ag 4
28.C.R. SUPREME COURT REPORTS | 421 T. R. BHAVANI SHANKAR JOSHI
Ve . . ; SOMASUNDARA MOOPANAR . (8S. K. Das, M. Hipayatutian and J. C. Saaz, JJ.)
Act of State—Properties of Late Ruler seized by Governmeni—Subsequent restoration to heirs of private properties—If amount to a grant—Nature of the property—Whether “estate Occupancy rights—Madras Estates Land Act, 1908 (Mad. 1 of 1908), as amended by Madras Act 18 of 1936, 8. 55.
The property in suit belonged to what was known as the Tanjore Palace Estate, The appellant became owner of the property in 1936 by virtue of a sale on foot ofa mortgage decree obtained by his father in a suit of 1926. The respondent had been in possession of the property by virtue of a lease deed dated July 30, 1932, and on August 13, 1936, he got a lease of the property for two years from the appellant. Under the Madras Estates Land Act, 1908, as amended by the Third Amendment Act of 1936, occupancy rights vested in a person who was in direct and actual possession of the Land on June 30, 1934. The respondent instituted a suit against the appellant for the grant of a patta in occupancy right on payment of a fair rent. The appellant pleaded that .the provisions of the Act were not applicable to the property in suit on the ground, inter alia, that as it was a part of the Tanjore Palace Estate it could not be considered to be an estate within the meaning of the term in the Act. The history of the Tanjore Palace Estate showed that after the Rajah of Tanjore died in 1855, leaving no male heirs, the Government seized all his properties. Subsequently, in .1962 the private properties of the Rajah were “relinquished’’ and ‘restored’? by the Government to the widows of the Rajah. The appellants contention was that the manner in which the properties reverted to the widows of ihe Rajah in 1862 after an act of State showed that it was not a case of a fresh grant by the Government but a restoration of the status quo ante, so that the widows enjoyed both the warams, as before,
Held, that the act of State having made no distinction between the private and public properties of the Rajah the private properties were lost by that of State leaving no right outstanding in the existing claimants. The Government order was thus a fresh grant due to the bounty
T.R. Bhavani Skankar Joshi v. Somasundaa Mooparar
Hidnyatullah J.
of the Government and not because of any antecedent rights in the grantees.
The words “relinquished”? or “restored” in the Government order did not have the legal effect of reviving any such right bscause no rights survived the act of State. The root of title of the grantees was the Government order.
The Secretary of State in Council of India v. Kamachee Roys Saheba, (1859) 7 M.I.A. 476, Iijoyiamba Bayi Saba v, Komkasht Bays Satba, (1868) 3 M.H.C.R 424, Srimant Chota Raja Saheb Moyitai v. Sundaram Ayyar, (1936) L. R. 63 I.A. 224 and Chidambaram Chettiar v. Ramaswamy Odayar, (1957) 1M. I. J. 72, relied on.
Crvi, APPELLATE JURISDICTION : Civil Appeal No. 54 of 1952.
Appeal from the judgment and decree dated March 19, 1953, of the Madras High Court in S. A. No. 1513 of 1948,
K.N: Rajagopala Sastri, M.J. Khowaja and B. K. B. Naidu, for the appellant.
M. C.Setalvad, Attorney-General of India, A. V. Viswanatha Sastri, R. Gopalakrishnan, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent.
1962. April 24. The Judgment of the Court was delivered by
HipayaTULLsH, J.—In this appeal on 4 certificate, the appellant was the original Defendant No. 1 io a suit filed by the respondent under s. 55 of the Madras Estates Land Act, 1908, seeking a direction for the grant of a patta to him in regard tothe suit land. The suit was decreed by the Revenue Divisional Officer, Kumbakonam, who fixed the rent at the rate of Rs. 1-8-0 per mah, the land being about 64 acres or 192 mahs.
This land originally belonged to what was known as the Tanjore Palace Ketate, and by a suit v a
28.C.R. SUPREME COURT REPORTS 423° of 1919, it fell to the share of Ry. Sivaji Rajah Saheb of Tanjore (Palace). It came 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 possession 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 the guardian for 3 years, by a lease deed dated July 30, 1932. Under this lease, the respondent remained in possession and enjoyment of this property till June 30, 1935, cultivating it, as he alleged, under pannai cultivation. During the execution proceedings, however, & receiver was 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 fresh lease deed for two years (faslis 1346 and 1347) and till the auit, according to the respondents, he continued in uninterrupted possession and enjoyment of the property. The claim was made under the Madras Estates Land Act, 1908, as amended by the Third Amendment Act of 1936, under which occupancy rights vested in a person who was in direct and actual possession.
of the land on June 30, 1934. - The respondent,
‘therefore, claimed the protection of the provisions of the Madras Estates Land Act, and.thus to be. - entitled to a patta in occupancy right on payment ofa fair rent suggesting ts, 1-8-0 per mah as the
' fair rent.
The appellant contended that the land in question known as Pattiswaram Thatitimal Padugai was included in a revenue village, Thenam Padugai Thattimal, and was neither an entire village nor an estate or part of an estate, and that thus the provisions of the Madras Estates Land Act did not
T. R. Bhasant Srankar Josht vw Senasundara Moopanar
Hidayatultah J.
7, R. Bhavani Shankar Joshi Vv.
Somasundara Wospanar iiidayatalak J.
424 SUPREME COURT REPORTS [1963)
apply to it, because the land in question was not ryols land. It was also averred by the appellant that the respondent was a mere farmer of revenue, that is to say, an intermediate lessee, who was not cultivating the suit land himself or in pannas or with the help of hired Jabour. Various other pleas were raised, but to them no reference is necessary, because the arguments in this Court were limited to the consideration of the findings on Issues | to 3 framed in the original suit. Those Issues were :
(1) Ie the village wherein the suit properties are situated an inam within the meaning of Act XVITI of 1936? Was itan Estate prior to the enactment of Act XVIII of 1936 or did it become an Estate under the provisions of the Act ?
(2) Is the Plaintiff a mere lessee or farmer of rent or the actual cultivator of the suit lands ?
(3) Is the Plaintiff aryot entitled to occupancy rights under Act XVIII of 1936 for the reliefe claimed in the plaint ?”
The suit, as already stated, was decreed by the Revenue Divisional Officer. On appeal, the District Judge of West Tanjore, dismissed the appeal, but modified the rent to Ra. 4/-per mah as the proper and equitable rate of rent. On further appeal to. the High Court, the judgment and deoree of the District Judge were confirmed with the modification tbat the rent was determined at Rs. 7/-per mah, and Re. 1,350/-were fixed as alomp sum. There was a crosa-objection, which was also dismissed.
The question in this appeal is whether the property in suit, being a part of the Tanjore Palace Estate, can be considered to be an “estate” within the meaning of the term 10 the Madras Estates
28.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 thatthe manner in which the property reverted tothe 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 warams wers enjoyed before. Much of .the — arguments 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 Governmént Order No. 336 of 1862. These facts have been given’ in considerable detail by the Privy Council in The Secretary of State in Council. of India v. Kamachee Boye Sahaba ('), and they are also very well-known. The Rajah of Tanjore died in October, 1855, leaving no male heir to succeed him. He left behind him a large number of widows and two daughters. After his death, Mr. Forbes who was the Commissioner, under authority of Government, seized the properties of the Rajah, and took them under his charge. He, however, reported to the Government that the private properties of the Rajah and others would be returned after: an enquiry into any claims that might be submitted. e senior widow, Kamachee Boye Sahaba, thereupon, filed a Bill on the Enquiry Side of the Supreme Court of Madras, and obtained a decree that the seizure of the private properties was wrong, On appeal by the Secretary of State in Council of India, the Privy Council reversed the decree, and -ordered the dismissal of the Bill. Thereafter,.a memorial was submitted to the Queen and Mr. Norton Senior went to England to interview the Government. As a result of his efforts, in 1862 the
(1) -(1859) 7 MLA, 476.
1°62
T. R. Bhavant Shankar Josht v. . Somasundara
Moopanar Hidayatullah J.
T. B. Bhavanj Shankar Joshi ¥v
Somasundara Moopaner
Bidayatullah J.
426 SUPREME COURT REPORTS [1963} private properties were “relinquished” and “restored” by the Government Order No. 336 of 1862. Numerous cases were decided in the Madras High Court, some of which also went before the Privy Council, dealing with diverse items of the Tanjore Palace Katate. The argument which is raised in this appeal, vtz., that the Government Order was not a fresh grant but only led to the restoration of the properties is not a new one, and was raised in those cases. In Jijoyiamba Bayt 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 rights which they might have had but for the act of State. A similar view of the grant was taken also in a Full Bench case in Sundaram Iyer v. Ramachandra [yer (?). The Full Bench case was concerned only with the Mokhasa Ullikadai village, and the question later arose whether the decision shoald be limited to that village in this estate or extended to others. Subsequently, in Abdul Rahim v. Swaminatha (') it was held that the decision applied also to other villages, which must be regarded as part of the Inam Estate, which was granted by the Government Order. Karlier still, the decision of the Full Bench was relied upon in several cases, to which reference has been made in Abdul Rahim v. Swaminatha (?)as also in a recent case decided by the Madras High Court and reported in Chidambaram Chettiar v, Ramaswamy Odayar (‘). In the last mentioned case is to be found a list of most of the decisions under which the Order was interpreted as a fresh grant. Indeed, the Privy Counoil in Srimant Chota Raja Saheb Mohitai v. Sundaram Ayyar(‘) referred to the Government Order as
(1) (1868) 3 M.H.C.R. 424. (2) (1917) 1,L.R_ 40 Mad. 389. (3) LL.R. [1985] Mad. 744. (4) [1957] 1 M.LJ. 72, (5) (1936) LR. 63 T.A. 224.
nd my
28.0.R. SUPREME COURT REPORTS 427 grant and to the recipients of the property in 1862 as the grantees. ‘There are, however, cases in which a contrary note was struck. In Maharajah of Kolhapur v. Sundaram Iyer,') Spencer, 9.0. J., appeared to doubt the decision of Scotland, ©. J., in Jijoyiamba Bayi Saiba v. Kamakshi Bayt Saiba (?) that: there was a grant of grace and favour in 1862. A similar discordant note was struck in Sundaram v. Deva Sankara (*); but these cases have been subsequently explained or not accepted on this point. In the judgment under appeal, the Divisional Bench has also referred to this consistent view held about the:Government Order, and it must, therefore, be assumed that for nearly 100 years the Madras High Court has held the view which was first expressed by Scotland, C.J. Apart from the fact that it would not be open to us to disturb titles by reversing this long line . of decisions, we are of opinion that the argumente that have-now been raised are not sound.
It is contended that the act of State begun in 1856 by Mr. Forbes was not really. over till 1862,‘and during the period, enquiries were made for the return of the private properties of the Rajah, and thus the act of state did not extinguish the original title, but it was restored without there being a fresh grant. Tho Government Order of
1862 was read to us to show that it was not worded — as a grant but.as a communique by which the decision to relinquish and restore the properties was conveyed. It is also argued that in the despatches, Me. Forbes had himeelf said that enquiries would be made about the private properties of the Rajah, — - which would be scrupulously returned, and thus even at that time there was no intention to complete, so to. speak, the act of State against the private properies. oe an
(1) (4924) TUR. 48 Mad. 1. (2)_((1868) 3 MELG.R. 424. | (3) ALR. 1918Mad. 428. 0
T. RB. Bhavani Shankar Josht
Ve Somasundara Moopanar Hic ayatullah J.
———
T. R. Bhavani Shankar Joshs v
Somazundara Moopanur
Hidayatullah J.
The first question to decide is whether the act of State was directed against ouly the raj properties or against the private properties as well. Here, the decision of the Privy Council in Kamachee Boye Sahaba’s case (') repels the argument of the appellant completely. Kamachee Boye Sahaba filed a Bill for the return of the private properties, and the Privy Council held that asa the seizure was made by the British Government acting as a Soverejgn power through its delegate, the East Iodia Company, it was an act of State, into the propriety of which the municipal courts had no jurisdiction to enquire. It pointed out that the enquity 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 :
‘«.....df 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 the Court at Madras ?”
and it answered that no difference was made between the private and public properties, and the Madras Supreme Court had no jurisdiction over the seizure of either. It also mentioned that the letter of Mr. Forbes, that the private properties of the Rajah would be returned after an enquiry, was wrongly construed, It pointed out (and we think quite correctly) that the distinction made in the letter between private aod poe. properties applied not to the properties of the Rajah but to euch properties which might have been seized by the officers as in the possession of, or apparently belonging the Rajah, while, in fact, they belonged
(1) (1859) 7 M.I.A. 476, ab +
28.0.R. SUPREME COURT REPORTS 429 to or were subject to the claims of other persons. It was these claims which were to be investigated, and the Privy Council observed :
“All claims which might be advanced. to any part of the property seized, by institutions ‘or individuals were to be carefully investigated, and all to which a claim might be substantiated would be restored to the owner.” :
It then concluded that whatever the meaning of the letter it showed that the Government intended to .
seize all the property which actually was seized, whether public or private, and the seizure as a whole was an act of State. .
The act of State having 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 heirs such as there were could only look to the bounty of the British Government and had no claim or right inlaw. 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 list 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 law. Ifthe properties were sorted out, it is inconceivable that the Government Order would not specify also the properties to be returned, and such a list must have accompanied it, The document in question creates, its own conditions, and indicates the line of succession. The root of title of the family was thus the
T. R. Bhavant Shankar Joshi v.
' Somasundara Moopanar
Hidaja,ullah J
| ° T. R, Bhavani Shankar Joshi v. Sonasuidara Moa ar
~ Midayatullah J.”
' oan a a oe
430 . SUPREME COURT REPORTS [1963] --
Governmant Order, and it has been'so observed: in
Chidambaram Chettiar v. Ramaswamy Odayar (}).
- The next question raised 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 Government Order, in which in addition to the villages -
_there is a mention of certain lands. ‘It is argued | that the suit land is neither a Mokhasa village nor,a part of one, that it is one of three blocks which are separated from one another by rivers -°-— ' and distances, that there are no residential houses in any of the tbree blocks, and lastly that. the name of the village has changed from time to
_ time, as is ‘evidenced’ by -the muchalikas of
1875, 1882 and 1904 (Exs. D-8, D-9 and D-10). The case of the respondent was that the Mokhasa village, Patiswaram 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 .wholeinam but -village
-was included in Thenam Padugai which- was a ‘revenue village, and since Pattiswaram Padugai was not an entire village, it was neither an estate nor a part of an estate. All the three Courts have held in favour of the respondent. The ques-
‘tion is whether the decision proceeds on no evidence. The evidenca in this behalf is oral as well as - documentary. P.W. 2 . Venkatarama Ayyangar, - claimed to be the karnam of Thenam and
Pattiswaram Padugai for 24 years. | He
_ stated that Pattiswaram Padugai was a separate -Village with separate account. and = was. included in the Vattam of Thenam Padugai. Raja-
. gopala Ayyanger (P.W.4) who was the in-charge:
(1). (1987) IM LJ. 72.
26.C.R. SUPREME COURT REPORTS 431 karnam of Pattiswaram Padugai, his father being the karnam, claimed knowledge of the conditions for 20 years. He stated that though Thenam Pudugai, Pattiswaram Padugai and Vellapillaiyarpettat were included in the Thenam Pudugai vattam and not contiguous, there were s>parate accounts for each village. H» proved Ex. P-19 (Nv. 12 account) and Ex.P-19 (a) (No. 12 part II account) relating to this village. ‘Then, there is the revenue record, Ex. P-3, which, though not strictly a record of rights, is an official document of great value. It is described as Irrigation Memoir No. 7, Tenam Padugai Thattimal village, Kumbakoman Taluk Tanjore District. In that, it is stated as follows :
“Tenampadugai Tattimal is an unsettled mokhasa village lying 4 miles south-west of Kumbakonan in the Cauvery Delta. It consists of three bits, the first bit lying between the Kodamurutti and the Mudikondan rivers and the second bit between the Madikondan and _ the Tirumalairajan rivers and the third bit near Sundarperumalkovil Railway station. The second bit is locaJly known as Pattiswaram Padugai while the third as vellapilliarpettai.
“Lhe village is governed by the provisions of the Madras Estates Land Act I of. 1908.”
This document of the year 1935 shows tbat the three blocks together constituted a Mokhasa village of Thenam Padugai Thattimal. Mokhasa village has been defined in Wilson’s Glossary as “a village or land assigned to an individual either rent-free or at @ low quit rent on condition of service.” This definition was accepted by the Judicial committee in Venkata Narasimha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur ('). Further, in the land revenue receipts, Exs. P-10, P-11, P-12 and P-22,
(1) [1905] 1.'R. 23 Mad, 52, 55.
I96z T. R. Bhavani Shankar Joshi
Ve Somasuadara Dfoopanar
Hidayawullah J.
—eee
T. R. Bhawani Shankar Joshi v. Somasusdara Moopanar
Fidayatullah J.
and in the quit rent receipt which have been filed, the village is described as a whole village and even the appellant in Exsa, P-15 and P-9 described the Pattiswaram Thattimal Padugai a8 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, and what is to be proved is the existence of an 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 getate 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, and has been so eversince 1862. The fact that there are no houses and that the suit land is situated in three different blocks does not militate against the evidence, which has 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 Firat Instance that the plaintiff wasa farmer of revenue and an intermediary, because he had leased out the lands in his turn, and further that the lands were the private lands of the appellant, in which the respondent could not claim any occupancy rights. These two pleas appear to have been abandoned by the time the case reached the High Court, and were not pressed upon us.
In our opinion, the judgment under appeal ia right in all the circumstances of the case.
The appeal thus fails, and is dismissed with costs. Appeal dismissed.