MUTHU GOUNDAN Vs. PERUMAL IYEN AND FIVE ORS

JUDGEMENT

(1.) The judgments in Nandigam Subbarayulu V/s. Kannam Saheb (1919) M.W.N., 836 and in Sri Gadadhardoss Bavaji V/s. Suryanarayana Patnaik (to which I was a party) and in Narasavadhanulu V/s. Kamakshiah C.R.P. Nos. 610 to 616 of 1917 (unreported), proceeded upon the view which I think was not then seriously contested, that the effect of the decisions of the Privy Council in Suryanarayanna V/s. Patanna (1918) I.L.R., 41 Mad., 1012 (P.C) and in Venkata Sastrulu V/s. Seetharamudu (1920) I.L.R., 43 Mad., 166 (P.C.), was to raise a presumption that a grant to an inamdar was a grant of the proprietary interest in the land including both varams. This view was seriously challenged for the first time in Sri Sri Mahant Radhakrishnadoss V/s. Chitri Podhanum Appeals Nos. 160 of 1919 and 69 of 1918 (unreported), before Abdur Rahim and Moore, JJ., who held that the effect of the Privy Council decisions was that in the case of a grant to an inamdar there was no presumption one way or the other as to whether there was a grant of the proprietary interest in the land. This reference raises the question which of these two views is correct. Now the first thing to be observed is that in the two cases mentioned in the Order of Reference all that the Privy Council was called upon to decide was whether the lands in question were proved to be an "estate" within the meaning of Clause (d) of Sub-section (2) of Section 3 of the Madras Estates Land Act, as: A village of which the land revenue alone has been granted to a person not owning the kudivaram thereof.

(2.) Clearly the party claiming that any land is an estate within the meaning of this definition has the onus thrown on him of showing that the land revenue thereof alone has been granted to a person not owning the kudivaram. If there be a presumption that an main grant is a grant of the revenue only, he would of course be entitled to take advantage of it. The question whether there was such a presumption was an open one when the Act was passed. The earliest cases in which the question of occupancy right came before the High Court were cases of villages granted in inam to temples in Tanjore, and in all these cases it was held that the temple was the owner of the land and that there was a presumption against the existence of any occupancy right on the part of the tenants: Alagaiya Tiruchittambala V/s. Saminada Pillai (1863) 1 M.H.C.R. 264, Subupalayi Ammal V/s. Appakutti Aiyangar (1866) 3 M.H.C.R., 106, Chockalinga Pillai V/s. Vythealinga Pundara Sunnady (1870) 6 M.H.C.R., 164, Krishnasami v. Varadaraja (1882) I.L.R., 5 Mad., 345 (F.B.), Thiagaraja V/s. Ganasambanadha (1884) I.L.R., 7 Mad., 374, Chidambara Pillai V/s. Thiruvengadathiengar , Chockalingam Pillai V/s. Mayandi Chettiar (1896) I.L.R., 19 Mad., 485, Mayandi Chettiar V/s. Chockalinga Pillay (1904) I.L.R., 27 Mad., 291 (P.C.). Then came the leading cases of Appa Rau V/s. Subbanna (1890) I.L.R., 13 Mad., 60, Venkatanarasimha Naidu V/s. Dandamudi Kotayya (1897) I.L.R., 20 Mad., 299, Cheekati Zamindar V/s. Ranasoora Dhora (1900) I.L.R., 23 Mad., 318, establishing a presumption of occupancy right in zamindaris and other larger estates. There was some hesitation about extending the same presumption to inams; but after the passing of the Madras Estates Land Act, 1908, there were a series of decisions holding that there was a presumption that inam grants were grants of land revenue only which was sufficient to make the inam an estate within the meaning of the definition and so confer or confirm occupancy rights in the tenants. When the Privy Council in Suryanarayanna V/s. Patanna (1918) I.L.R., 41 Mad., 1012 (P.C) overruled these decisions and decided that there was no such presumption, the immediate result, as regards the question which they were considering, was, that the definition of "estate" had to be applied without the aid of such a presumption; and that, therefore, any person asserting that the land was an estate had to prove that the grant was of the land revenue only to a person not owning the kadivaram, and that, if he could not establish this affirmatively, he must fail. These decisions cannot in my opinion be construed as ruling that in these cases there is no presumption one way or the other.

(3.) There was no occasion for the Privy Council in Suryanarayanna V/s. Patanna (1918) I.L.R., 41 Mad. 1012 (P.C.) to rule expressly that there was a presumption that the grant is both of the melvaram and the kudivaram, as the initial presumption was settled by the definition in the statute. That definition, however, only applies when the inam granted is a village or a separated part of a village in which the grant is of the land revenue only. Here the case is outside the Act as the grant was of an unseparated portion of a village about 80 acres in extent; and it therefore becomes necessary to consider whether the proposition that such grant was of the kudivaram as well as of the melvaram is properly deducible from the decision in Suryanarayanna V/s. Patanna (1918) I.L.R., 41 Mad., 1012 (P.C.). In the course of the judgment their Lordships observed that the question was: was it a grant of the revenue only of the villages, or was it a grant of the proprietary right in the village, that is the soil of the village, which appears to suggest that it was one or the other. They then proceeded to reject the historical theory that in ancient times the ownership of the soil of land in India was not in the sovereign or ruler, and that the right of the ruler was confined to a right to receive as revenue a share in the produce of the soil from the cultivator; and they went on to reject the presumption founded on that theory that in the case of an inamdar it should be presumed, in the absence of the inam grant under which the inam was held, that the grant was of the royal share of the revenue only. Now, if there is no sufficient justification for a presumption limiting the grant to the royal share of the revenue only on the ground that that was all the sovereign had to grant, it seems to me to follow that the grant was presumably a grant of that which the sovereign had, viz., the proprietary right in the soil, subject, of course, to the occupancy rights of any of the cultivators holding under him at the date of the grant, as stated by their Lordships towards the close of their judgment.