Marina Veeraswamy v. Boyinapalli Venkatrayudu

ORDER OF REFERENCE TO A FULL BENCH.

Spencer, J. — This is a suit for eviction of a tenant cultivating lands in a village situated in the Zamindari estate of Pittapur, and for rent for Fasli 1324 and subsequent profits. The plaintiff failed in the first Court but succeeded on appeal to the Subordinate Court. I accept the Lower Appellate Court's findings on the 1st issue that the suit lands originally were karnam service inam lands, and that the plaintiff's ancestors had the occupancy right in these lands before the grant was made in their favour. Under the arrangement between the Rajah and the plaintiff (respondent) of 26th January 1913 through Exhibit IV (b), the respondent obtained a right to enjoy the suit lands hereditarily with powers of alienation, but without the condition of rendering service, on a payment of an annual rent of Rs. 7-11-0.

It is conceded by appellant's vakil that so long as the service tenure subsisted, the definition of “Ryoti land” in Sec. 3, Cl. 16 of the Madras Estates Land Act (Act I of 1908) prevented the defendant from becoming a ryot and acquiring any occupancy rights under Sect. 6 of the Act.

But it is argued that the effect of Exhibit IV (b) was to create a merger of the entire interests of the landholder and the occupancy ryot and to convert the plaintiff into a landholder under Sect. 8 (1) and consequently to convert the defendant from a sub-tenant into a ryot admitted by a landholder to possession of ryoti land within the meaning of Sect. 6 (1). It is obvious that the defendant cannot acquire the status of an occupancy tenant by this process if the occupancy right still remained vested in the plaintiff.

The explanation to Sect. 6 declares that a person having a right of occupancy does not lose it by subsequently becoming interested in the land as landholder. This has been treated in Muthu Reddi v. Muthu Venkatapathi Reddi(1), as providing an exception to the general rule of merger contained in Sect. 8 and in Zamindar of Sanivarappet v. Zamindar of South Vallur(2) it has been treated as not over-ruled by the latter section on the principle generalia specialibus non derogant.

I think that we should follow the above decisions and decide the point against the appellant. The only question then will be whether the respondent already possessed the occupancy right on 26th January when he gave the muchilika [Exhibit IV (b)] and received the patta (Exhibit C) from the Rajah of Pittapur. As stated already, the Subordinate Judge has found as a fact that he did possess it. The finding has been attacked as being based on pure conjecture without an exact identification of the plaintiff's old jeroyati land with his subsequent inam land. It was not to be expected that any better evidence than the ancient bhuband accounts (G series) should be forthcoming at the present day for comparing the state of things in 1795 and 1797 with these in 1851 and 1853. But the Subordinate Judge says that taking the evidence as a whole, it appears that the kudivaram right in the lands all along vested in the plaintiff's family. When as he observes, there is no document to show that the right ever belonged to any one else, I can find no reason to treat his finding as erroneous. The respondent seeks to support the lower Court's decree upon other grounds. He says (1) that he is not a landholder but a ryot; (2) that he has not admitted the appellant to possession, seeing that in his written statement the appellant denied the averment in the plaint as to an oral lease.

If the suggestion thrown out in Zamindar of Sanivarappet v. Zamindar of South Vallur, that Sect. 8 (1) relates only to the acquisition of the Kudivaram interest by landholders and not to the acquisition of landholders interest by ryots be adopted, there is no occasion for regarding the respondent's status as having been altered in the least degree by the circumstances of his having executed Exhibit IV (6). But in other decisions of this Court it has been held that grantees of Mokhasas or inams over portions of permanently settled estates are ‘landholders’ within the meaning of Sect. 3, Cl. 5 of the Madras Estates Land Act, notwithstanding that they pay kattubadi or quit rent to the Zamindar (See Brundavanachandra Horischandra Raja v. Ramayya, Venkanna v. Sri Raja Rama Rao and Venkatarayudu v. Subbarayudu(3). In the last mentioned case, Abdur Rahim and Napier, JJ., held that the interest of such persons as landholders was not diminished by the payment of quit rent, and the words ‘entire interests’ in Sect. 8 were only intended to exclude such interests as a mortgagee's.

Under Exhibits IV (b) and (c), the respondent obtained complete disposing power over the suit lands which necessarily included the right to lease them and collect the rents and thus under the definition in Sect. 3 (5), he became a landholder by virtue of transfer from the owner of the Melvaram over this portion of the Zamindar's estate. At the same time he did not cease to be a ryot, for according to the lower Court's finding he already possessed the occupancy rights over ryoti land which he had for the purpose of agriculture. Exhibit IV (b) mentions the agreement of the Rajah that the plaintiff should enjoy these lands “hereditarily from son to grandson with powers of alienation by way of gift and sale” which is quite consistent with his being an occupancy ryot, [see Sect. 10 1), Madras Estates Land Act] but inconsistent with the position of a mere lessee.

The respondent is therefore right in contending that he is still a ryot, but wrong in contending that he is not also a landholder.

His second contention that he has not admitted the appellant to possession is untenable in the face of his admission as plaintiffs second witness that all rents up to the end of 1913 have been paid; but as his own right of occupancy was not surrendered, such admission did not have the effect of creating a permanent right of occupancy in favour of his tenant.

I think that the decree of the Lower Appellate Court is right and that the second appeal should be dismissed with costs.

Since writing the above I have had the advantage of perusing the judgments of the learned Chief Justice and Sadasiva Aiyar, J. in Second Appeal No. 859 of 1918. The learned Judges delivered dissenting judgments on points of law, the same or similar to those upon which my learned brother and I have disagreed. The learned Chief Justice has given strong reasons for holding that holders of post-settlement minor inams in a permanently settled estate are not ‘landholders’ within the definition in Sect. 3 (5) Madras Estates Land Act and with this view I respectfully agree; but if this is so, the decisions in Appala Narasimhulu v. Sanyasi, and Venkanna v. Sri Raja Rama Rao and Venkatarayudu v. Subbarayudu, require reconsideration and only those persons who obtain a grant or transfer of a portion of permanently settled estate with full rights of ownership, like the plaintiffs in Brundavanachandra Horischandra Raja v. Ramayya(4) should be regarded as landholders.

My learned brother and I do dot agree on the question whether the respondent or the appellant occupied the position of occupancy ryot after the introduction of the Act in July 1908 and after the execution of the permanent patta and muchilika in January 1913.

As the solution of this question depends first on the legal construction to be put on the definition of ‘landholder’ in Sect. 3 (5), secondly on the class of cases to which the merger of occupancy rights in Sect. 8 (1) applies, and thirdly as to the effect to be given to the explanation to Sect. 6 of the Madras Estates Land Act, and as divergent views have been expressed by different Benches of this High Court on the first two points and as the meaning of the expression “subsequently becoming interested in the land as landholder” in the explanation to Sect. 6 is somewhat obscure, we refer to a Full Bench the following questions:—

1. “Whether at any time before the institution of this suit the respondent acquired the status of a land-holder in consequence of the grant of the suit lands by the Zamindar to him on a favourable quit-rent?”

2. “Whether the appellant gained and the respondent lost the occupancy right in consequence of the execution by the respondent of the permanent muchilika in 1913 and of the taking of rent from the appellant, under the operation of Sect. 6 of the Madras Estates Land Act?”

Bakewell, J.—The finding of the Lower Appellate Court is that prior to the enactment of the Madras Estates Land Act in 1908 the respondent held the land in question as karnam service Darimilla inam; that is, the land formed part of the Zamindari at the time of the permanent settlement in 1802 and was subsequently granted, subject to the condition of rendering karnam service, and thereafter the grantee held both the melvaram and the kudivaram rights.

When the Act came into force the land was therefore not ryoti land [Sect. 3, (16), (c)], but since it is part of the Zamindari and has not been shown to be otherwise excluded from the definition of “ryoti land,” when the service tenure ceased to exist the land became part of the ryoti land of the estate and subject to the provisions of the Act.

It appears to me to be immaterial whether the respondent or his predecessors in title had occupancy rights in the land prior to the grant of the service inam, because it effected a merger.

Sect. 8 (1) of the Act applies to transactions before or after the commencement of the Act, and enacts that whenever “the entire interests of the landholder and the occupancy ryot in any land in the holding have become united by transfer, succession or otherwise in the same person, such person shall have no right to hold the land as a ryot but shall hold it as a land-holder.”

The interest of the land holder is the right to collect rent Sect. 3 (5) and (11), the melvaram, and the interest of the ryot is to use and occupy the land for the purpose of agriculture, the kudivaram; and the section enacts that whenever the whole of these two interests becomes vested in the same person he shall be regarded as a landholder.

Sect. 6 (6), and the explanation thereto do not apply to transactions prior to the Act; and in my opinion the expression “becoming interested in the land as land-holder” in the explanation, when read with the words “entire interests” in Sect. 8 (1) and the definition of landholder in Sect. 3 (5), must be taken to refer to an interest which does not amount to a right to collect the whole of the rent of the land as the owner.

In the case reported in Zamindar of Sanivarappet v. Zamindar of South Vallur the facts assumed by the Court were that a person having a right of occupancy obtained a grant of the melvaram of the holding which then became part of a Zamindari of which the grantee was a half sharer. The grantee therefore did not obtain the entire interest of the landholder within Sect. 8 (1), nor a transfer of the occupancy right within Sect. 8 (2), and the explanation to Sect. 6 (6), was held to apply.

I think, therefore, that it is sufficient to consider the position of the parties on the 26th January 1913 when the respondent and the Zamindar executed the documents described as permanent muchilika and patta. These documents recite disputes between the parties as to the condition of rendering service for the land and in effect constitute a grant of an absolute interest in the land to the respondent subject only to the payment of a yearly sum of Rs. 7-11-0.

The plaint alleges that the defendant entered upon the land as the plaintiff's tenant in 1906, and that his tenancy had been renewed yearly at an annual rent of Rs. 130; and the defendant's written statement avers that the rent was Rs. 90. The sum reserved by the grant of 1913 was in either case much less than the rack rent of the land, and the grant therefore conveyed the melvaram and kudivaram subject only to payment of a small quit-rent.

Quit-rent is only included within the definition of rent in Sect. 3, (11) of the Act for certain purposes, [Sect. 3, (11) (c)], and is clearly not payable “for the use or occupation of land for the purpose of agriculture” within the meaning of that sub-section; and accordingly the plaintiff did not become a ryot under the grant, [Sect. 3, (11)], and was not admitted as such to the possession of ryoti land within the meaning of Sect. 6. I think that the reservation of a quit-rent which leaves the grantee in enjoyment of substantially the whole of the rent of the land as defined by the Act does not prevent the grant from being a transfer within the meaning of Sect. 3 (5), and that the respondent is a “person entitled to collect the rents of a portion of the estate by virtue of a transfer from the owner” and therefore falls within the definition of a “landholder” contained in that sub-section. (See Venkanna v. Sri Raja Rama Row, Tungula Mallana v. Gottumukkala Ramarazu and Venkatarayudu v. Subbarayudu.

It follows that the grant of 1913, by abolishing the tenure of service converted the land into ryoti land, and by transferring the landholder's rights to the grantee made the respondent a landholder.

At the date of the grant the appellant held the land for the purpose of agriculture on condition of paying rent, and subsequently thereto by the grant of a lease for a year for the same purpose he was admitted as a ryot to possession of ryoti land by the landholder and thereby acquired a permanent right of occupancy under Sect. 6 of the Act.

For the reasons given by my learned brother, I agree with the order of reference proposed by him.

[This Second Appeal came on for hearing on the 30th and 31st March 1920 in pursuance of the Order of Reference to a Full Bench dated 18th December 1919, before a Full Bench as constituted above]

Mr. V. Ramesam for the Appellant.

Messrs. P. Narayanamurthi, P. Somasundaram and K. Kamanna for the Respondents.

OPINION.

We are all agreed that the plaintiff in this case was not a person owning “an estate or a part thereof” within the meaning of Sect. 3 (5) of the Madras Estates Land Act, as, by the terms of the patta and muchilika Exhibits C and IV (b) dated 20th January 1913, he continued to hold under the Zamindar. We are, also, of opinion that he was not “a person entitled to collect the rents of the whole or any portion of the estate by virtue of any transfer from the owner or his predecessor in title” within the meaning of the rest of the section. The plaintiff's ancestors were estate ryots before the lands became Karnam service inam lands, and their lands again became ryoti land within the meaning of the Act, under the definition in Sect. 316, when the Karnam service came to an end in January 1913. The effect of Exhibits C and IV (b) was to grant the plaintiff, who thereby regained the status of a ryot, a remission of the greater portion of the rent payable by him to the Zamindar, and not to transfer to him any right to collect rents from third persons. We accordingly answer the first question referred to us in the negative. In this view the second question does not arise.

K.V.SFirst question answered in the negative.