T. R. BHAVANI SHANKAR JOSHI v. April 21

The Ster.tar11 of State in Oouncil of India v. Kamaeloee Roys 8<1oh•ba, (1859) 7 /,[,[.A. 476,.lijoviamba Bavi Saiba v, K·•mkn•hi Ra~,; Saiba, (1868) 3 M. H. C. R 424, Srimant Oho•11 R~ja Saheb Moyitai v. 8und11ram Ayyar, (1936) L. R. 63 I.A. 224 llnd Chidambaram CAettiar v. Rama•wamy Odayar, [ 1957] 1 M. L. J. 72, relied on. Crv!L APPELLATE JuRIBDIOTION : Civil Appeal No. 54 of 1952. ApJ>"&l from the judgment and decree dated l\le.rch 19, 1953, of the Madras High Court in S. A. No. 1513 of 1948. K. N .. Rajagopala Sas!ri, M. !. Khowaja and B. K. B. Naidu, for the appellant. M. G. Setalvad, Attorney-Gemiral of India, A. V. Viswanatha Sastri, R. Gopalalcrishnan, J. B. D1idachanji, 0. G. Mathur and Ravinder Narain, for the respondent. l!l62. April 2!. The Judgment of the Court was delivered by llidn,y<duUahJ, HIDAYATULLAH, J.-In this appeal on a certifi~"te, the appe lle.nt was tho origine.l Defendant No. l in "suit filed by the respon~ent under s. 55 ~ of th~ l\farlra.s Estates Le.nd Act, 1908, eeeking a direction for th" grant of a pa.tta to him in regard to the suit land. The suit was decreed by the Revenue Divisional Officer, Kumbakonam, who fix:ed the rent at the rate of Rs. 1·8-0 per mah, the land being a.bout 64 acres or l \12 mahs. This land originally belonged to what. was the Tanjore Palace :Estate, and by a suit known 1111 -.,-., 19!J'2 T. R. Bba•aol Bri.an'frar Jos4i •• s,,,asu,,t[ara . .W D"/Ja'1fJr Hida)'lllulld J, 2 S.C.R. SUPREME COURT REPORTS (23 1 of 1919, it fell to the share of Ry. Sivaji Rajah Saheb of Tanjore (Palaoe). It oame into the possession and ownership of the appellant by virtue of a sale on foot of a mortgage decree obtained by his father in a suit of 1926. The appellant obtained possession in 1963. While the suit was pending, the property was in the poBllession of four minors .through their maternal uncle, who was appointed as their guardian by the District Court, West , >: Tanjore. In 1932, the respondent took the suit property on lease from t.he guardian for 3 years, by a lease deed dated July 30, 1932. Under this lease, the respondent remained in possession and enjoy ment of this property till June 30, 1935, oultivating it, as he alleged, under pannai oultivation. During the execution prooeedings, however, a receiver waa appointed, and on May 12, 1935, the receiver granted a lease for 3 year from July 1, 1935. After the appellant entered into possession, he executed on August 13, 1936, a fr.esh lease deed for two years (faslis 1346 and 1347) and till the suit, according to the respondents, he continued in uninterrupted possession am;l enjoyment of the property. The cl<>im was m&de under the Madras Estates Land Act, 1908, as amended by the Third Amendment Act of 1936, under which oocupanoy rights vested in a person who w<1o11 in direct a_nd actual posseSllion of the land on June 30, 1934. The r~spondent, therefore, claimed the protection of the provisions of the Madras Estates Land Act, and.thus to be. 'I-· entitled to a patta in ocoupancy right on payment of a fair rent suggesting tts, 1-8-0. per mah as the fair rent. "\ y i; The appellant contended that the land in question known as PaUiawaram Thattimal Padugai was included in a revenue village, Therwm Padugai )--I Thattimal, and was neither an entire village nor an estate or part of an estate, and that thus the pro visions of the Madras Estates Land Act did ·not 1961 --T. R. Bli11t1a1d 6/taMar J Hlai v. Somruu11iara Uo,J>ana' ll/dayatullah J. 424 SUPREME OOURT REPORTS [1963] apply to it, because the land in question was not ryoti land. It was also averred by the appellant that the respondent was a mere farmer of revenue, tha.t is to say, an intermediate lessee, who was not cultivating the suit land him86lf or in pannai or with the help nf hired labour. Various other pleas were raised, but to them no reference is neoeseary, because the arguments in this Court were limited to the consideration of the findings on Issues I to 3 framed in the original suit. Thc>se Issues were : "(l) . Is the village wherein the suit propertiee are situated an inam within the meaning of Act XVIII of 1930? We.a it an Estate prior to the enactment of Act XVill of 1936 or did it become an Estate under the provisions of the Act ? (2) Is the Plaintiff a mere leesee or farmer of rent or the actual cultivator of the suit lands? (3) Is the Plaintiff a ryot entitled to occup1mcy rights under Act XVIlI of 1936 for the reliefs claimed in the plaint ?" ~ The suit, a.a already stated, was decreed by the Revenue Divisional Officer.~ On appeal, the District Judge of West Tanjore, dismi88ed the appeal, but modified the rent to Re. 4/·per mah as the proper and equitable rate of rent. On further appeal to. the High Court, the judgment and decree of the District Judge were confirmed with the modifioa. tion that the rent was determined at Rs. 7 /-per mall, and Ra. 1,350/-were fixed a.a a lump sum. There was a cr01111-objection, which was also dismissed. ..\ The question in this appeal is w~ether the property in suit being a part of the TanJore Palaoe Estate, oan be ~oneidered t? be an ''estate" within the meaning of the term m the Madraa Eatatea " .. 1". R. BhalXlm Shankar J oahi v. So"ltaaundara .'4oopanar Hit/apbdlola J. 2 S.C.R. SUPREME COURT REPORTS 425 Land Act. That it would be so if it was part of an inam was counsel for the appellant. He; however, contended that the manner in whioh the property reverted to the widows of the Rajah in 1862 after an act df State, did not show that the estate was freshly granted, but was restored to the widows who, enjoyed both the warams, in the same way as the mrams were enjoyed before. Much of , the ar~ments in the case, therefore, was directed to establishing that in 1862 there was a ''restoration" of the status quo ante rather than a fresh grant by the British Government. It is, therefore, necessary to recount, in brief, the facts leading up to the Governmbnt Order No. 336 of 1862. These facts have been given ' in considerable detail by the Privy Council in The Be,cretary of State in Oouncil, of India v. Kamachee Boye Bahaba (1), and they are also very well-known. The Rajah of Tanjore died in October, 1855, leaving no ma.le heir to succeed him. He left behind him a large number of widows and two daughters. After his death, Mr. F'orbes who was the Commissioner, under authorit.y of Government, seized the properties of the Rajah, and took them under his charge. He, however, reported to the Government that the private pro perties of the Rajah and others would be returned after , an enquiry into any claims that might be submitted. The senior widow, Kamachee Boye Sa.haba, thereupon, filed a Bill on the Enquiry Side of the Supreme Court of Madras, and obtained a decree that the seizure of the private propertiea was wrong, On appeal by the Secretary of State in Council of India, the Privy Council reversed the decree, and · ordered Bill. Thereafter, . a memorial was submitted the Queen and Mr. Norton Senior went the Government. to England to in 1862 As a ~he result of his efforts, the dismissal of , interview {lj 1U89)7 M.l.A. 476. L 198B T. B. Bhat:an; Sllanl:ar Joshi v. Somasundara Moopaner Bida.JOCul/ah J. 426 SUPREME OOURT REPORTS [1963) private properties were "relinquished" and "resto. red" by the Government Order No. 336 of 1862. Numerous ca.see were decided in the Madras High Court, some of which also went before the Privy Council. dealing with diverse items of the Tanjore Palaoe EAtate. The argument which is raised in this appeal, i'iz., that the Government Order was not a fresh grant but only led the restoration of tho properties ie not a new one, In Jijoyiamba Bayi. and was raised in those oaeos. Saiba v. Kamakshi Bayi Saiba ('), the High Court held that the Government Order was a grant of grace and favour to persons who had forfeited all claims to the personal properties of the Rajah by the act of State and was not a revival of any antecedent riL:hts which they might have had but for the act of State. A similar view of the grant was taken also in a Full Bench ca~<> in Sundaram ). The Full Benoh 011.se Iyer v. Ramachandra l yer (2 was concerned only with the Mokhasa IJllikadai village, and the que>thn 111.ter aro36 whether the decision sho11\d be limited to th'l.t village in this estate or extended to others. Subsequently, Abdul Rahim v. Swaminatha (') it was lield that the decision applied also to other villages, whioh must be regarded as part of the Ina.m Estate, whioh was granted by the Government Ord9r. Earlier still, the decision of the Full Bench was relied upon in several oases, to which reference has been made in Abdul Rahim v. Swaminatha (') as also in a recent case decided by the M·1dras High Court and reported in Ohidambaram Chettiar v, Ramaswamy Odayar ('). In the last mentioned case is to be found a list of most of the decidions under which the Order was inttrpreted as a fresh grant. Indeed, the Privy Council in Srimant Chota Raja Saheb Mohitai v. Sund aram Ayyar1 ') referred to the Government Order as (1917) 1.L.R 40 Mad.389. [ 1957] I M.LJ. 72. (186R) 3 M.H.C.R. +24. l•L.R. { 195'1 Mad. 7•4. (I) (3) (21 \4) (5) (1936) L.R. 63 I.A. 224. Ir68 T. B. Bhat1ani Shankar Joihi v. Somaiutfdara Moopanar -H•r.a)atullah J. 2 S.C.R. SUPREME COURT REPORTS 427 grant and to the recipients of the property in 1862 .as the grantees. There are, however, oases In Maharajah of which a contrary note was struck. Kolhapur v. Bundaram Iyer,(') Spencer, O.C. J., app· ea.red to doubt the decision of Scotland, C. J., in Jijoyiamba Bayi Saiba v. Kamakshi Bayi Baiba (') that there was a grant of grace and favour in 1862. A similar discordant note was struck in Bundaram v. Deva Sankara \'); but these oases have been subsequently explained or not accepted on point. In the judgment under appeal, the Divisional Bench has also referred to this consistent view held about the ·Government Order, and it must, ther8fore, be assumed tha.t for nearly 100 years the Madras High Court has held the view which was first expressed by Scotland, C.J. Apa.rt from the faot that it would not be open to U£i to disturb titles by reversing this long line . of decisions, we are of opinion that the argument.a that have ·now been raised are not sound. It is contended that the act of State begun - in 18511 by Mr. Forbes· was not really over till 1862,·and during the period, enquiries were made the return of the private properties of the Rajah, and thus the act of titate did not extinguish the original title, but it was restored without there being a fresh grant. The Government Oider of 1862 was read to U8 to ~ow that it was not worded as a grant but.as a oommunique by which the deci sion to relinquish and restore the properties was conveyed. It is also argued that in the despatches, Mr. Forbes had himself said that enquiries would b11 made abOut the private properties of the Ra.jab, which would be scrupulously returned, and thil8 even at that time there was no intention to complete, so to. ;;speak. the act of State against the private properiee. · · · (186sJ 3 M.H.C.I.. •Zf. (2) (I} (i9Jt) 1.1.,tt. 4' Mad. i. (S) A.l.R .. 1918 Macl. 4211. ·• ;( 1962 T. R. Bhavani S /uJ,,J:., J oahi •• SnmamMara Moopanur llitfoyatu/lah J. 428 SUPREME COURT REPORTS (1963) The first question to decide is whether the act of State was directed against 01,Jy the raj properties or against the private properties as well. Here, the decision of the Privy Council in Kamache,e Boye Sahaba's case 1 'J repeld the ar11ument of the appel· lant completely. Kamachee Boye Sahe.ha filed a Bill for the return of the private properties, and the Privy Council held that 11.8 the seizure was made by the British Government acting as a S.)vereign power through its delegate, the East Iodia Company, it was an act of State, into the propriety of which the municipal courts had no It pointed out that the jurisdiction to enquire. enquiry which was to be made was not in relation to the private properties of the Rajah but in connection with certain other properties which, though belonging to third parties, were held by the Rajah. It observed, however, in respect of all the properties that were seized, as follows : y ' . " ..... .if the Company, in the exercise of their Sovereign power, have thought fit to seize the whole property of the late Rajah, private as well as public, does that circum- stance give any jurisdiction over their acts to tho Court at Madras ?" .., and it answered that no difference was made bet ween the private and public properties, and the Madras Supreme Court had no jurisdiction over the seizure of either. It alao mentioned that the letter of .Mr. Forbes, that the private properties of the Rajah would be. returned after a.n enquiry, 'Yas wronglv construed. It pointed out (and we tbmk quite oorrectly) that the distinc~ion ma.de _in the letter between private a.ad pubhc properties ap· plied riot to the properties of the Rajah. but to euoh properties . which might have been seized by the officers as in the possession of, or a.ppa.rently belong· they belonged ing the Rajah, while, (i) (1859) 7 M.I.A. 476, in faot, ~ • 2 S.C.R. SUPREME COURT REPORTS 429 to or were subject to persons. It was these claims which were investigated, and the Privy Council observed : , the claims of to'be "All claims which might be advanced, to any part of the property seized, py institu tions , or individuals were to be carefully investigated, and all to which a claim might be substantiated would be restored to the owner." 196B T. R. Bha.va.ni Shankar Joshi •• S omasunda1a Moopanar It then conclud.id that whatever the meaning of the Jetter it showed that the Government intended to seize a.II the property which actually was seized, whether public or private, seizure as a whole was an act of State. \ .-i, ( The act of State h11ving thus materialised against all the properties, public or private, of the Rajah, no title could be said to have remained outstanding in any one. The Privy Council pointed out also that the heir~ such as there were could only look to the bounty of the British Government and had no claim or right in Jaw. In this state of affairs, it is impossible to construe the Government Order as anything but a fresh grant. It is stated that it is not worded as a grant, because it uses the words "relinquished" and "restored'' and also it does not set , out any terms or conditions on which the property was to be. held ; nor does it give a of the properties so granted. As regards the list of properties, it has always been felt that there must have been one, though it does not appear to have been produced in a court of Jaw. If the properties were sorted out, it is inconceivable that the Govern· ment Order would not specify also the properties to be returned, and such a list must have panied it, The document in question create~, its own conditions, and indicates the line of succession. The root of title of the family was thus the . ..,, . ---~ . , I / .~ ! /, ! ' . -~: 430 . SUPREME COURT REPORTS [1963] · 1962 T. R,. Bha:t:a11i Shan/car Joshi v. So-11.asu-,dara M1npa ar - Ililiayatul/ah J. Governm3nt Orde.r, and it has been.so observe'd . Ohidambaram Ohettiar v. Ramaswamy Odayar (I). \ The ne:x:t question rais~d is that the docu-. mentary evidence produced in the case does not disclose the grant of an entire inam village. Ref .. · erence in this connection is made to the Govern ment Order, in which in addition to the villages : _.there is a . mention of certain lands. · It is argued suit land is neith~r a Mokhasa village . that · the nor. a part of one, that it is one of three blocks which are separated from orie another. by rivers and distances, that there are no residential hou9es in. any _of the three blocks, and lastly that. th~ name of the village has ch'lnged from time to is · evidenced ' by ·the muchalikas of _ time, as 1875, 1882 and 1904 (Exs. D-8, D-9 and D-10). The case ofthe respondent w:is that the lr!okhasa village, Pat'iswaram Padugai, was a whole inam village, and it was governed by Madras Estat es. Land Act, 1908, that the respondent was in · direct and actual possession on June 30, 1934, and therefore within the protection of that Act. · ' The case of the appellant was· that Pattiswaram Padugai was - not a .whole · inam but .village in Thenam Padugai whicn- was· a was included revenue village, . and since Pattiswaram Padugai was not an entire viilage, it was neither an estate nor a pax't of an estate. All the three Courts have held in favour of the respondent. The ques tion is whether the decision proceeds on no evide nce. The evidenca in this behalf i~. oral as well as documentary. P.W. 2 . Venkatarama Ayyangar, claimed . to be the Pattiswaram Padugai for 24 He stated that Pattiswaram Padugai was a separate · village with account . and was . included in the Vattam of Thenam Padugai. Raja gopala Ayyanger (P.W.4) who was the in-charge karnam of Thenam years. separate (I) (1957) IM L-J. 72. . '. \ . - _,, - .. ; i ' t f l- ·- X. \ r 2 S.C.R. SUPREME COURT REPORTS 431 k~rnam of Pattiswaram Paduga·i, his father being the karnam, claimed knowledge of the conditions for 20 years. H'l stated that thongh Thenam Padugai, Patti8Waram Padugai and Vellapillaiyarpettai were inoluded in the Then-im P11d·ugai v:ittam and not contigaou~, there wure s~pa.rate a~c )Unts for each village. H·J proved Ex:. P-19 (N''· 12 account) and Ex:.P-19 (a) (No. 12 part II account) relating to this village. Then, t.here is the revenue record, Ex:. P-3, which, though not strictly a reo..ird of rights, is an official document of great value. It is described as Irrigation Memoir No. 7, Tenam Padugai Thattimal In village, Kumbakr)man Taluk Tanjore District. that, it is stated as follows : --T. B. Bhavani Shankar Joshi v. Somtl8Ulttfara Moopanar Hida.JGIUllahJ. "Tenampadtigai Tattimal is an unsettled mokhasa village lying 4 miles· south-west of Kumbakonan in the Cauvery Delta. It con sists of thrPP bits, the first bit lying between the Mudikondan the Kodamurutti rivers and Mndikondan and the Tirumalairajan rivers third bit near Sundarperumal kovil Railway station. The second bit is locally known as Pattiswaram Padugai while the third as vellapillia.rpettai. the second bit between "1 he village is governed by the provisions of the Madras E~tates Land Act I of 1908." This document of the year 1935 shows that the three blocks together constituted a Mokhaaa village of Thenam Padugai Thattimal. Mokhasa village bas been defined in Wilson's Glossary as "a village or land assigned to an individual either rent.free or at a low quit rent on condition of service." This definition was accepted by the Judicial committee in Venkata Narasimha Appa Hao Bahadur v. Sobha nadri Appa Rao Bahadur (I). Further, in the la, nd revenue receipts, Exs. P-10, P-11, P-12 and P-22, (I) [l90Sl l.' •• R. 29 Mad,52, 55, T. R. Bhawani $/111,J..,1~ Jo1hi •• SomMW'da1a Moop<ioar RidaJGlull<lh J. 432 SUPREME COURT REPORTS [1963] and in the quit rent receipt which have been filed, the village is described as a whole village and even the appellant in Ex~. p.15 and p.9 described the Pattiswaram TluittirrwlPai:lugai as a village attached to Mokhasa Thenampadugai Vattam. ' ' . In view of this evidence, it is quite clear that the finding concurrently reached in the High Court and the two Court below is based on evidence. It was contended that this evidence is of modern times, aud what is to be proved is the existence of e.n inam village in 1862, when the private properties of the Rajah were returned to his widows. There is no doubt that the evidence does not go to that early date, but the documents take it back to 1873, and there is nothing to show to the contrary. In this state of the evidence, we do not think that the High Court was in error in holding that this land is a part of an inam village, aud has been ao ever· since 1862. The fact that there are no housea and that the suit land is situated in three different blocks does not militate against the evidence, which hllll been produced on behalf of the respondent. Nor do we think that the change of name can count, if the identity of the land is properly established. It was also contended in the case in the Court of First Instance that the plaintiff was a farmer of revenue and an intermediary, because he had Jeaaed out the lands in his tum, and further that the Janda were the pri~ate lands of the appellant, in which the respondent could not claim any occupancy right.a. These two pleas appear to have been abandoned by the time the case !'68.ohed the High Court, and were not pressed upon us. In our opinion, the judgment under appeal is right in all the circumstances of the case. The appeal thus fails, and is dismissed with c0&ta. :. ... Appeal dia~. ••