(1.) The defendants are the appellants. These second appeals arise out of suits filed by the plaintiffs for the recovery of sums of money due for rent in respect of lands in the possession of the defendants. One of the contentions raised by the defendants was that the civil Court had no jurisdiction to entertain the suits, their contention being that the lands in respect of which the suits have been filed form an estate within the meaning of Clause (d), Sub-section 3, Madras Estates Land Act. Section 3(2)(d), Estates Land Act, defines an estate as a village of which the land revenue alone has been granted in inam to a person not owning the kudivaram, provided that the grant has been made, confirmed or recognized by the British Government or any separated part of such village
(2.) The law is settled that where a grant in inam is a grant of both the landlord's and the tenant's right in the land or as they are called the melwaram and the kudivaram, the land is not an estate; but if the grant is of the landlord's right or melwaram alone it is an estate; so that the question to be decided is whether the grant is of the land itself or only of the right to the revenue from the land. If it is the former the civil Court has jurisdiction to try the suits. If it is the latter, then the jurisdiction to try them will lie in the Revenue Court. Both the lower Courts held that the grant in this case consisted of both the melwaram and the kudivaram and hence that the civil Court has jurisdiction to try the suits. In second appeal the defendants-appellants contend that this conclusion is wrong and that the lower Court should have held the lands form an estate as contended by them, and this is the only question argued before me. The grant in favour of the plaintiffs predecessors is evidenced by Ex. A. The terms of the grant are as follows: Gift deed dated nil. Deed of gift of shrotriem executed and given by Mallavarapu Venkatachellam Garu to Pydimari Dikshatulu on 15 Makha Sudha of Manmatha year, corresponding to the glorious era of Salivahana 1698. Fixing a total annual shrotriem beriz of 120 (one hundred and twenty) Madras star pagodas in respect of M. Chintalapalem Paragane Gudlur inclusive of Sadarvar, Deeva, Tahariar, Divani, Va Nazr, etc., we have settled the shrotriem and made a gift of it in propitiation to God on this auspicious occasion of lunar eclipse with the pouring of water with gold from Fasli 1185. You shall get the lands cultivated extensively year after year, and make them yield, pay as aforesaid, the sircar beriz year after year and enjoy the entire produce realized therefrom as long as the sun and the moon last from son to grandson and so on in succession and be happy. Here enter usual Sanskrit slokas. (Signed) Venkatachellam.
(3.) Both parties agree that the word "fruits" or "usufruct" would better represent the original Telugu word than the word "produce" appearing in the last sentence in the translation. In Somayajulu V/s. Seethayya AIR 1923 Mad 1, when a grant somewhat resembling the present one in its features, came before this Court for construction the Full Bench held that the words of the grant were equally consistent with the grant of the revenue or of the land itself and that being so, according to the decision in Muthu Goundan V/s. Perumal Iyer AIR 1921 Mad 115, the presumption was that the grant was of both warams and that therefore the civil Court had jurisdiction to try the suits with respect to the "grant" in question. This decision was taken in appeal to the Privy Council: see the decision in Seethaya V/s. Somayajulu AIR 1929 PC 115. By the time the case was disposed of the Privy Council had held in Sivaprakasa Pandara Sannadhi V/s. Veerama Reddi AIR 1922 PC 292, that there was no presumption either way and that each case must be decided on its own circumstances and on examining the circumstances of the case before them the learned Judges came to the conclusion that the grant in that case was of the melwaram only and that therefore the civil Court had no jurisdiction to try the suits. The decision of the Full Bench was accordingly set aside. This decision of the Privy Council was not in existence when the lower Courts dealt with the present case. Mr. Somayya argues that the lower Courts based their conclusions on the decision in Somayajulu V/s. Seethayya AIR 1923 Mad 1, and that since the presumption that the grant would consist of both the melwaram and the kudivaram which was the basis of that decision was not accepted by the Privy Council in appeal, the lower Courts decision in the present case should be set aside following the Privy Council decision in Seethayya v. Suhramanya Somayajulu AIR 1929 PC 115. I am not satisfied that the lower Courts have based their decision on the decision in Somayajulu V/s. Seethayya AIR 1923 Mad 1.