October 21 v. V. SRINIV ASA A YYANGAR

The State of Madras and another v. V. Srinivasa ,4.Y)'angar Venkatarama Ayyar J. 2S.C.R. SUPREME COURT REPORTS 909 to the thereon. Subsequent remaining 15/16th portion of the grant of 1757. On 31-12-1863 into the account in fixing the peish Zamindari, and taken the permanent settle ment, on some date which does not appear on record, Rani Mangaleswari, then holder of fresh grant of the one-sixteenth Zamindari, made a inamdars who part which had been resumed, the village the Inam Commissioner confirmed the grant of 1757, and issued in respect of the 15/16th portion an inam certificate of the village. The position, therefore, when the Act was passed was that while a 15/16th portion was held a pre-settiement grant con firmed by remaining one-sixteenth portion was held under post-settlement grant made by the proprietor of the estate. the British Government, inamdars under thereof were the Act, certain sections The Act came into force on 19-4-1949. Under sec tion l ( 4) of come into force at once and the other sections on such date as the Government might by notification appoint in respect of any zamindari; under-tenure, or In exercise of the powers conferred by estate. a section, notification issued force as regards tht 22-8-1949 bringing Ramanathapuram estace from 7-9-1949. Among villages mentioned as the Zamindari comprised (part)" described as an under-tenure. "Karuppur the part referred to in this It is common ground notification the subject-matter of this appeal. the one-sixteenth part, which appellant the Act the application out of which The respondent who represents the holders of this the present inam filed appeal arises, under article 226 of the Constitution for a writ of certiorari quashing the notification dated 22-8-1949 as ultra vires. The ground of attack was that under section 1(3) of the Act, the State had power to notify only what would be estates as defined in the Madras Estates Land Act, 1908 section 3(2) of that the part of (Madras Act village of Karuppur in the notification was not an estate as defined in that section. Section 3(2) of Act I of 1908, is as follows : I of 1908), and included so far as is material, 1955 The State of Madras and another v. V. Srinivasa A)!Yangar Venkatarama M•' J. 910 SUPREME COURT REPORTS [1955} "Estate" means-- ( a) any permanentiy settled estate or temporarily settled zamindari ; (b) any portion temporarily settled permanently zainindari which settled 1s estate or separately registered in the office of the Collector ; ( c) any unsettled palaiyam or jagir ; ( d) any inam village of which the grant has been the British Gov the village has been partitioned among the successors m title of the grantee or notwithstanding recognised by subsequent made, confirmed or ernment, grant, grantees or grantees. * * * • ( e) any portion consisting of one or more villages (a), is held on a permanent under the estates specified above .clauses of any of (b) and ( c) which tenure". though it was not that the inam The contention of the respondent was in section 3(2)(e), as that as the grant in question related only to a fraction of a village, it could not be notified as an under-tenure, as under section 3(2) ( e) an under-tenure would be an estate if it related to a whole village or villages. The in question was not appellant conceded an under-tenure as defined comprised only part of a village, but contended that it vn1s, nevertheless, {Jart of the Zamindari of Ramanatha puram, being a post-settlement grant of portion of a that when that estate vilbge comprised was notified, the inam i11 including in the Government under section question must. vest 3 (b) of the Act. The respondent demurred further con In addition, he raised contention. tention they would be were within protected by the Act, which runs as follows: therein, and the entiretv of it if post-settlement minor the operation of the Act, in itself an estate, section 20 of that even . "20(1) 19, where, before created any right lease or otherwise) In cases not governed by sections 18 and the notified date, a landholder has (whether by way of in any forest, including rights 2S.C.R. SUPREME COURT REPORTS 911 mines dr minerals, quarries, transaction shall be deemed and obligations arising notified date, Government : Provided fisheries or ferries, to be valid ; and all rights thereunder, on or after shall be enforceable by or against the transaction was not void or illegal under any law in force at the time : Provided further that any such right created on or after the 1st day of July 1945 shall not be enforce the Government, unless it was created able against for a period not exceeding one year : 19'55 The Stau of Madras and another v. V. Srinivasa Ayyangar V enkatarama AyyarJ. it is in terminate landholder Provided also inamdar of his if, in their opinion, three months from the date thereof". respondent was that where such right was created for a period exceeding one year, unless it relates the mean land of the landholder within the private ing of section 3, clause (10), of the Estates Land Act, the Government may, to do so, by notice given to the person public interest the right with effect from such concerned, date as may be specified the notice, not being earlier that a post The argument of inam would be a right in land cre settlement minor ated by a falling within section 20, the notification of the estate under section 1(3) would not ipso facto divest to hold them lands, and that he would be entitled subject that might properly be taken by the State under section 20. learned Judges of the appellant the Madras High Court The that post-settlement minor agreed with inams fell within the operation of the Act ; but they accepted the contention of the were governed by section 20 of the Act. As it was the State had not proceeded common ground that the notification was ultra vires, and accordingly quashed the same the inam forming part of Ka so far as the High ruppur village. The appellant applied this Court against this Court for leave to appeal the value of the subject-matter decision, and though the learned Judges was far below the appeaiable limit, granted a certificate under article 133(l)(c) on respondent that to any action that section, they held it related 1955 The State of Madras and anothn v. Y. Sriniua.ro bangar 41,., J. Ymkatarama 912 SUPREME COURT REPORTS [1955] ground public importance. That before us. the question involved was one of great the appeal comes is how in this appeal : (1) Two questions arise for decision the operation Are post-settlement minor inams within of Madras Act XXVI of 1948 ? (2) If they are, are they governed by section 20 of the Act ? in question On the first question, such to be notified under the appellant does not con is in itself an estate in section 3(2) of the Madras Estates Land as defined liable as Act and Act. His contention tllat when the Zamindari of Ramanathapuram was notified-and there is no dis that it was validly notified, as it was a perma nently settled estate falling within section 3(2) (a) of the Madras Estates Land Act-minor post-settlement inams of lands within the Zamindari would vest in the State as part of the Zamindari under section 3(b) is, omitting what is not material, as follows : the Act. Section . 3(b) • them, "With effect on and from the notified date and save as otherwise expressly provided in mis Act, ....... . . . . . . . the entire estate . ... shall stand transferred to the Government and vest free of all encum brances". The point were granted. If they are, Government under section 3(b ). remain unaffected by parent estate. is whether post-settlement inams are parts of the estate out of which they in the they will vest If they are not, the notification of decision The status of holders of these inams had been the subject of considerable divergence of judicial opinion the Madras High Court. To appreciate this, reference must be made following definition of 'landholder' the Madras Estates Land Act: to the in section 3(5) of "Landholcicr" means a person owning an estate or part thereof and collect the rents of the whole or any portion of estate by virtue of any transfer from the owner or his predecessor-in-title or of any order of a competent includes every person entitled 1955 The Slate of Madras and another v. V. Srinivasa Ayyangar Venkatarama Ayyar J. 2 S.C.R. SUPREME COURT REPORTS 913 then arose tenants would acquire occupancy Court or of any provision of law". inclusive portion of the definition as Leaving out not relevant it will be seen to the present question, that owners of parts of an estate would also be land holders. The question for decision whether darmi!a minor inamdars were landholders as defined in section 3(5). of the Estates Land Act. If they were, rights under section 6, and proceedings against them could be the revenue courts and not in the civil taken only courts, and in general, rights and obligations of the inamdar and the tenants would be governed by the provisions of the Madras Estates Land Act. One view was that as the inamdars had to pay quit jodi to the grantors, their, status could not be they could not be said to own of owners and therefore parts of an estate. The contrary view was substance owners of inamdars were to make a granted liability them, and that fixed annual payment did not detract character as owners, and they would be landholders · In view of this conflict of owning parts of an estate. opinion, the question was referred to the decision of a Full Bench in Brahmayya v. Achiraju(t ), which held by a majority that minor darmila inamdars were land holders as defined in section 3(5) of the Estates Land Act. This decision was based both on the ground inamdars were in the position of owners of parts of an estate and that they were also persons en inclusive portion of titled the definition. rent, within to collect · · In Narayanaraju v. Suryanarayudu( 2 the question whether the grantee of a portion of a village subse to the settlement was a landholder as defined in section 3(5) came up for decision before the Privy Council. After reviewing the authorities and the con the Board agreed with flicting views expressed therein, the opinion expressed by the majority of the learned Judges in Brahmayya v. Achiraju( 1 grantee of a post-settlement minor inam would be a landholder on both the grounds mentioned ), and held that ), (!I [1922] I.L.R. 45 Mad. 716. (2) [1939] 66 I.A. 278. 1 1955 TM StaJe of Madras and another v. V. Srinivasa Ayyangar Venkatarama Ayyar ]. 914 SUPREME COURT REPORTS [1955] to collect the permanent grantee solution of a stubborn ambiguity the definition. But satisfied on either ground judgments. They discarded "the doctrine reserves any mterest, however long as the zamindar from him cannot insignificant, be the owner'', and observed that the words "part of the estate" occurring in the definition must be given facie meaning. The Board their prima felt greater inamdar was difficulty in accepting the view that the inclu a landholder entitled rent within they expressed sive portion of that "the Full themselves Bench decision of 1922 represents a careful and reasonable Act, and that it ought not now to be overruled having regard to the time which has elapsed and to the cha racter of the interests affected thereby". Thus, it was time when Act XXVI of settled law in Madras at the 1948 was passed inamdars were that minor darmila owners of parts of an estate. Construing section 3(b) in the light of the law as then accepted, when a notified estate vests in its entirety prov1S1on, a minor darmila forms part of it must also vest in it. Ivengar learned counsel Sri R. Kesava that decis; ons on section 3(5) ot respondent, argued the meaning of the the Madras Estates Land Act on word 'landholder' as defined therein, could not he the true scope of usefully the definition section 3(b) of Act XXVI of 1948, as the Madras Estates Land Act was only for pur tenants, poses of settling and would be irrelevant for determining the rights of the inamdar as aga; nst the State. But the ground of the decision in Bralzmayya v. Ac!ii•·aju(') and Nara yanaraju v. Suryanarayudu(') the grantee of the inam is in the position of an owner of the part of to him, and that would be rele the estate granted vant when to his true status, whether the dispute landlord and is between the inamdar and the State. If the tenant or between inamdar is owner in relation it would to his tenants, be illogical the right5 of landlords and inam which that he is not that, the State under the controversy for construing is as in relation referred to hold (!) [1922) I.L.R. 45 Mad. 716. (2) [1939) 66 I.A. 278. ,. The State of Madras and another v. V. Srinivasa Ayyangar VenkataramQ ,4.yyar ]. 2S.C.R. SUPREME COURT REPORTS 915 inamdar, and the State. The question is, in our opinion, concluded by section 2(8) of Act XXVI of 1948 which defines a landholder as including a darmila is a statutory laid down recognition of the doctrine in Brahmayya v. Achiraju (1) and Narayanaraju v. Suryanarayudu( 2) inamdars are owners of parts of an estate. The result that when the <larmila inam does not relate to the entire village but only to a fraction of it, retain its character as part of the estate inam<lar, and when the estate is notified under section 1 ( 4) of the Act, the inam will vest in the State under section 3(b). it must be held in the hands of that darmila It is said estate-and inamdars, and is a provision Ramanathapuram therefor, It is next argued for for award of compensation the respondent that the Act makes no provision minor darmila that as a statute is not to be construed as taking away the property of any person unless for payment of compensation these inams should be held to be outside the operation of the Act. Reference was made in this connection to section 45 of the Act under respect of an which the compensation payable impartible is one is to be apportioned dfter payment of debts among the members of the family. that under this to share section the respondent would have no right in it. This contention is clearly erroneous. The mate rial provisions relating the award of compensation are sections 25, 27, 37 and 44. Under section 25, the compensation is to be determined for the estate as a whole and not for each of the interests therein. Section 27 lavs down how the basic income in the case: of zamindari.s section is to be fixed. Under to include one-third of the gross annual 27(i), respect of all lands in the estate, ryotwari demand and under section 27(iv) "one-third of the average net annual miscellaneous from all revenue derived in section 3 (b) ". other sources Thus, is included income of the zamindari. Under section in the total inam which is a part of the estate in the estate specified lands comprised income from separately it has (I) [1922] I.L.R. 45 Mad. 716. (2) [1939] 66 I.A. 278. 1955 The State of Madras and another v. Y. Srinivasa Ayyangllf' Yenkatarama Ayyar ], 916 SUPREME COURT REPORTS [1955] inamdar to "apportion this compensation among therein: Section 44 enacts the estate stand transferred is a person who is entitled the compensation payable in respect of an estate 37, terms of the basic income on the scale is calculated the Tribu prescribed landholder and any other persons whose principal rights or interests the Government' under section 3(b )". There cannot the darmila be any doubt on . these provisions to claim transfer of his portion of compensation the Government. Then comes section the estate respondent bases his contention. 45 on which the com to the distribution of That applies only pensation as pay able to the principal landholder, when he is the holder of an rights of minor darmila to claim compensa tion under section 44. The contention of the respon dent that the Act provides no compensation them, to fall outside and that they should therefore be held the Act must accordingly be rejected. · It inamdars impartible estate. leaves untouched section 44 determined If it to hold inconsistent is part of an estate, the very outset, (2) That brings us on to the second question whe is a right in land ther a post-settlement minor intendment of created by a landholder within section 20 of the Act. At it seems that a darmila minor somewhat is patt of an estate, and also that it is governed it must by section 20. in the Government under section automatically vest the title to it will 3(b ). But if it falls within section 20, the. continue third proviso, Government therein. It was laid down subject the conditions that section 3 operates on argued for the respondent terms only "save as otherwise expressly pro its own vided herein", and that section 20 was such a pro v1s10n. this argu to darmila minor ment, because the opera inams, tion of section 3'(b ). And how to be they are parts of reconciled with in the inamdar with a right in they could never fall within to take action under- the if section 20 applied the conclusion that somewhat difficult to follow to stand is . this result It 1955 The State of Madras and another v. V. Srinfoasa Ayyangar Venkatarama Ayyar J. 2S.C.R. SUPREME COURT REPORTS 917 the estate, and that purposes of the Act ? the inamdar is a landholder for in the inamdar transferred that when in d;irmila minor landholder as defined to the Government and vest But it is argued for the respondent the words "rights in land created by landlord" are of the widest import and would take inams. The is whether this contention is correct. point for decision We start with this that a darmila minor in section 2(8) of the Act, a and he is that, by reason of his being the owner of a the estate. Can such a person be held to be part of one who has obtained a right landholder within section 20 ? The Act makes a clear distinction between estates held by landholders and in or over interests held by other persons rights and estates. Section 3(b) enacts is a notification under section 1 ( 4), the entire estate shall it. the part of the estate belonging We have held inamdar would vest in the Government. to a darmila that on notification all Section 3 ( c) provides rights shall cease and terminate. Sec in or over the estate two distinct tion 3(b) and section 3(c) deal with in broad matters which may respectively be described in or over terms as ownership of the estate and rights estate not amountir.g to ownership, and turning categqries are mutually exclusive. Now, section in land by way of lease landholder before the or otherwise created by regard to notified date. section 3 (b) the distinction between estates under and rights over estates under section 3 ( c), the rights mentioned rights dealt with in section 3(c), and not to ownership which transac is within section 3 (b). When, is claimed under section 20 tion for which protection is one which vests ownership of the estate or a por tion thereof it will fall outside in the section 20 has no applica section. In other words, tion to transactions by which a person becomes a lanr1holder by reason of ownership of even a part of to him, and that being the estate being the character of a darmila minor is not pro- in section 20 can only refer to the this context, and having rights transferred it protects transferee, therefore, 20, In 918 SUPREME COURT REPORTS [1955] 1955 tected by section 20. The State of .. \1.adras and another v. V. Srinivasa Ayyangar Venkatarama Ayyar ]. rights are the proviso the persons whose to compensation having regard There are also indications in the language of tion 20 pointing to the same conclusion. Section 20(2) provides shall be nated under the value entitled the unexpired of the right which is terminated and portion of the period is created. to connote rights These words are more appropriate to be exercised for specified periods, such which are the exploitation of mines or forests for a term than "ownership of the estate". to section 20(1) lease or contract for for which the right is to be tillers of In Madras, regulated by the soil, and to abolish all tenure holders were There is one other consideration, which lends sup the Act was this conclusion. The object of port to the State and to establish direct relationship between intermediate rights and obligations of tenures. intermediate Madras Estates Land Act, and under that Act the intermediaries consisted not merely of the holders .of in section 3(2) of that Act but the estates as defined inams as settled also holders of post-settlement minor If the purpose by decisions of the highest authority. it would be neces fully achieved, of the Act to abolish not merely estates as defined section 3(2) of the Madras Estates Land Act but also darmila minor respondent the estates that will, on notification, in section 3(2) mentioned i nams. the minor in the Government and not inamdars under These will continue to be held by in accordance section 20 until terminated the proviso .dis the parent estates have landscape even after appeared from to this extent be held its purpose. And this the respon inamdars will not mere! y be unaffected by the Act but will actually be better off for the Act, the Madras Estates Land Act stands repealed on and it is by virtue of this the scene. The legislation must to have failed to achieve If the contention of the minor they are tl1erein, and surv~ve as islets the co11tention of inams. But jf to be accepted, it. Under section 3 (a) of the notified date, and as is not all. is correct, is only 1955 Thi Stat• of Madras and anothu v. V. Srinivcstt Ayyangar Vmkatarama Ayyar]. 1955 Octob., 2 7. 2S.C.R. SUPREME COURT REPORTS 919 that minor the other hand, tenants. and settll:'. to occupancy tenants became entitled Act that rights, the inamdars would, on notification, be free to their own terms with them. \Ne cannot accede to a contention which results not in the frustration of the object of the Act but merely reverse of what further produces consequences, were intended. On the contention of inams fall outside section 20 the appellant the State under sec and would vest straightaway tion 3 (b) will have the State to issue rights of the inamdars, and enabling in oceupation. We ryotwari pattas prefer to accept this contention, as it fully effectuates the intention of the legislature. In the result, we must hold that the one-sixteenth portion of the village of Karuppur in the the Act, and that Government under section 3 (b) of the only right of the inamdars is to share in the com terms of the Act. The petition pensation under of the respondent in so to this inam relates must be dismissed. the effect of extinguishing forming a darmila inam will vest tenants far as This appeal is accordingly allowed, and in accord ance wit~1 the terms of the certificate granting leave, the costs of the respondent in the appellant will pay this Court. The parties will be:.ir their own costs in the court below. ANANDA BEHERA AND ANOTHER v. THE STATE OF ORISSA AND ANOTHER [S. R. DAs, AcnNG C. J., VIVIAN BosE, ]AGAN NADHADAS, JAFF.R IM.'\M and CHANDRASEKHARA AIYAR JJ.] Ft;ndamental Rights, Enforcement of-Oral sale of fishery rights for future years by owner of estate before it vested in the State by legis lation-Nature of such rights-Profit a prendre, if immovable pro perty requiring registered imtrument for transfer-Such sale, if cre ates any right to property-Non-recognition by the State, if trans gresses any fundamental 1·ights-Constitution of India, Arts. 19(1) (/), 31(1)-0rissa Estates Abolition Act, 1951 (Orissa Act I of 1952) -Transfer of Property Act (IV of 1882), s. 54.