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TMI Blog1955 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... s that took place before the matter reached this Court. The Settlement Officer, No. III, Chittoor, initiated proceedings suo motu under Section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948), to determine whether this village of Ekkattu Thangal is or is not an estate within the meaning of that Act. Notices were duly served as required by the enactment and the present appellants who are ryots in the village appeared before him. One E.K. Govinda Reddi who was a mortgagee purchaser of the village also appeared before this officer and raised the contention that the village was not an estate. Evidence was let in and after considering this the officer held that the village was not an inam estate, the main ground of his decision being that the village was held under a lease granted by the Government in September, 1914 and that there was therefore no grant in inam of the village so as to fall within Section (3)(2)(d) of the Madras Estates Land Act. The ryots who had appeared before the Settlement Officer took the matter in appeal before the Estates. Abolition Tribunal, Madurai, and the Tribunal by a majority reversed the decision of the Settlement Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the only relevant consideration, the learned Judge held that there was an error apparent on the face of the record and quashed the order of the Tribunal. It is from this decision that the present appeal has been filed by the ryots. 4. Before dealing with the contentions raised on behalf of the appellants, we shall deal with a preliminary objection that has been raised by Mr. Bhashyam Aiyangar, learned Counsel for the first respondent. His argument was on these lines. The question now before the Court is whether the village is one which is an inam estate which can be abolished and taken over by Government under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. If the village were within the Act it is the Government that could take it over. The only persons, therefore, who could be aggrieved by a decision against the applicability of the Act to this village are the Government. They have not filed any appeal. In conceivable: cases the ryots might be interested in challenging the decision. But those would be where the determination of the question whether the village is an inam estate or not materially affected their rights of occupancy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which they sought to prove by the statement which they filed before the Settlement Officer. In the light of these provisions we fail to see how the reservation of their rights of occupancy has any bearing on the determination of the question whether the appellants are or are not aggrieved by the decision of the learned Judge. We have no hesitation in overruling the preliminary objection and in holding that the appeal is competent and has to be heard on the merits. 5. We shall first deal with the contention that the learned Judge was in error in holding the village not to be an inam estate. The history of the village so far as could be gathered from the records appears to have been shortly this. Ekkattu Thangal was granted by the Nawab of Carnatic to one Kasim Ali Beg, but the date of the grant is not known, nor its terms or purpose. We know, however, that the grant was subject to a condition against alienation. This condition appears to have been broken by the descendants of the grantee, who having become indebted to one Shamier Sultan first mortgaged and then sold the property to him in 1787. Shamier applied to the Government of Madras for the recognition of his title to the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the lessee after repairing the breach. The order cancelling the lease was withdrawn on 2nd March, 1936. These proceedings would appear to indicate that there was no grant in inam but a mere lease and that the lessee could not be deemed to be an inamdar within Section 3(2)(d) of the Estates Land Act. There were, however, certain proceedings between the lessee and his tenants in which it was held that the village was a grant in inam so as to render it an estate within Section 3(2)(d) of the Madras Estates Land Act. These proceedings, however, which were between the ryots cultivating lands in the village and the landholder are certainly not res judicata as between the lessee and the Government for the purpose of determining whether the lease-deed of 1914 constituted the village of Ekkattu Thangal an inam estate to which the provisions of Act XXVI of 1948 applied. Indeed the learned Counsel for the appellants did not raise any such contention before us, though the same had been urged before the learned Judge whose decision is now under appeal. 6. The question whether the village is or is not an inam estate has to be decided solely on the construction and legal effect of the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Do these lease-deeds of 1796 and 1914 constitute grants of the land revenue of a village without the kudiwaram to a person not owning the kudiwaram thereof? In regard to the lease of 1796 which was executed by the East India Company, there is a further question whether this grant has been recognised by the British Government. 10. We shall first consider the deed of 1796 and the terms which have been relied upon by the learned Counsel for the appellants as supporting their case that the lease was a grant or an assignment of the melwaram to a person not owning the kudiwaram. This indenture of lease after setting out the parties to the deed proceeds to effect the demise in these terms. The President and Council having demised, leased, let and to farm letting and by these presents to demise, lease, let and to farm let unto the said Shamier Sultan, his heirs, executors, administrators or assigns.... 11. Then follows the clause describing the parcel of the land which is the subject of the demise which we have already extracted. The habendum is in these terms: The lessee was to have and to hold together with all benefits and advantages arising or to arise thereby unto t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant in inam the contention was that what was intended to operate as a grant took the form of a lease because of the theory which still prevailed at the end of the 18th century that the State was the owner of the soil and all that it could grant was merely some right in the land a doctrine akin to that prevailing in feudal times in England. It was therefore argued that having regard to the theory prevalent at that date a lease was thought of as the medium for compassing the grant. An inam, it was urged, signified a reward or favour and meant merely a beneficial alienation or a gift of a benediction by a superior to an inferior. Reference was made to the definition of the term in Wilson's Glossary as a grant of rent free land without any reference to perpetuity or any specific condition. Our attention was also invited to a passage in Baden-Powell, Land System, Vol. 3, page 79, which runs: All native Governments were in the habit of rewarding favourites by granting the revenue on the land whether they granted the land itself or not. This gift it was said might assume various forms. It might take the form of a grant of land on which no assessment had been levied or on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly bear on the nature of the transaction. 15. The decisions on which learned Counsel relied in support of the position that even a lease might be a grant in inam were: Secretary of State for India in Council v. Srinivasachari, Ramalinga Mudali v. Ramaswami Iyer (1928) 29 L.W. 760, Secretary of State v. Varada Tirtha (1942) 2 M.L.J. 367 : L.R. 69 IndAp 22 : I.L.R. 1942 Mad. 893, and Secretary of State v. Krishnarao. What the Judicial Committee had to decide in Srinivasachari's case, was whether the shrotriem grant in the particular case conveyed the right to minerals in the village which was the subject-matter of the grant. The Board ruled that an inam grant may be no more than an assignment of revenue and the fact that the minerals on the land were reserved to the Crown did not detract from the grant being one in inam. The only point decided was that even where the land is the subject-matter of the grant the entirety of the interest of the grantor need not be conveyed by the grant. Their Lordships held from the surrounding circumstances of the particular shrotriem grant which was for the support of the grantee who was a Brahmin that the entirety of the interest of the gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created in Khaja Chamier by the mortgage by the Nawab in February, 1782. The learned Judge there said: Then comes the question is the grant to Khairunnissa a jagir grant or a grant in inam? For, it is this grant that is material, as the property, as I have said, has throughout retained its original character and it was on this argument that was held to be a grant in inam. Secretary of State v. Varada Tirta (1942) 2 M.L.J. 367 : L.R. 69 IndAp 22 : I.L.R. (1942) Mad. 893 was concerned with the right of an inamdar to right to water free of water cess the question depending on whether the grant of the village of Vagaikulam in which the channel was situated comprised the lands of that village or was merely an assignment of the land revenue on it. Their Lordships confirming the judgment of this Court held that the land itself was the subject-matter of the grant. The Inamdar was the Vyasarayaswami Mutt and it based its title on a grant made by a Muhammadan ruler in 1753. Though a copy of the grant was not available, there was proof that this had been produced before the Inam Commission in 1864. In the earlier registers the inam has been described as granted on Kattukuttagai tenure fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of the lands specified in the schedule A hereunder annexed. Their Lordships while holding that if there was proof that the original grant was in the form adopted in this draft, no more than the melwaram of the village could have been conveyed examined the evidence and pointed out that there was no proof that this form was adopted. Indeed there was no evidence that there was any cowle making the grant and it was only from the Inam proceedings as well as from the subsequent conduct of the Government that their Lordships drew the inference that the subject-matter of the original grant was the village itself and not the land revenue alone. The decision therefore does not help the appellants. On the other hand we have an indication as to what exactly would be the form of the cowle that is spoken of in these decisions. The passage from the draft of cowle which we have extracted above would clearly show that it is really a grant of unilateral benefaction and not a lease as in the present case. All these documents being of the early years of 19th century would conclusively show that there is no foundation for the argument of learned Counsel for the appellants that conveyance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the authorities in 1862 did not consider the lease of this village to be tantamount to a grant in inam. Next, there are proceedings of the Government when they refused to register the lessee as a landholder on the ground that the village was not an estate within the meaning of the Estates Land Act, a matter to which We have already adverted. Lastly, there are the proceedings already set out wherein the Government determined the lease of 1914 twice for non-payment of rent. In these circumstances, we consider that no value could be attached to the pieces of conduct on which reliance has been placed by learned Counsel for the appellants. 19. The proceedings between the landholder and the tenant when once it is conceded, as it has to be, that they are not res judicata as between the Government and their lessee are not evidence on which the tenure of that village can be determined; for the purpose of Act XXVI of 1948. They have therefore to be left out of account. 20. The next contention urged on behalf of the appellants was that this lease of 1796 is not a lease but a grant though it styles itself a lease and professes to demise the land because there is no rent reserved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term in the shape of a fine or a premium or is payable at the end of it. The time fixed for payment does not alter its essential nature as a consideration for the lease. We have already set out the clause in the indenture of 1796 regarding the payment of 100 pagodas and in the context in which it occurs it is clear that it is one of the terms which the lessee has to fulfil as part of his obligations under the expiring lease. The contention that it is a premium in respect of the renewed lease, which is the argument of Mr. Vedantachari, is not justified on a proper construction of the language of the document, for the stipulation is that unless the lessee paid the sum of 100 pagodas as part of the condition of the lease granted in 1796 at the end of the term in 1895 he could claim a right to a further renewal at the hands of the lessor. In these circumstances the 100 pagodas is clearly a reservation of rent in respect of the original term and the argument of learned Counsel based upon the absence of reservation of rent is not borne out by the terms of this document. 21. The next point to be considered is, assuming the lease is a grant, ignoring its bilateral nature and the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed earlier that the lease in question is not a grant in inam we feel it unnecessary to finally decide whether if it was a grant it was a grant of the land or merely of the revenue due on it. 22. The next head of argument was that there had been ah imposition of a quit rent of ₹ 21 per year after the lease of 1796 and that this amounted in effect to an enfranchisement of this inam grant which took the form of a lease. This argument appears to us far-fetched and not based upon any materials to support it. The whole basis of the contention is to be found in the fact that on some date not definitely ascertained the Government collected this sum of ₹ 21 per year from the lessee in lieu of rusums and maras payable as contribution for remuneration to village officers. To call this an enfranchisement is, in our opinion, a misuse of terms. If the inam was enfranchised, the renewed lease of 1914 appears to be meaningless. In fact in the face of the lessee's application for renewal of the lease there is no scope for any argument that the inam had been enfranchised by the imposition of a quit rent before 1895. 23. We are therefore clearly of the opinion that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the finding of the Tribunal that the village was an inam estate. The argument was that the jurisdiction of this Court in certiorari was limited to cases of error apparent on the face of the record and that the error if any in the judgment of the Tribunal in the present case could not satisfy this requirement and that on the other hand it was at the most an erroneous decision. We do not find it necessary to discuss or define the exact point of difference between an error apparent on the face of the record and an erroneous decision. As has been laid down in the recent decision of the Supreme Court in Hari Vishnu Kamath v. Syed Ahmed Ishaque (1955) I M.L.J. 157 : (1955) S.C.J. 267 : (1955) A W.R. 157, the question ultimately depends on the circumstances of each case. The majority of the Tribunal had laid down three propositions of law: (1) that the nature of the tenure should be determined by reference to the grant to Kasim Ali Beg, (2) that the form of the transaction as a lease of land in which the operative words were to demise, let and farm let did not detract from the transactions being a grant and (3) that the subsequent conduct of the lessee and his tenants in invoking the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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