Giswa'mi v. Goswamini

two· l!ons Gangaraju and Ramayya-and four daughtcrs-, Ammanna, Sesbamma, Gangamma and Bhavamma, of these, the two sons and the daughter Ammanna died during Thammiah 's life time. Gangaraju left him surviving his widow Chetamma and Ramayya his· widow Vonkamma. Arnmanna was survived by her son Rudrayya, who was brought up by Thammiah. Thammiah died in 1885, Soshamma in 1904, Gangamma in 19:l0 and Bhavamma in 1935. After tho death of Bhavamma, Pnddarnju (herein after called the plaintiff}, son of Gnngamma filed Suit No. 53 of I !J44 in the court of. the Subordinate • >--t. Shila J. 19111 Swikavilli Suranna .v4 .. ,< __ -; Ooii Sal~iraju . :...-....,.~-' Shah J. ·- ... 3 S.C.R. SUPREME COuRT REPORTS 655 .Judge at Rajamundhry against the descendants of Seshamma apd Ammanna for a decree for partition and separate possession of a third share in 17 lands, described in Schedule B to the plaint as "agricul· tural land and ·measuring in the aggregate 51 acres 72 cents in Patta No. 12 in village Pandalpaka in Pitbapur Zamindari" and in Schedule '0' described as three houses with sites thereof in village Pandal· paka. To this suit Jaggarayudu and Paddaraju, sons of Venkataraju-brother of the plaintiff-were impleaded as defendants 31 and 32. The plaintiff claimed that Thammiah owned occupancy rights in the ryoti lands in the Pithapuram Zamindari and that after Thammiah's death the lands were managed with the permission of the plaintiff and his brother Vcnkataraju, in the firnt instance, by the two daughters-in-law of Thammiah-Chetamma and Rammanna, son of Seshamma and their "possession and management was on behalf of heirs and persons entitled to maintenance out of the estate" and that the right to sue for partition accrued on the death of Bhavamma on March 18, 1935 . The suit was resisted by the descendants of Seshamma and Ammann a principally on the plea that in the lands described in Schedule 'B' Thammiah had not proprietary right and that occupancy right there· in accrued to Rudrayya and Veeriah (husband of Seshamma) by virtue of the Madras Estates Lands Act, 1908. It was also pleaded that Thammiah had made an oral will devising his estate in fav•mr ofVeeriah~who w:is his illatom son·in-law--and Rudrayya in equal shares. This plea about the oral will was negatived by the Court of First Instance and the High Court and need no longer be consi dered, because it is not canvassed before us in this appeal. The trial Court held that Thammiah had no proprietary interest in the lands in Schedule 'B' and on that view decreed the plaintiff's claim for partition of the homes and sites described in Schedule 'C' only· and awarded a third share to him, .JNI SunAaBiJ/i Surann.a. v. G~i StU.hir•ju '__,_ S"411J, • ... ., SUPR!<!ME couiit REPORTS another third share to Ramanna and the remaining third share collectively to defendants 31 and 32- sous of Venkataraju. In appeal, the High Court of Madras modified tho decree of the trial court holding that in the agricultural lands Thammiah had occupancy rights which on his death devolved on his surviving daughters, and directed that those lands be also partitioned, and that a third share be awarded to the plaintiff arnl a third share to defendants 31 and 32 together with mcsnc profits from March 18, 1935, the date of Bhavamma's death. With certificat~ under Art. 133, this appeal is preferred by the descendants of Scshamma and Ammanna. The principal question which falls to be deter· is whether Thammiah had, as mined in this appeal claimed by the plaintiff, oecuprmcy rights in the lands described in Schedule •B', or as the contesting defendants contend, Thammiah was an annual tenant of the zamindar and that after his death tho lands were held on similar tenure by different members of the family of Thammiah and that the occupancy right was acquired by Rudrayya and Veeriah by virtue of the Madras Estates Lands Act, 1908. The lands are within a permanently settled zamindari under l\Iadras Regulation XXY of 1802, and it is common ground that Thammiah was culti· vating the entire area of the lands during his life ;,ime. There is no ovidencc indicating that his possession was ever disturbed during his J!fc.time. There is again no evidence about the commence ment of the occupation of Thammiah or his pre· deceesors : commencement of their occupation is therefore lost in antiquity. The lands are described in the various documents, to which we will presently refer, as "jeoroyat.i lands"', Thammiah a.s "jecroyati ryot", and after hie cloath his daughters-in-law and · grandson Ra.manna were similarly described. Three documentJ!-Exts. D-1, D-2 and D-3- which catablish that Thammiah was cultivating the landB throw important light on the problem under 1961 Sunkavilli Surttnna v. Goli Sathiraju Shah]. \ f 3 S.C.R. SUPREME COURT REPORTS 657 discussion. Exhibit D-1 is a muchilika dated July 1, 1883, executed by Thammiah in favour of the zamindar. Exhibits D-2 and D-3 are similar muchilikas dated respectively August 10, 1884, and July 15, 1885. Each of these muchilikas is in respect of the seventeen pieces of lands described in Schedule 'B' and the 'cist' settled is Rs. 419/8/-. The terms of the three muchilikas are identical. Thammiah is described in the muchilikas as "jeero· yati ryot" and the lands are described as "jeoroyati pampus". It is recited in the muchilikas "I have executed and delivered this muchilika agreeing that I should pay the said cist amount of Rs. 419/8/ every fasli according to the instalments mentioned hereunder to the Officials on your behalf and to obtain rMeipts; .................. that during the last year of the term, I should not raise gingelly or chiru veru crop on these pampus but that I should leave sufficient land for purposes of garden cultivation and seed beds; that I should not cut down any kind of trees without your permission; that I should not raise permanent gardens or construct houses on these lands without your permission; that I should not cause damage to these lands so as to make them unfit for cultivation purposes; that if at the end of the term you should lease out these pampus to anyone, whom you like, for a cist amount advantageous to you, I should not raise objection thereto; that if you had leased out these lands to other ryots the ensuing year after the expiry of the term, and if the said ryots should carry on necessary works cultivation during the ensuing year by way of ploughing seed-beds, sowing seeds and planting tender sugarcane even before the expiry of this term, I should leave sufficient land to them without rais ing any objection whatsoever." By the covenants of the muchilikas Thammiah had undoubtedly under taken not to raise certain crops, nor to cut trees, nor to put up permanent constructions and had also undertaken to give certain facilities to other tenants purposes 1961 . -.,,J:aPilli S11Tonnt1 v. Viii Snthiraj" ShGhlJ. .... 658 SUPREME COURT REPORTS [196~] in occupancy the land was acquired inducted in the lands by the zamindar. The evidence docs not justify the inference that Thammiah was inducted on tho land by Ext. D-1. There is even no evidence that from the zaminder by the members of Thnmmiah's family or that the ancestors of Thammiah were not on th11. land before the zamindari rights accrued to the zamindar. It is also not disputed that land in the Madras Presidcncv were zamind'lries right by many ryots even held before the Madras Estates Lands Act, 1908, was enacted. As observed in Venkata Nara.•imha Naidu v. D-indamudi Kotayyo(') at 301 that "there is absolutely no ground for laying down that the rights of ryots in zamindaries invariably or even generally had th•'ir origin in express or implied granta made b:v the zamindar. The view that in the large major•tv of instances, it originated other wise is tho one most in accord with the history of agricultural land-holding in this country. For, in the first place, sovereigns, ancient or modern, did not here set up more than a right to a share of the produce raised by raiyah in lands cultivated by them, however much that share varied at different times. And, in thE> language of tho Board of Revenue which long after the Permanent Settlement Regula tions wero passed, investigated and reported upon the nature of the rights of ryots in the various pa.rte of the Prosidencv, "whether rendered in service, in money or in kind and whether paid to rajas, jagir<lars, shroticmdars, poligarn, mutadars, zamindars, inam<lars or to Government officers, such as tehsil darn, amildars, amins or thannadars, tho paymrnts which havo always been made are universally deemed the duo of Government" ...... Therefore to treat such a payment by cultivators to zamindars 11s 'ront' in tho strict sense of the term and to imply therefrom the relation of landlord and tenant so as to fot in the preoumption of law that a tenancy ii! genera.IA is one from year to year, would be to mtroduce (I) (1897) [. L. R. 20 Mad.:299. 1961 Sunk•Pilli SurPonn v. Qoli Sotkfrajn ShahJ. 3 8.C.R. SUPREME COURT REPORTS 659 ' ' ~ __, - ,,- a mischievous fiction destructive of the rights 01 i;reat numbers of the cultivating classes in this province who have held possession of their lands for generations and generations." It was also observed in that case (at p. 303), "It thus seem unquestion able that prima f acie a zamindar and a raiyat are holders of the melvaram and kudivaram rights, respectively. When, therefore, the former sues to eject the latter, it is difficult to see why the defen dant in such a case should be treated otherwise - than defendants in possession are generally treated, by being ~ailed upon, in the first instance, to prove that they have a right to continue in possession." The right to occupy land under the revenue system prevailing in Madras may arise by reason of the ,._. customs in the district in which they are situate. In any event, there is no presumption that the holder of the land under a zamindar is a tenant at will. In each case the rights of the ryot have to be ascertained in the light of the facts proved. / In Appa Rau v. Subbanna ('), Muttusami Ayyar and Wilkinson, JJ., were called upon to consider whether a zamindari ryot could mortgage his interest .. in his holding. It was observed in that case that "According to the course of decisions, therefore, in this presidency the landlord may determine the tenancy if there is a contract, express or implied, _.. by exercising his will in accordance with his obliga tions; that there is no presumption in favour of a tenancy at will; that an occupancy right may exist -1· by customs; that a pattadar or raiyat in a mitta is tintitled to continue in possession so long as he regularly pays rent and has a saleable interest, and that by reason of special oircumstances in evidence the onus of proof may be shifted, even in regard to a permanent occupancy right, from the tenant to the landlord." The court also observed that it would be "monstrous to hold that every tenant in a • I I .r -.i:amindari is presumably a tenant at will''. (I) ( 1889) I. L. R. 13 Mad. 60. r 1961 Sunkm·-![, S:,rmma v (;o/i Sathir11Ju Shah ]. (1fi0 SUPRE:IIE COURT REPORTS rrntl2J [n Vwcata .l!a./i11l<.1l!shmamma v. lfomajogi ('), a zaminrlar ;;crw<l a notice upon thr rlcfon<lant, who was a cultivating ryot in the zaminrlari calling upon him to deliver possession of his holding, and on default of complia11ce sued to evid him from his holding. The <kfon<lant plearle<l that he and his anc-estors had bce11 "jiroyati ryots" of the holding timeH immemorial. Accor1ling to the High Conrt, the Z;tmin<lar having faile<l tn provl.' that the ryot's tenancy had commPnce1l nn<lcr the zamin<lar or his ancestors, the suit shoulrl be dismissNl. Tho court obsen·e<l that "in cases in which the raiyat.~' holding is not shown to have commence<! subsequent to the permanent Rcttlcm<·nt, and whl'n upon the c\·i1lenee it is possibly as ancient as the zamindari itsdf, the prin1·iplc laid tlown with reference to tenancies which a<lmittedly commenced un<lcr the zaminclar" had no application, •111! tlu~t "in such cast•s it is not umcasonablc to hold that the onuR of showing that the tcnar:cy commenced under the plaintiff or hi8 ancestors rests on the zaminclar, and thl\t until he 8hows it, tbc zamindar may be fairly presumed to have !wen the as8ignec of Government n·wnue, anc! the tenant liable to pay n fair rent and Pntitled to continue in possC'ssion as long a8 he rei:;11larly pays rent. - .... - In l'c!lk<1t1& .Y<1rnsimlu1 N11idu '. Dandamudi l\11f11yya('), which wu h:w" alrca1ly referred, it was h"!1l that a ryot in a permanently settled estate is pri ma fatie not a mere tenant from year to year hut the own('}' of tlw kuclh·aram right in the land he cultivate•, and in a suit zaminclar "is to prove that the kndivaram right in the disputl'd land subsequently passed to the deft.11- dant or some perHon throu}!h whom he claims under circumstances which give the plaintiff the right to eject." The Court obscn·etl thnt there is no subs- tantial analogy between an English tenant and an - - ..,. Indiau ryot for the right of ryots came into existence in ejectment, ., 11111892: !. L. R. 16 Mad. 271. (2l (18J7) l.L.R. 20 Mad. 299. 1961 Sunkarilli Surnnn(t v. -Coli Salhiraju Shah j. 3 S.C.R. SUPREME COURT REPORTS 661 ~ 'I' ,.,- mostly, not under any letting by the Government of the day or its assignees, the zamindars, but independently of them, according to the Indian traditions such right were generally acquired by cultivators entering upon land, improving .it and making it productive. After referring to the judg ment of Turner, C. J., and Muttusami Ayyar, J., in Siva Submmanya v. The Secretary of State for India(') that the Hindu jurisprudence rested private property on occupation as owner, and to Secretary of State v. the right to the possession of lands acquired by the first person who makes a beneficial use of the soil, it was observed that the well-known division in the Madras Presidency of the great interests in land under two main heads of the melvaram interest and the kudivaram interest made the holder of the kudivaram right, far from being a tenant of the holder of the melvaram right, a co-owner with him. - Vira Rayan(') that ,,, '• • In Gheekati Zam·indar v. Ranasooru Dhora and others('), Shephard, J., observed at p. 322, "Many of the occupants of zamindari lands are not tenants in the proper sense of the word, and the fair pre- sumption is that, when new occupants are admitted lands, to the enjoyment of waste or abandoned the intention is that they should enjoy on the same terms as those under which the prior occupants of zamindari lands held. It is open to the zamindar to rebut the presumption. He may show as was shown in Achayya v. Ht1numantrayudu (') that the i.rsual condition of things does not prevail in his estate or he may adduce evidence as to the particular In contract made between him and his tenant. other words, he may show that the terms of the contract were different from those which ordinarily prevail between a zamindar and the occupant of zamindari lands." Subrahmania Ayyar, J. observed, _,_ -.... "Practically the whole of the agr.icultural land there J (1) (1885) I.L.R. 9 Mad. 285. (2\ (1885)1.L.R. 9 Mad. 175. (3) (1899) !. L. R. 23 Mad. 318. (4) (:891) I. L. R. 14 Mad. 269. 1161 $..U.Uli SuraMO v. C.Zi Satliiraju SW J. 662 SUPREME COURT REPORTS (1962] is not cultivated by persons who merely hire it for a limited time. The raiyats most generally hold by no derivative tenure. And even where the right to cultivate passes to them from zamindars tho pay ment mado by them, in the absence of a contract, is regulated by custom in the last resort, as provid - ed in s. 11 of the Rent R-0covery Act. Tho raiyats a.re generally entitled .to hold the lands for a nn· " • limited time, that is as long as they wish to retain it subject to the ·performance of tho obligations incident to the tenure. Nor can it be said that this is true only in regard to so much of the land in tho hands or the raiyats as cannot be shown to have been obtained by them from zamindars. For in the case of lands which have boen relinquished by the former occupa.nta or which have been lying waste from time immemorial, they too, whon takon up by a raiyat, aro treated exactly on tho same footing as land into tho possession of which it is notishown that the ra.iyat was let in by a zamindar, and the raiyat holds poSBession of them for an in definite period". .·, • In Kumbham Lakshnumna and others. v. Tanji rala Venkateswarlu and Others ('), the Judicial Com- mittee of the Privy Council held that in a suit to eject the tenant of an inamdar from his holding the burden is on the plaintiff to make out a right to evict by proving that the grant included both tho melvaram and the kudivaram intorosts, or that tho tenants or their predecessors were let • into DORRllRBion by the inamdar under a t-0rminablo lease. The dispute that case was between inamdars and a tenant and had to be decidod by the Civil Court, for having regard to the dcfu1ition in s. 3(2) ( d) of the Madras Estates Land Act, 1908, the Act did not apply t-0 inamdars. By s. 6 of the Act it having boon providod that "every ryot now in pOllsession or who aha.~! herea.ft~r ~ admitted by a landholder to possession of ryot1 land situated in the estate of such landholder shall have a permanent right of occupancy in his holding," (I) (1949) L. R. 7' I. A.' 202. 1961 Sunkavilli Suranna v. Coli Sathitaju Shah]. 3 S.C.R. SUPREME COURT REPORTS all tenants in possession of land at the date on which the Act came into operation, were declared to be holders of permanent occupancy rights, but the Act did not justify the inference that the holders prior to that date did not and could not hold occu pancy rights. The Privy Council was of the view that in any action by an. inamdar to evict his tenants. and by a zamindar prior to 1908 to evict his raiyats from their holdings, the burden was on the plaintiff to make out the right to evict by proving that the grant included both the melvaram and the kudivaram interests or that their predecessors were the holders of land or let into possession by the inamdar or the zamindar under a terminable lease. The Privy Council judg ment, therefore, recorded its approval to the view expressed in the earlier cases to which we have referred. • But counsel for the respondents contended that this was not a suit between a zamindar and a ryot and the rule as to the onus of proof in a suit as between a zamindar and a ryot did not apply where the suit was filed by a person like the plaintiff claiming a share in the occupancy right in land in possession of the defendants, and unless the plaintiff establishes affirmatively that the common ancestor was before 1908 in possession as an occupancy tenant, his suit must fail. We do not think that this is a permissible approach. The presumption which arises in a suit by a zamindar against a ryot for possession of the letter's holding, rests not on the narrow ground of burden that relief on whoever alleges that footing must establish it ; the presumption has its roots in the system of land tenure and in cus· tom of the area in which the lands are situate, in a suit between persons claiming and applies under the ryot, as well as in a suit against the ryot by the zamindar. title and claims Counsel for the re pondent relied upon certain eiroum1tanees which appeared from the evidence lMI Sun.ktuilli SurOnM V. Goli Sathiraju 66! SUPREME COURT REPORTS [HJ62l " "' as lending supp0rt to the plea of the contestinp: • dcfenrlauts that tlw lan<ls were not held by Thammiah)n occupancy right. Reliance was placed upon the covenant in Exts. D-1, D·2 and D-3 that the zamindar may on the expiry of the year of tho m11chilika, let out the lands to any tenant at "cist'' "rt is true that in advantageous to the zamindar. Exts. D-1, D-2 and D-3 it is recited that if ;it tlw end of the terms of the muchilika the z1imi11dar should lease out the lam! t-0 anv one for a "cist" advantageous to him, Thammiah· would not object thl'rcto, and he further agreed that he would leave sufficient Jami; without raising any objection, for the ryot to carry out the necessary work for cultivation rluring the ensuring year. But such a co\·enant is by itsc If not sufficient to justify the inference that the ryot's tenure wall precarious. It appca rs that sinct• the dl'cision ef tho Madras High Court in Chockalingc1 I'illi \'. Vythealinga Pundara Sumuuly (')that neither the rent lteeovC'ry Act, nor the regulations operatt'd to <'Xtcnd a tcnan<'y hoyond express or implied the period secured by it, the zamin- terms of the take muchilik:L <lars were ndn1 itting, or other writings from rights, notwithstanding the t1ue nature of thPir In that their tenure was restricted or precarious. J'enwta J/.1ltc1fokshmamma v. Uamajogi ('),in deal- ing with a muchilika <•XCcuted by a ryot for a period of one year only, l\Iuttusami Ayyar J., obHerved, "Neither a patta nor a muchalka granted or executed unrlcr Act VIII of 1865 during the eontinnuuce of the holding is conclusive cvidcnco tlmt the holding is :i tenancy from year to year. A pa.tta or muchalka is ordinarily nothing more than a record of what the tenant has to pay for a particular year with reference to the pro-existing relation of lancllord and tenant. The fact cannot also be lost sight of that tho zamindar is .•!ways a man ...,,... of education, status and influence and often exercises contract cn•:iting accustomed their ryots • . (I} (18711 6 M. H. C.R. 164. 121 11892! I. L. R. 16 Mad. 271. 1961 Su,,kavilli Suranna '. G uli SathiraJu Shah]. 3 S.C.R. SUPREME COURT REPORTS 665 ) revenue power and control over the village records. On the other hand, the raiyats are illiterate persons and it would be easy enough to get them sign anything as long as there is no attempt to interfere with their actual occupation and enjoyment of tho therefore, to land." It would be unre::tsonablc, attach any undue importan8e to the rc"itals of the nature contained in Exts. D-1, D-2 and D-3. The Privy Council in Kumbham Lakshmamma's case (1 ) referred to tb.e practice among zamindars of taking from ryots negativing the existence of muchilikas the occupancy rights as being prevalent and to the judicial recognition of such a practice in Peravali Kotayya v. Pnnopalli Ramakrishnayya (2 Zamindar of Chellapalli v. Rajt!lapati Somayyci ('). The Judicial Committee referred w~th approval to the ob~ervations of Wallis, C.J., in the latter case to the effect : "In this connection it is to be borne in mind that numerous instances have come before the courts in which subsequent to the decision of the Chokalinga's case(') (1871) zamindars succeeded in inserting in pattas and muchilikas terms negativ· right", and existence of occupancy pointed out that they could not neglect the conside· ration that a ryot so long as he is not evicted, might be prepared to sign anything and that the evidential value of such should be judged accordingly. It is true that if there were some reliable or substantial evidence to show that the tenancy had commenoad after the zamindari rights accrued or that otherwise the tenant's right was restricted, the value to bo attached to the reci tals of the nature set out may be greater ; but there are no (lircumstances in this case lending strength to the recitals contained in Exts. D-1, D·2 and D-3. contract a After the death of Thammiah, muchilikas were obtained and pattas granted by the zamindar not in favour of the daughters of Thammiah, who were under the Hindu Law his heirs, but in favour (2) (II (41 (3) (1949) L. R. 76. LA. 202. (1914) 27 Mad .. L. J; 718. [1937]2 Mad. L. J. 573. (1871) 6 M. H. C.R. 164. - Ct' .. ,..._, • . - f - JP61 tvd:at:ilii S11ro.n11tt v. Coli Scthiraju Shah J '· . ,., 666 SUPREME COl"RT REPORTS [lr62J of his daughters·in.law, in the first instance, and thereafter, in favour of one of the daughters-in-law and Ramanna, grandson of Thammiah. These documents arc Exts. D-4, D-G, D-G (a), D-6 and D-8. Ext l'-4 is a muc-hilika executed on August 15, 1891 by \'enkamma and Chetamma, daughters-in law of Tbammiah. Ext. D-ii is another muchilika executed on August, lG, 1893 by Venkamma. and Chetamma. Each of these mnchilikas is for period of one year. Ext. D-5 (a) isa patta executed on October IO, 1893 by the zamindar corresponding to muchi lika Ext. D-5. Ex. D·6 is a patta executed on May 21, 1904, by the zamindar in favour of Chetemma. and Rama.nna-minor by his guardian Vecriah-and there is Ext. D-8 which is a patta dated January 16, 1906 also in favour of Chetamma and Ramanna. A lI these rnuchilikas and pattas related to the same seventeen pieces of land which were originally in tiic possession of Thammiah, and the covenants It is true that in respect of the first two rnuchilikas the ryots were Chetamma and Vcnkamma, and in :Exts. D-6 and D-8; the ryots were Chetamma and Ramanna. Counsel for the defendants asks us to infer from Exts. D-4 to D-8 that tho zamindar had at the end of the year for which tho muchilikas or pattas were cxccut~d exercised his right of evic tion and had taken possession of the lands and had given them to other persons of his own choice. But it is difficult to draw that inference in the absence.:.. of any reliable evidence that the zamindar had evicted ryots who had executed the muchilikas and.had then inducted fresh ryots on the land. The reason why'/Vonkamma was omitted after 1893 from.the muchilikae and pattas of the land and in her~ place Ramanna was substituted will be pre sentlyLmentioned. After tho death of Thammiah, hi1 rights in.the land would undoubtedly devolve by the law of inheritance upon his survivingdau~~ters with limitoo interest. But the fact that mueh1hka.a wore taken from persons who were strictly not to Hindu law, but wer• 1till heirs acoording thereof aro identical. Sunkavilli Surarma v. l Coli Sdthiraju Shah]. 3 S.C.R. SUPREME COURT REPORTS 667 representatives of the family, will not ·justify an inference that the right of the original ryots were extinguishe<l and fresh rights in fM·our of persons who exec•1ted muchilikas were created. The two daughters-in-law--Chetamma and Venkamm:t-after the death of Thammiah, continued to .live in the family house together with Seshamma, Veerayya and Rudriah, and it is not unlikely that the zamin dar regarded the two daughters-in-law as represen tatives of tho family and took muchilikas from them. There is no warrant for the inforence that they wer•> inducted on the land in inqependent right by the za.mindar and not -as reprepentativ'es of the descendants of Thammiah. The learned Judges of the High Court observed that "in 1895 (when Ext. D-4 was executed) in country parts likePandal paka, it is too much to assume such a souud know ledge of Hiedu law. Besides, Venkn.mma and Chetamma were, admittedly, living a.long with and Ramanna and Veeriah and Rudrnyya life-time, and Bhavamma during Thammiah's cont; inued to live in that same house after his death ... So, we have no doubt that t;he Maharaja of Pittapur, the zamindar, never intended :in the least to take away the B Schedule lands from '.I'ammayya's heirs and given· them to Venkamma and Chittemn:.a who were not heirs and we hold that he renewed the patta in favour of these two widows, as they were con:iiderad by him to be representing Tam mayya's estate, being his widowed daughters-in law." In our view, this in the circumstances of the case, is a correct inference. · - It appears that after 1895 there arose disputes between Veeriah and VenJi:amma-and it was arranged to provide maintenance to Venkamma out of the e11tate of Thammiah. - Ext. P.l dated May 16, 1899 records the terms on which maintenance was granted. This document has a very important bearing on the quei; tion which falls to be decided in this appeal. It is recited in Ext. P-1 that all ihe propertiell of Tha.=ia.h had devolved, after -----· _..,...- -- - 1961 - - i S;mJ.aril/i Sur•rmo v. c.1i Sothiro.;u Shah]. 6G8 SUPREME COURT REPORTS [196~J his dflath upon his "dowhitras" (da1Jghter's sons), Rudriah and Ramanna anrl that the two "dowhi· tras'' w<'re bound to maintain th•' widowed <laugh· t.f'fs.in·law-Chetamma and Ycnkamrn11, and that accordingly they were being maintained, but a to live in tho family \'cnkamma was unwilling- house, it was dceiclrrl to give her for rnaint~nance expcnsl's Rs. 25 and 240 kunchams of white paddy per year besides •~ house for residence. This deed recites that out of tho estate of Thammiah the two widows-Chctarnma and Venkamma were in fact Lein!! maintained, that the estate was inherito l by Hudriah and Ramanna, and recognises the right of to rccei\•e maintenance out of the the widows estate. Then' is no evidence on the record that besirles the lands mentionccl in Schedule 'Il' thoro was <\llY other agricultural land of whichThammiah was possessed and which had devolved upon Rudriah and Ramanna. It is adrnittcdly out of tho property of Thammiah which had devoh·erl upon that maintenance was f{udriah and Ram.anna agreed to he given, and if Thammiah was not posses· eed of '.l"Y property other than the Jands in Sche· dule 'B·, Ext. P.l must lend strong support to the in Schedule 'B' were inferenc" that the lands regarded at the dat.e of the maintenance deed as belonging to the estate of Thammiah out of which V cnkamma was entitled to maintenance. The &esumption that the proprrt.y had devolved upon Rudria.h and Ramanna is evidently not true. So long as the daughte_r~ or any of them were alive, they were, according to the Hindu law applicable to the :Madras Presidency, owners, though for their lifo·time only, of the estate left by Thammia.h. Ext. P-1 docs therefore land support to the oa.sc of the plaintiff that the property was regarded as belonging to the family in which all persons who were living in the house of Thammiah, including the ,two daughters·in·law had interest. After maintenance was provided to Venkamma hy Ext. P-1 her name was omitted from the. muchilikas and .the pattas subsequently executed. Pattas D-G and .. - ' - ·• 1961 Sunkavilli Suranna v. Go!i Sathiraju Shah J. 3 S.C.R. SUPREME COURT REPORTS 66\J D-8 are as we have already stated, in faV"our of Chetamma and Ramanna. It is true that rent was enhanced by the zamindar from time to time under the muchilikas. During the life-time of Thammiah the annual rent was Rs. 419-8-0 and it remained unchanged, but after his death the rent, even though the area of the land continued to be the same, was enhanced to Rs. 481-8-0 under Ext. D-4. There is some error in totalling np the amount of rent, but the enhance ment of rent by Rs. 52 is substantially the result of alteration of rent of Sr. No. 315. Originally the rent of Sr. No. 315 Was Rs. 20-3-9: it 'lvas enhanced to Rs. 81-3-9. Under Ext. D-5 the rent is Rs. 537 (it should have been Rs. 4 73), but that again, is the result of some error in totalling, the only enhancement being in respect of No. 358 which was increased from Rs. 5 to Rs. 6-8-0. In Ext, D-6 of the year 1904 the rent of this land was enhanced to Rs. 60-8-0 and rent in respect of Sr. No. 315 was enhanced to Rs. 91-3-9. The High Court has held that this enhancement of rent of the two lands Nos. 315 and 358 was presumably because the lands were irrigated, and, having regard to the circum stances, we think the inference of the High Court is correct. Enhancement of rent of the lands from time to time does not land support to the inference that fresh pattas and muchilikas were not in recog It is pertinent to nition of the previous rights. note t-hat in the records of the zamindar all the muchilikas in · respect of the lands bore No. 12, during the life time of Thammiah and after his death thev bore No. 23. The circumstance that the same. area of land remained in the occupation continuously of the family of Thammiah under Exts. D-1 to D-8 for a period exceeding 25 years It also lends support to the plea of the plaintiff. is true that by his notice Ext. D- 7 the zamindar called upon Ramanna and Chetamma to vacate the kumatam (which term is translated by the learned counsel for the respondent as 'home.farm') lands of the extent of 51 acres 72 cents. But by the year --- .. • 1·.: \ .. , ·-- 1961· S.,.luilli s.,..,... v. Gg/i Satltirt1Jtt SW.]. 670 SuPREME COURT REPORTS [1962) 1905 it waa well-known that 1egi3lation of the nature, wh icb was ultimately enacted as the Madras Est.au' Land Act, 1908, was on the legislative anvil and n<> rcl'anco can be placed upon the statements made in th9 notice which docs not appear to have been follo11.·ed by proceedingB, for en for< emc'lt of the claim to po~scssion. It is ocmmon ~r Jund that on Januar." 16, 1906, the zarnindar issued in favour of Chctamma and Ilamanna a patta in respect of the same lands for an annual rental of R~. 5i8-4-0, rent havin~ been. enh&nced in respect of Sr. No. 46 and 358 or.ly. The]High Court placed ekong reliance upon the circum:itancea that in all the muchilikas and patta~ the land~ were described as "jcroyati lands" nnd the tenants were described as "joroyati ryots"., The High Court obs('rved that "jeroyati ryot" was a well-known t~·rm indicating prima facie posses sion of occupancy rights. However, the state of the authorities in the Madra~ High Court to which cur at.ten ti on has been invited does not j11stify us in expn, ssing any definite opinion on that plea. In Zamindar of Bodokimidy v. Badankayala Bhimayya(' ), Curgenven. J .. held that the phrase 'on jiri.yati tenure' is onl.v used where occupancy rights exist. But b<>yoncl the bare statement in the judgn, cnt that "tho phrasl)" on jirayati tenure "being, so far 11s my <>XpHienre goee, only used where C•ccupancy rights exist", there is no further elaboration in the judgment. In (!t-aturi) L1ngayya Ayy11varu v. Eandula &'angiah ('),Wallace, J., without referring to the o>arlier judgmPnt of Curgonven, J., observed that the te~-m "jeroyatidar" did not imply that, the executant was an occupancy ryut. Herc also no reasons appear to have L1·.en given in support of the view. IuDadamudy Tatayya v.Kelachiria. Venkata s·ubbarayya Sast-i ('), D~vadoss, J., in th.c course of hearing ;m appeal cal1cd for a findmg irom the (I) A.1.R. 927 Mad. 76. 12) A.l.R. 1928 Mad. 58. (~) A.l.R. 1928 Mad. 786. 1111 Sunkat•illi Suran.no v. Coli Sathiraju Sh.ah]. ... i -r ,,.'. . _ . ..,.. .3 .S.C.R. SUPREME COURT REPORT$ 671 trial Court as to the meaning of the word "jero yati" as used in the Vuyynr Zamindari a~rl a~~~ the meanin()' of the expression "savaram Jeroy1t1 used in doc~ments in that estate. The Subordinate Judge recorded evidence on the question referr.ed to him, and observed after referring to Brown's Di"tionary and Wilson's Glossary, that tho word "jeroyiti land" may mean "cultivable or arable land", but it was only the context that must decide whioh meaning was to be given to the word. He also observed that the word "jeroyiti" especially when prefixed to the word "right" or hakku had come to mean "rights of ocaupancy". This report oft.he Subordinate Judge, it appeMs, was accepted by the High Court. These are the only decisions of the . Madras High Court to whioh our attention was invited. The task of this Court, in ascertaining the special meaning which an expression used in the revenue administration and by the residents of 4 certain area has acquired, is indeed difficult. If the expression "jeerayot" is a local variation of "Zeerait" used in the revenue administration, especially in Northern it may mean "assessed" land, or "agricultural" land. On the materials placed, we are unable to express any definite opinion on thi1 pa.rt ef thit ease of the plaintiff. India. To summarise, there is no evidence to show t.Jiat occupa.tion of the Janda by Th'lmmiah commenc ,;d under the zamindar ; and there is no evidence as to the terms on which Thammiah or his predeces w,rs were inducted on tho lands : the oommence t•lent of the tenancy and the terms thereof are lost in antiquity, but Thammiah and his descendants are proved to h11ve continued in possession of land uninterruptedly till the enactment of the Madras In the light of the pre- Estates Land Act, 1908. sumption that the zamindar is, unless the contrary is proved, the owner of the melvaram and the ryot the owner of the kudivaram the inference is irre sistible that Thammiah was the holder of 19C1 Su.ik-:wiUi S11ranna v. Coli Sathirairi . ~hah ]. Gi2 SUPREME COURT' REPORTS (1962] occup:m:v rights in the lnnds and that t.hese rights cle\·oh·e<l upon his successors anrl that the occu pancy right.s in the lands were not aoquirNl by virtue of t.lw provisions of ?ifaclras Act I of l!l08. · . Ileforn parting with the caso, a minor question relatinir t0 rncsnc prr•fits awarder! to the plaintiff ancl dt·fendants 31 and 32 must be mrntioncd. Ilv his plaint the plaintiff claimed rncmn profits in respect of his shan• for three years prior to the date of the suit. He valued the claim for mrsno profits at Rs. :i,800-past profits on plaintiffs I/3rd Bhare for two years 1!!40 and lfJ4 I at Rs. 2 ,:?SO and past nwsm· profits on plaintiff's I /3rd shares for the year W-l:? at Rs.1,520. The trial court dismissed tho pbi11tiff's suit as to his share in property described in Sehcdulr 'B'. The High Court in a.warding a third sharn lo the plaintiff and another third share to def"n<lanh :u and :l:! collectively also awarded past tn«sn0 pr0fits from the 18th of )farch, I 93.'i, i.e., the elate of the death of Rha\•amma, along with future mesnc pr'.lfits rrg; mling the shares in the B all!! the C ScheclulPs prnpcrties. But the High Court coul<l not award nwsne profits prior to Auizcrnt, 19JQ which ha<l ne\'!'l' been claimed bv tho pl<~intifT in the suit. Wr' thcr,.fore mnrlif.v the <lccrce of the High Court and direct th:it nwsne profits bcfon• the suit arc awarded from tlw 4th of August, th:it rnodifieation, the dccr!'o IU40. passccl by the Hizh Court is affirmerl and the Appeal iH dismissed with costH payable by the contesting dcfrndants to the plaintiff. Subject to App€!'l dismissed subje.rt In modifiw/.ion. ,_\. ,,•, C!i\·~ .~ ~ 1 •