grant of an estate within the meaning of the Explanation. Further, even if, as contended on behalf of the appellants, the original 24 items enumerated in the Inam Fair Register and Inam Statement were themselves granted to the temple even then, it would be difficult to hold that the grant constituted a minor inam that is an inam of specified extents in the village, so as to constitute a grant of the rest a named village, notwithstanding the existence of such lands. Those 24 items included the two hamlets together with the poromboke in those hamlets of the extent of 10 virayadis. What was therefore granted to the Thiurupattur temple could not have been a minor inam, which could be aptly described as grant of inam of certain lands, but the grant was of a portion of a village or part of a village. It has been held by this Court in Janakirama v. Gopalan1that a hamlet is part of a village-it is not a whole village. It has been held by this Court in Janakirama v. Gopalan1that a hamlet is part of a village-it is not a whole village. So, if two specified hamlets were granted to the temple even under the original grant they could not be treated as minor inams, the existence of which would not detract from the grant of the rest being the grant of a named village so as to make it an estate within the meaning of Explanation (1) to section 3(2)(d) of the Estates Land Act. One other important circumstance to note is that the grant in the two cases was by the same grantor. The appellants claimed that the suit lands were in the village which is an estate. The burden of establishing it is undoubtedly upon them as pointed out by the Supreme Court in the case already cited, The District Board, Tanjore v. Noor Mohammad2and it is also supported by the decision of the Privy Council in Ramayya v. Lakshmi Narayana1where their Lordships of the Judicial Committee point out, relying on the decision of this Court in Srimath Jagannatha Charyulu v. Kutumbarayudu2, that the terms of section 9 of the Code of Civil Procedure lay down a general rule in favour of the jurisdiction of the Civil Court, and that the burden of proof is on the party who maintains an exception to the general rule. If the grants were therefore by the same grantor, it is incumbent upon the appellant to establish that the grant in favour of the temple, assuming that it constituted a minor inam and not a major inam or part of a village, preceded the grant in favour of the Dharmasanamdars. We are, therefore, of the opinion, that, even if we assume that the grant of Dharmasanam is of a named village, as the part granted to the Thirupattur Devasthanam cannot aptly be described as a grant of certain lands in the nature of minor inams so as to ignore their existence and make the grant of Dharmasanam a grant of a named village and an estate, the conditions of Explanation (1) of section 3(2)(d) are not satisfied. We, therefore, agree with the conclusions of the lower appellate Court, that the lands are situated in a village which is not an estate within the meaning of section 3 (2)(d) of the Estates Land Act. We, therefore, agree with the conclusions of the lower appellate Court, that the lands are situated in a village which is not an estate within the meaning of section 3 (2)(d) of the Estates Land Act. As regards the other question, whether the suit lands are private lands or not, the learned appellate Judge applied the test laid down in Jagadeesam Pillai v. Kuppammal3and came to the conclusion that the lands were not private lands. The learned Judge in that case laid down that direct cultivation was the sole test by which alone the lands in an estate could be proved to be private land. But that test was not accepted by the majority of the Judges in the Full Bench decision in Periannan v. A.S. Amman Koil4. Had we reached the conclusion, that the village is an estate, it would have been necessary to remit the case back for a finding on the question of the nature of the land as the learned appellate Judge proceeded to deal with the question from a wrong perspective. There is a volume of evidence, oral and documentary, bearing upon the point, but we think in view of our conclusion, that the Dharmasanam grant does not constitute an estate within the meaning of section 3 (2)(d) of the Estates Land Act, it is unnecessary to call for a revised finding at this stage. The evidence in the case has not been printed and has not been placed before us. Even the documents bearing upon the first question were not printed, and we had to wade through the manuscript records to deal with the question, as it is an important one affecting the rights of a number of tenants. If it becomes necessary to decide the second question, the case will have to be remitted back to the lower appellate Court for proper consideration. In view of our conclusion on the first point, we think that the appeals and revision petitions must be dismissed with costs. Vakil’s fee Rs.750 to be apportioned equally between the revision petitions and the appeals. K.C. ----- Appeals and petitions dismissed.