Aluru Kondayya & Ors Vs. Singaraju
Rama Rao & Ors  INSC 184 (20 September 1965)
20/09/1965 SHAH, J.C.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 681 1966 SCR (2) 92
CITATOR INFO :
R 1983 SC 608 (4)
Madras Estates Land Act (1 of 1908), s. 3 (2)
(d), Explanation 1, as amended by Act 18 of 1936 and Act (2 of
1945)-Estate-Grant of a named village-If can be presumed to be of a whole
In the village of Challayapalam, there were
six inams, namely, the Challayapalam Shrotriem and five minor inams but there
was no information as to when the inams were created and by whom. In two suits,
one filed by the shrotriemdars, against the tenants for a declaration that the
tenants did not have occupancy rights in the lands in their occupation, and the
other by the tenants for a declaration that they had occupancy rights, the
question arose whether the shrotriem was an "estate" within the
meaning of s. 3 (2) (d) of the Madras Estates Land Act, 1908, as amended by Act
18 of 1936.
The trial court held, on a review of the
evidence, that the grant was of the whole village within the meaning of the
section and that the tenants had occupancy rights. On appeal, the High Court
held that the evidence on record was inconclusive, that the onus of proving
that the ant was of an estate lay upon the tenants, and that, since the tenants
had Failed to discharge the onus, the question should be decided against the
In the appeal to this Court by the tenants,
the question was : if there was no evidence justifying an inference that the
grant was of a whole village, whether explanation 1 to s. 3(2)(d) (added by Act
2 of 1945) gave rise to a presumption in favour either of the shrotriemdars or
HELD : The suit of the shrotriemdars must
fail, because, the Explanation raises a presumption, where a grant is expressed
to be of a named village, that the area which formed the subject matter of the
grant shall be deemed to be an estate.
Raising of the presumption is not subject to
any other condition. The legislature has, by the non obstante clause in the
Explanation, affirmed that such presumption shall be raised even if it appears
that in the grant are not included certain lands in the village, which have,
before the grant of the named village been granted on service or other tenure
or have been reserved for communal purposes. The party contending that the
grant in question falls outside the definition in s. 3(2) (d), has to prove
that case, either by showing that the minor inams not comprised in the grant
were created, contemporaneously with or subsequent to the grant of the village,
by the grantor. [857 D-E; 861 C-E] By enacting the Explanation the intention of
the legislature was to declare occupancy rights of tenants in inam villages.
It would be attributing to the legislature
gross ignorance of local conditions. if it was held that the legislature
intended to place upon the tenant the onus of establishing affirmatively that
the minor inams were granted before the grant of the named village and that if
he fails to do so his claim is liable to fail. It is well-nigh impossible to
discharge such a burden in normal cases. Nor was it intended that, when the
evidence was inconclusive, the person who approached the Court for relief must
fail, for, as in the present 842 843 case, if the inamdar as well as the tenant
sue for relief, the application of the rule would require the court to adopt
the anomalous course of dismissing both the actions. In cases, which arose
after the Amending Act of 1936, reference to the presumption in s. 23 of the
Act would be wholly out of place, the applicable presumption being the one
prescribed by Explanation 1. The presumption under s. 23, that a grant in
favour of an inamdar was of the melvaram only, applied only in cases which
arose before the Amending Act of 1936. [857 G; 858 B; 860 B; 862 F-G] District
Board of Tanjore v. M. K. Noor Mohammad Rowther, A.I.R. 1953 S.C. 446 and
Varada Bhavanarayana Rao v. State of Andhra Pradesh,  2 S.C.R. 501,
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 341 to 343 of 1961.
Appeals from the judgment and decree dated
September 2, 1955 of the Andhra Pradesh High Court in Appeals Suits Nos. 342 of
1949, 789 of 1950 and 551 of 1951 respectively.
A. V. V. Nair and P. Ram Reddy, for the
A. V. Viswanatha Sastri, Alladi Kuppaswamy
and M. S. Narasimhan, for the respondents Nos. 1 and 2 (in C.A. No. 341 of
1961) respondents Nos. 1 to 3 (in C.A. No. 342 of 1961) and respondent Nos. 1
to 4 and 6 (in C. A. No. 343 of 1961).
The Judgment of the Court was delivered by
Shah, J. In these appeals a common question--whether a shrotriem grant of lands
known as "Challayapalem shrotriem" formed an estate within the meaning
of S. 3 (2) (d) of the Madras Estates Land Act, 1908-arises. The Court of first
instance on a review of the evidence was of the opinion that the grant was of
the whole Chellayapalem village within the meaning of s. 3 (2) (d) of the
Madras Estates Land Act, 1908, in force at the relevant time, and that the
tenants held rights of occupancy in the lands held by them. The High Court of
Madras disagreed with that view and held that on the evidence it was not proved
that the original grant was of a "whole village" or even of a
"named village" within the meaning of s. 3 (2) (d) of the Madras
Estates Land Act, 1908, and the first Explanation thereto, and that the onus to
prove that the grant was of a whole or of a named village being upon the tenants
in occupation of the lands in dispute, the claim of the shrotriemdars must
succeed. With certificates granted by the High Court, these three appeals have
Suit No. 42 of 1942 was filed by certain
tenants of lands in the village Challayapalem, District Nellore, for a
declaration that they hold occupancy rights in lands in their occupation and
for an injunction restraining the shrotriemdars of the village from "inter844
fering with their possession". The tenants claimed that "they and
their ancestors" were in possession and enjoyment of the lands for many
years and had been paying rent to the shrotriemdars, and were dealing with the
lands as owners, that all transactions in the Challayapalem shrotriem were
being on the footing that the village was an "estate" under the
Madras Estates Land Act, 1908, and that in any event the tenants held permanent
rights of occupancy in the lands acquired in virtue of the provisions of the
Madras Estates Land (Amendment) Act, 1936. This Suit was later numbered 37 of
The shrotriemdars filed suit No. 2 of 1946
against fifteen named defendants for a declaration that the tenants in
occupation of the lands in the village did not hold permanent occupancy rights.
Later, permission under O. 1 r.
8 Code of Civil Procedure to sue the named
defendants as representatives of all the tenants in the lands of the shrotriem
grant was obtained. In this suit the shrotriemdars did not claim any relief for
possession : they merely sought to reserve liberty to institute separate proceedings
in that behalf and claimed that they were entitled in enforcement of notices
served upon ten out of the named defendants to call upon them to deliver
possession of lands occupied by them.
There was one more suit, No. 93 of 1947,
which raised a dispute as to the right of occupancy in a small area of land
admeasuring 1-90 acres. The plaintiff in the suit claimed that he had acquired
the right of occupancy by purchase the original tenant of the land. The fourth
defendant in the suit who was the principal contesting party claimed that he
was a. grantee occupancy rights from the shrotriemdar.
The three suits were tried together. The
tenants claimed in the principal suit No. 2 of 1946 occupancy rights in the
lands hold by them, on three grounds :
(1)that the tenants of agricultural lands
were, by immemorial custom of the locality in the Nellore District, occupancy
(2)that the tenants had acquired by
prescription or by the doctrine of lost grant the rights of permanent
occupancy; and (3)that the grant was of an estate within the meaning of s. 3
(2) (d) of the Madras Estates Land Act, 1908, and the tenants of ,he lands in
the estate were by virtue of s. 6 of the Act permanent occupancy tenants.
845 The trial Court, relying upon the
statement made in Boswell's Manual of the Nellore District, that the
"tenants..... of Chellayapalem like their brothers in other villages of
this District had right to occupy the land from generation to generation on
payment of rent prescribed by custom", held that the tenants' plea on the
first head must be sustained. The High Court declined to raise such a
presumption in favour of the tenants of the District including tenants of the
village Challayapalem, and correctness of that view was not challenged in this
On the second ground, the trial Court held
that on the evidence that the tenants' rights 'were independent of
prescription", and that they had not raised any plea of acquisition of
rights of occupancy by contract, express or implied. The High Court observed
that on the evidence no "foundation is laid for invoking the presumption
of lost grant to give a legal original, or lawful title to long continued
possession of the land by a particular tenant or tenants", and that the
plea of acquisition of the right of occupancy based on prescription was not
made out. This plea was also not reiterated before us, and the appeals were
supported only on the last ground.
The grant was, it appears, made by a Carnatic
Nawab which is recognised on all hands to be a shrotriem grant. There is,
however, on the record no evidence to prove the date of the grant, the names of
the grantor and the grantee, the extent and terms, of the grant, the purpose
and nature of the grant, and whether the grant was of kudiwaram as well as of
melwaram or of melwaram alone. The original deed of grant has not been produced
and is no other direct evidence of the terms of the grant from which the terms
of the grant may be gathered. The trial Court held that the later documents,
such as the statement in the Inam Enquiry, the Inam Fair Register and other
documents, conduct of the shrotriemdars and the tenants, and recognition
accorded to the rights of the tenants viewed in the light of probabilities
justified an inference that the grant was of the whole village, but according
to the High Court the evidence on the record was inconclusive and the case must
be decided against the tenants because the onus to prove that the grant was of
an estate lay upon the tenants, and that the tenants had failed to discharge
The problem must be approached in two
distinct brancheswhether the evidence justifies an inference that the grant was
of a whole village. and if there be no such evidence whether s. 3 (2) (d)
Explanation (1) of the Madras Estates Land Act gives rise to a presumption in
favour of the shrotriemdars or the tenants. Between the years 1640 to 1688 the
territory which now forms the 846 District of Nellore was under the sovereignty
of the Sultan of Golkonda. In 1688 this territory along with Golkonda passed
under the Moghal dominion. After the War between the East India Company and
Sultan Hyder Ali, it was arranged between the Government of Madras and the
Nawab of Carnatic that the latter should bear the cost of the military defence
of the Carnatic region. The Nawab agreed to assign the revenues of the Carnatic
region for a period of five years to the East India Company, and in pursuance
of this arrangement, the East India Company took over the administration of the
Carnatic region in 1790. On August 18, 1790 the Board of Revenue, Madras issued
instructions to the Collectors of Revenue appointed by the East India Company,
relating to the administration of the Districts. Dighton who was the first
Collector of the Nellore District under the new dispensation found on enquiry
that some villages in the District had been alienated.
on shrotriem tenure. He proceeded to
investigate the title of the grantees and issued a number of sanads. During the
course, of his management Dighton addressed on November 13, 1790 to the
"Chellayapalem Shrotriemdar Mutharaju Ramachandrayya Sthala Karnai
Varu" the following communication:
"You shall pay as per installments
varahas 283 (two hundred and eighty three) being the beriz in respect of your
shrotriem known as Chellayapalem village in Gandavaram Paraganas, as entered in
the circar shrotriem jabitha, into the Nellore Treasury, obtain receipt and
happily enjoy the produce realised from that village, you shall enjoy happily
by giving shares to the kapus as per mamool." Administration of the
territory by the East India Company came to an end on August 31, 1792. On July
31, 1802 the East India Company assumed sovereignty over the District of
Nellore and one Travers was appointed Collector in September 1801. Travers
recognised 207 shrotriem villages without disturbing the arrangements which
were then in existence, dispensed with the duties of sthalakarnams and
collected quit rent on their inams. It appears that the shrotriem of
Challayapalem was continued under the arrangement of the year 1790 which we
have set out.
Soon after the East India Company took over
the administration of what later came to be known as the Presidency of Madras,
Regulation 31 of 1802 setting up machinery for the better ascertainment of
titles of persons holding or claiming to hold lands exempt from payment of
revenue to Government under grants and for fixing assessment on such lands was
promulgated. A register of 847 Inams in Government Taluks was prepared and in
Col. 14 of the Inam Register the Inams registered pursuant to the Regulation
were set out. In the village Challayapalem are found mentioned in that
Register-three Inams the Challayapalem shrotriem (which is in dispute in the
present case), and two other personal Inams each of an area of 0-93 cents.
Apart from the preparation of this Inam Register, nothing substantial was done
under the Regulation till 1860.
About the acting of the shrotriemdars and the
tenants between 1802 and 1860 there is very little evidence. There is no
evidence as to when the five minor inams, including those two mentioned in the
Inam Register, were created, who paid the revenue, whether tenants were shifted
from lands in their occupation, or lands originally not occupied were brought
under cultivation. In 1860 the Inam Commission commenced an inquiry in the
Nellore District. Exhibit B-195 is a record of the statement made by the
shrotriemdors Muthuraju Subbarao and Muthuraju Subbarammanya of Chellayapalem.
In Col. 6 it is recorded that the grant was made during the time of the Nawabs
for maintenance so as to be enjoyed from son to grandson and so on in
succession, and in Col. 7 details of the lands are set out. Out of the total
area of the land 21 Gorrus 12/16 are recorded as poramboke, 5 Gorrus and It
Visas as minor inams, and 126. 31/4 visas as cultivated lands--dry, wet and
garden. The boundaries and particulars of the inam lands are shown as if the
inam grant was of the whole village, the description of the boundaries being of
lands of other villages to the East, South, West and on the North of lands of
Income of the shrotriem is fixed at Rs.
1,449-5-5 per annum and the total jodi at Rs. 1,225-12-2, leaving a balance of
Rs. 223-9-3 to the shrotriemdars. This statement is described as written and
filed by Muthuraju Subbarao and Subbarammayya shrotriemdars of Challayapalem,
and that it was confirmed by the Village Officers. Pursuant to the enquiry made
by the Inam Commissioner entries were posted in the Inam Fair Register. In Ext.
A-1 which is described as "an extract from the Register of Inams in the
village of Chellayapalem shrotriem in the taluk of Nellore" in Col. 21 it
was recited that the shrotriem "being more than 50 years old could be
confirmed. In the account of Fasli 1221 the income of the shrotriemdars for ten
years previous to that Fasli is given. It is shown in the margin that the
shrotriem is rented from Fosli 1263 to Fasli 1287, that is for a period of 25
years for the sum of Rs. 244 above the jodi. The cost of the repair to be borne
half by the tenant and half by the shrotriemdars. Almost the whole land is now
under cultivation and there is scarcely any room for further improvement. I
propose to give a deduction of Rs. 20 on 848 account of the cost of repair
which the shrotriemdar will have to pay and adopt the remainder as the value of
the shrotriem". In Cols. 10 & 11 it is recorded that the inam was
hereditary, but by whom it was granted it was not known.
It is common ground that Ext. A-1 did not
include the area of five minor inams for which separate entries Exts. A-2 to
A-6 were posted. The total area of the village as then estimated exceeded 466
acres and Ext. A-1 related to 453-06 acres, the balance being in respect of
Pursuant to the entries in the Inam Fair
Register, confirmatory title deeds were issued. Exhibits A-2 and A-3 relate to
devadayam grants : the extent covered by Ext. A-2 is 5-68 acres, and by Ext.
A-3 is 2-83 acres. In Cols. 1 1 & 12 headed "By whom granted and
written instrument in support of the claim" it is recorded that "the
name of the grantor and the written instruments in respect of the claim not
known". Three other entries in the Inam Fair Register were Exts. A-4, A-5
& A-6. Exhibit A-4 is in respect of land 3-12 acres, Ext. A-5 is in respect
of 0-93 cents and Ext. A-6 also is in respect of 0-93 cents. Here also it was
recorded that the "grantor's name and the date of the grant are not
known." The next public document to which reference may be made is the
"Descriptive Memoir of Chellayapalem shrotriem village in the Kovur Taluk
of the Nellore District"-Ext. A-7. It recites that the boundary of the
village had remained unchanged by settlement: the area prior to settlement was
(omitting fractions) 469 acres, and by the settlement it was found to be 767 acres,
showing an increase of 298 acres, but "nothing had been merged in this
village by the settlement." According to the settlement accounts of land,
the total cultivable area was 682 acres, minor inams 18 acres and poramboke 67
acres. Under the bead "minor inams included in the village" were
Personal Inams 5-08 acres Religious Inams 8-64 acres, Village Officers 2-87
acres and village artisans 1-80 acres.: Under Ext. A-7 the whole village was
described is the Challayapalem shrotriem. Apparently the village was identified
with the shrotriem.
These are all the extracts from public
records which have a bearing on the principal question in dispute.
The plaintiffs in suit No. 2 of 1946 are
purchasers under two deeds Exts. A-101 and A-102 respectively dated January 14,
1889 and August 7, 1889 from the previous holders. They are strangers to the
family of the original grantees, and it is not surprising that they are not in
possession of the deed of grant, and the earlier record relating to the
management of the village.
849 Exhibit B-1 the letter addressed by
Dighton to the shrotriemdar may at first blush suggest that the village was
accepted and confirmed as one of the shrotriem villages in the Gandavaram
Paragana. But Ext. B-1 was not of the nature of a sanad : it did not contain a
reference to the terms of the grant, the date of the grant, the names of the
grantor and grantee, and was based on information by a "Jabitha (list)
relating to Circar's shrotriems". In Boswell's Manual it is recited that Dighton
had investigated the title of the inamdars in the District and had granted
sanads, but Ext. B-1 did not purport to be a confirmatory sanad or a fresh
grant, or a deed embodying the result of any investigation regarding the title
of the Mutharajus to the village. Exhibit B-1 undoubtedly refers to Mutharaju
Ramchandrayya as "Chellayapalem Shrotriemdar" and fixes the revenue
at 283 pagodas in respect of "your shrotriem known as Challayapalem
village". But Dighton was a Collector of Revenue appointed by the East India
Company which was in 1790 not invested with de jure sovereignty over the
There is also no record of any enquiry made
by Dighton is respect of the Challayapalem shrotriem. The object of the letter
Ext. B-1 is apparently two-fold : to fix the revenue, and to ensure that the
tenants were not subjected to unlawful exactions. For the latter purpose it was
directed that the shrotriemdar was to enjoy the produce from the village by
giving shares to the kapus (tenants) is per mamool.Exihibit B-1 does not refer
to any minor inams, and treats the Challayapalem village as the shrotriem of
The statement -of Mutharaju Subbarao and
B-195-suggests that the original grant was in
favour of Mutharaju Sithanna-their ancestor. The statements in Col. 6 that the
grant is from the Nawab whose name is not mentioned, and in Col. 7 about the
details of the entire extent of the village, do not furnish any evidence as to
the character and extent of the original grant. It is true that the boundaries
of the lands granted are described as if the grant was of a whole village, and
nothing is mentioned about the origin of the minor inams. Exhibit A-1the Inam
Fair Register Extract-is in respect of 453-03 acres whereas the total area of
the village as then measured exceeded 466 acres. The area of 13 acres was
undoubtedly held by minor inamdars in respect of which entries Exts. A-2 to A-6
were posted in the Inam Fair Register. Those entries are of no assistance in
tracing the source of the minor inams. In each of those extracts under the head
"By whom granted and written instrument in support of the claim" it
is recited that the names of the grantor and the written instrument in support
of the claim "are not known". Sanads in respect of the minor inams were
issued because the inams p.C.I./65--11 850 were found to be more than fifty
years old. Inams in respect of which entries Exts. A-5 and A-6 are posted are
found mentioned in the Inam Register prepared under Regulation 31 of 1802, but
not the inams in respect of which Exts. A-2, A-3 and A-4 are issued. It also
appears that in the Inam accounts, the inam relating to Ext. A-2 appeared for
the first time in Fasli 121 1, the inam relating to Exts. A-5 & A-6 in
Fasli 1216, the inam relating to Ext.
A-3 in Fasli 1250 and the inam relating to
Ext. A-4 in Fasli 1260. But the accounts maintained under Regulation 3 t of
1802 ware apparently not maintained either regularly or in respect of all the
inams. In the absence of reliable evidence from entries in these rough
accounts, no inference that the minor inams were granted by the shrotriemars
could be made. The name of the grantor is not to be found in Exts. A-2 to A-6.
Exhibit A-7 proves the existence of minor inams, but has no bearing on the
question whether the whole village Challayapalem was granted in inam.
In Exts. A-48, A-49, A-104, A-105 and A-103
the predecessors-in-interest of the present inamdar had described the village
as "Challayapalem Shortriem"; in Exts. A-102, B-44, B-4-5, B-12 to
B-19, B-20 to B-43, the present inamdar's grandfather was a party and therein
also the inamdars were described as "shortriemdars of Chellayapalem".
There are documents Exts. B-2, B-3, B-4, B-5, B-6, B-9, B-1 12 & B-1 16 and
other documents in which the village is described as "Chellayapalem
Shrotriem". But these recitals have no evidentiary value in support of the
case that the whole village was granted.
The statements in Ext. B-195 related only to
a part of the village and that the income realised by the inamdar was Rs.
1,449-5-5 per year, out of which the revenue
payable to the Government was Rs. 1,225-12-2 and the balance enjoyed as inam
was only Rs. 223-9-3. Exhibit A-1-Extract from the Inam Fair Register-does not
lead to the inference that the area of the entire village was granted. The
recommendation made by the Deputy Collector was confined to the shrotriem.
The shrotriem was confirmed merely because it
was more than fifty years old, and what was confirmed was not the area of the
entire village, but the shrotriem grant admeasuring 45306 acres out of a total
area of 466 acres.
Evidence on the record about the actings of
the shrotiemdars and the tenants for the period 1790 to 1862 is vague and
inconclusive. It appears from the Inam Register that for a period of 25 years
the shrotriem was under an Ijara. The Inam Fair Register recites that garden
lands were irrigated from the private wells of 851 the shrotriemdars. From the
accounts for Fasli 1216 it appears that more than a hundred acres were then
lying uncultivated, but for some time before 1862 the whole village was under
On the other hand there is the evidence that
the tenants' successors were recognised in place of their predecessors, family
partitions were approved, and the shrotriemdars received their proportionate
shares from the divided sharers, and the tenants were not disturbed in their
possession. Chellayapalem has at all material times been included in the list
of villages maintained in the Collector's office. It was within the boundaries
which are not shown to have been altered. A village in the Madras region is a
geographical area of arable and waste lands, and contains the establishment of
a karnam, village munsiff and watchmen, and Chellayapalem has at all material
times been recognised as a village, and has been administered accordingly.
Minor inams were always regarded as part of the village, and popularly and even
in the public records the village was identified with the shrotriem. The
shrotriemdars have failed to produce their books of account relating to their
management. It is however admitted by them that they were collecting jodi from
the holders of minor inams and paying it into the public exchequer. It was
explained by S. Rama Rao P.W. 1 that he "collected the cess" as a registered
proprietor and paid it over into the treasury, because a demand was made upon
him by the Revenue authorities for the whole amount of land cess due.
But long possession, fixity of rent,
assertion of title in formal deeds may not necessarily justify an inference of
permanent occupancy rights. Again the mere fact that the village was treated as
one unit for the purpose of revenue administration does not justify any
positive inference and the fact that five separate sanads were issued in
respect of the minor inams without any evidence to prove the date and the terms
of the grant leaves the matter in doubt. Some of these circumstances may prima
facie support the inamdars and the other the tenants, but on a careful review
of all those circumstances, we are unable to disagree with the opinion of the
High Court that the grant was not proved to be of a whole village.
The second branch of the argument must then
The High Court expressed its conclusion on
this branch of the case as follows :
"Whether a tenant raises the plea that
the lands were in an estate and therefore ryoti and the civil court has no
jurisdiction, or the tenant relies upon the statute in answer to a suit by the
landlord either for an injunction, 852 sent case the burden of proof would undoubtedly
be on the tenantto establish the case which he put forward either to exclude
the jurisdiction or to negative the right of the plaintiff. The burden will be
on him to show that the grant was either a grant of a whole village or a grant
of a named village." In so enunciating the law, the High Court relied upon
the judgment of this Court in District Board Tanjore v. M. K. Noor Mohamed
Rowther(1) and held that in law the burden of proving that a particular grant
was a grant of an estate lay upon the tenants in all cases, and the tenants
having failed to discharge that burden their claim must fail.
In considering this argument, it is necessary
to make a brief review of the history of land tenures and the provisions of the
Madras Estates Land Act, 1908 as they were amended from time to time. After the
assumption of sovereignty in 1801, the East India Company promulgated the
Permanent Settlement Regulation 25 of 1802, which dealt with the tenure of
zamindars in their estates. This Regulation was passed on July 13, 1802 and by
s. 4 thereof inams were exempted from its scope. On the same date, another
Regulation 31 of 1802 was enacted. This Regulation dealt with inams and
provided for making rules for the better ascertainment of titles of persons
holding or claiming to hold, lands exempted from the payment of revenue to
Government under grants not being "Badshahi" or Royal and for fixing
an assessment on such lands. By s. 15 it was enacted that a register of inams
shall be kept in each zillah of the lands held exempt from the payment of
revenue, and that the register should specify the denomination of each grant or
sanad, the names of the original grantors or grantees, and the names of the
present possessors, with other particulars. It appears that nothing effective
was done to investigate the titles of the claimants to inams till 1859, when
the question of examining their title was taken up by the Inam Commission. The
Inam Commission made inquiries and issued confirmatory sanads. We have already
referred to Title Deed No. 1762 issued in respect of the grant in favour of the
The traditional rights of occupants of land
in the southern region were recorded by the Board of Revenue as early as in
1818 in its proceeding dated January 5, 1818 that :
"The universally distinguishing
character, as well as the chief privilege of this class of people, is their
exclusive (1) A.I.R. 1953 S.C. 446 853 right to the hereditary possession and
usufruct of the soil, so long as they render a certain portion of the produce
of the land, in kind or money, as public revenue; and whether rendered in
service, in money, or in kind, and whether paid to rajahs, jageerdars,
zamindars, polygars, motahdars, shrotriemdars, inamdars or Government Officers,
such as tahsildars, amildars, aumeens, or tanadars, the payments which have
always been made by the ryot are universally termed and considered the dues of
the Government." The Legislature with a view to define the relations
between landlords and tenants in inam villages promulgated Madras Act 1 of
1908. The material part of s. 6 (1) as amended by Madras Act 8 of 1934 and 18
of 1936 provided "Subject to the provisions of this Act, every ryot now in
possession or who shall hereafter be admitted by a landholder to possession of ryoti
land situated in the estate of such landholder shall have a permanent right of
occupancy in his holding.
Explanation (1).-For the purposes of this subsection,
the expression 'every ryot now in possession' shall include every person who,
having held land as a ryot continues in possession of such land at the
commencement of this Act.
Explanation (2).Explanation (3)..............
Section 3 sub-s. (2) defined the expression
"estate" within the meaining of the Act and insofar as it is material
for this case, it provided as originally enacted "In this Act, unless
there is something repugnant in the subject or context"Estate" Means
(a) any permanently-settled estate or temporarilysettled zamindari, (b) any
portion of such permanently-settled estate or temporarily-settled zamindari
which is separately registered in the office of the Collector;
(c) any unsettled palaiyam or jagir;
854 (d)any village of which the land revenue
alone has been granted in inam to a person not owning the kudivaram thereof,
provided that the grant has been made, confirmed, or recognised by the British
Government, or any separated part of such village;
(e)any portion consisting of one or more
villages of any of the estates specified above in clauses (a), (b) and (c)
which is held on a permanent under-tenure." "Kudivaram" is a
Tamil word, which signifies the cultivator's share in the produce of land as
distinguished from the landlord's share received by him as rent, which is
called "melvaram". "Kudivaram" has acquired a secondary
meaning, it means the cultivator's interest in the land, and
"melvaram" the landlord's interest in the land. The definition of
"estate" in cl. (d) gave rise to considerable litigation which called
for determination of two questions :
(1) whether there was a grant of the whole
village so as to make the area granted an estate; and (2) whether the landlord
to whom the land was granted owned the "kudivaram".
In cases which came before the Courts it
appeared that apart from the grant which was claimed to be a grant of an
estate, there were in each village other grants, religious, service and
personal, and evidence about the commencement of these minor grants and the
terms on which they were granted was not forthcoming.
In G. Narayanaswami Nayudu v. N. Subramanyam(1),
in a suit filed by the receiver of the Nidadaole estate for possession of
certain lands the tenant claimed that he had acquired occupancy rights under s.
6 of the Madras Estates Land Act 1 of 1908. There were in the village minor
inams of three classes : archaka service inams, village service inams, and
dharamdaya inams, and there was no evidence whether the grant to the
plaintiff's estate of the village was made first, or whether the minor inams
were granted first. It was contended on behalf of the plaintiff estate that
inasmuch as there were minor inams 'in the village, the Venkatapuram agraharam
could not be said to be "a village of which the land revenue had been
granted as inam within the meaning of s. 3(2)(d) of the Act". The Court
rejected that contention and observed :
"The definition in sub-section 2, clause
(d) was obviously intended to exclude from the definition of "Estate"
what are known as minor inams, namely, (1) I.L.R 39 Mad. 683.
855 particular extents of land in a
particular village as contrasted with the grant of the whole village by its
boundaries. The latter are known as "whole inam villages". The
existence of "minor inams" in whole inam villages is very common and
if these inam villages do not come within the definition of "Estate"
almost all the agraharam, shrotriyam and mokhasa villages will be excluded.
This certainly cannot have been the intention of the legislature. These minor
inams are generally granted for service to be rendered to the village or to the
owner and that seems to be the nature of the minor inams in this case."
The Court therefore held that s. 3 (2) (d) of the Madras Estates Land Act
excludes from the definition of "estate" minor inams, and a grant
which purports to be a grant of a whole inam village is an estate within the
meaning of cl.
(d) of s. 3 (2), even though it may be found
that there are lands held by grantees under minor inams. The Legislature in
1936 substituted for cl. (d) of s. 3(2) the following clause by the Madras
Estates Land (Third Amendment) Act, 18 of 1936:
"(d) any inam village of which the grant
has been made, confirmed or recognized by the British Government,
notwithstanding that subsequent to the grant, the village has been partitioned
among the grantees or the successors in title of the grantee or grantees."
Then came the judgment of the Madras High Court in Tulabandu Ademma v. Sreemath
Satyadhyana Thirtha Swamivaru(1). In that case the original grant was lost. In
Col. 6 of the statement prepared by the Inam Commissioner in that case, it was
recorded that "the former Zamindars granted the land, comprised within the
'Chekunama' for the math. There is no sanad as it was destroyed by fire. There
was no entry under the heading 'particulars of the inam land mentioned in the
sanad', but under the head 'Gudicut' (the total area of the village) was the
entry 158.23 acres, from which were deducted 25.10 acres described as private
lands, and 5.4 acres 'inams of other persons' leaving 128.6 acres as the area
covered by the grant." In Col. 10 it was stated that there was no
'Chekunama'. The Court held that the grant being of less than the whole
village, the tenant could not rely on s. 6 of the Act. In that case the
boundaries of the agraharam as described in Col. 10 in the Inam Register (1) A.I.R.
1943 Mad. 187.
856 were admittedly the boundaries of the
whole village, but in the view of the Court Col. 10 had to be read in
conjunction with the other columns. There was no evidence whether the other
inams were granted before the grant in favour of the Devasthana or after. This
case apparently marked a departure from the rule which was enunciated earlier
by the Madras High Court in G. Narayanaswami Nayudu's case(1).
The Legislature immediately reacted against
this view and enacted, by Madras Estates Land (Amendment) Act 2 of 1945, added
the following Explanation to cl. (d) of s. 3(2).
Explanation (1) read as follows "Where a
grant as an inam is expressed to be of a named village, the area which forms
the subject-matter of the grant shall be deemed to be an estate notwithstanding
that it did not include certain lands in the village of that name which have
already been granted on service or other tenure or been reserved for communal
purposes." This Explanation was made operative retrospectively from the
date on which Madras Act 18 of 1936 was brought into force.
The Explanation was apparently intended by
legislative process to restore the interpretation which the Madras High Court
had given to the expression "whole village" in G.
Narayanaswami's case(1). But the legislature
had used somewhat involved phraseology in enacting the conditions which gave
rise to the presumption. If a minor inam was proved to be granted prior to the
date of the grant, by virtue of Explanation (1) the grant expressed to be of a
named village had to be regarded as a grant of an estate.
If it was proved that the grantee after
receiving the whole village created minor inams, the grant was of the whole
village and therefore grant of an estate. But where evidence about the creation
of the major and minor inams was not forthcoming, the question had to be
decided on the presumption that the subject-matter of the grant shall be deemed
to be an estate, notwithstanding that it did not include lands granted on
service or other tenures or lands reserved for communal purposes. On the true
effect of the Explanation there was a sharp conflict of judicial opinion
resulting in three distinct views. In one set of cases it was ruled that the
burden of proving that a tenant is entitled to permanent rights of occupancy in
his holding by virtue of s. 6 of the Madras Estates Land Act always lies upon
the tenant, and it is for the (1) I. L.R. 39 Mad. 683.
857 tenant to establish affirmatively that
the minor inams in the village were granted before the date of the grant of the
named village, and if he failed to do so his claim is liable to fail : see Rama
Rao v. Linga Reddi(1) and Ramadhan Chettiar v. State of Madras(2) In another
set of cases it was held that where relief is claimed before the Court on the
plea that a grant of land was of an estate, or that it was not of an estate,
and the evidence is inconclusive, the person who has approached the Court for
relief must fail :
see the judgment of Krishna Rao J., in
Nelluru Sundararama Reddy v. State of Andhra Pradesh (3) ; Varada Bhavanarayana
Rao v. State of Andhra Pradesh ( 4 ) ; and Addanki Thiruvenkata Thata
Desikacharyulu Ayyavarlamgaru v. The State of Andhra Pradesh and Ors.(5) In the
third set of cases it was held that the Explanation raises a presumption where
a grant is expressed to be of a named village, that the area which formed the
subjectmatter of the grant shall be deemed to be an estate, and it is for the
party contending that the grant in question falls outside the definition of s.
3 (2) (d) of the Act to prove that case either by showing that the minor inams
not comprised in the grant were created contemporaneously with or subsequent to
the grant of the village by the original grantor : see Janakiramaraju v.
Appalaswami(6); Nelluru Sundarama Reddy v. State of Andhra Pradesh (7) State of
Andhra Pradesh v. Korukonda Bhattam Appalacharyulu(8) and Sri
Varadarajaswamivari Temple v. Sri Krishnappa Govinda and others(9).
In expressing the first view the non-obstante
clause in the Explanation was read as prescribing the conditions on proof of
which the statutory presumption arises. The Explanation was apparently read as
implying that the conditions for the raising of the presumption were that the
grant as an inam is expressed to be of a named village, and that the other
lands not included in the grant were granted before that date on service, or
other tenure or reserved for communal purposes.
If this be the true effect, the Explanation
had little practical utility. The intention of the legislature apparently was
to declare rights of occupancy of tenants in inam villages, and it would be
difficult to believe that the legislature intended to place upon the tenants
onus of proof which in normal cases would be well-nigh impossible to discharge.
A large majority of the inams are ancient and the (1) A.I.R. 1957 A.P. 63 (2)
A.I.R. 1958 Mad. 104.
(3) I.L.R.  A.P. 337 F.B.(4)  2
(5) A.I.R. 1964 S.C. 807. (6) I.L.R. (1954)
(7) I.L.R.  A,P. 339 F.D.(8) I.L.R.
 A.P. 687.
(9) I.L.R.  Mad. 1023 858 records
bearing on the commencement, extent and nature of the grant would invariably be
in the possession of the inamdars. To expect that tenants who are generally
illiterate, and who came to occupy the lands not infrequently many years after
the original grant, would be able to lead evidence on matters principally
within the knowledge of the inamdars, and information whereof the inamdars
would be interested in withholding, would be to attribute to the legislature
gross ignorance of local conditions In terms the presumption arises on proof
that the grant is an inam expressed to be of a named village, and it arises
even if it appears that there have been other minor inams granted for service
or other tenure or have been reserved for communal purposes. The non-obstante
clause in the Explanation, in our judgment, does not prescribe a condition for
the raising of the presumption. The presumption arises only when it is proved
that the grant is expressed to be of a named village, and the burden of proving
that the grant is so expressed must lie upon the party who claims to bring the
grant within the exception, but once it is proved that the grant is expressed
to be of a named village, raising of the presumption will not depend upon proof
that certain lands in the village were granted on service or other tenure, or
were reserved for communal purposes before the grant of the village.
In expressing in the cases of Rama Rao(1) and
Ramadhan Chettiar (2) the view that the burden lay upon the tenants to prove
that the grant was of an estate, it was assumed by the Madras High Court that
this Court had rendered a considered decision in the District Board of
Tanjore's case(3) that the onus of proving that a grant of land is a grant of
an estate lies upon the tenant. But it appears that no such decision was given
by the Court in that case.
In the District Board of Tanjore's case(3)
the defendant who had taken a lease for three years of a piece of land
belonging to the District Board claimed that he had acquired permanent
occupancy rights under s. 6 of the Madras Estates Land Act, because after the
expiry of the period of the lease the Board had not resumed possession. It was
the Board's case that after expiry of the period of the lease, the Board bad
taken possession of the land and had brought it under cultivation. The
Subordinate Judge held that the land did not constitute an estate within the
meaning of s.
3(2) (d). The High Court disagreed with that
view. In appeal to this Court Mahajan, J., on (1) A.I.R. 1957 A.P. 63. (2)
A.I.R. 1958 Mad. 104.
(3) A.I.R. 1953 S.C. 446.
859 a review of the evidence opined that the
grant was not of a named village, the grant being in terms of areas and not of
a named village, and that there were two grants neither of which could be
called a grant of a village. Chandrashekhara Aiyar, J., observed that there
were two personal grants under one parvangi to two different persons, and it
could not be said that there was a grant of a whole village or of a named
village. smaller areas having been carved out therefrom prior to the date of
the grant on service or other tenure, and the remaining part still being
recognised and treated as a revenue unit with a nomenclature of its own.
It is abundantly clear that the Court decided
the case on evidence and did not place reliance on the onus of proof.
It is true that Mahajan, J., in his judgment
has recorded that:
"It was conceded by . . . the learned
counsel for the respondent that the burden of proving that certain lands
constitute an "Estate" is upon the party who sets up the
contention", and Chandrasekhara Aiyar, J., observed that "A small
area of 5 acres and 40 cents was granted under the same grant in favour of
Chinna Appu Moopan. If this conclusion is correct-and nothing satisfactory has
been urged on the side of the respondents why such an inference is not open on
the entries found in the Inam Register, the 1st respondent should fail, as the
burden is on him to establish that what was originally granted was an
'estate'." But these observations are not susceptible of the meaning that
when it is proved that an inam is expressed to be of a named village, the
presumption under Explanation (1) does not arise. Both the learned Judges were
of the view that there was no grant which could be regarded as a grant of a
whole village or a named village, and on that view the true effect of the
Explanation did not fall to be determined.
The concession before the Court by counsel
was only that when a person alleged that certain land was an estate, the burden
of proving that case lay upon him.
The second view minimizes the operation of
the statutory presumption which is expressly enacted by the legislature to
arise on proof that the grant is of a named village. In terms the Explanation
provides that the grant of an area as a named village shall be deemed to be a
grant of an estate.
If the clause prescribes the condition on
which the presumption arises, the onus 860 would be discharged by the
presumption on proof that the grant was of a named village. Adoption of the
second view is likely to give rise to some anomalous situations of which the
present set of cases is a good illustration. For instance, if the inamdar as
well as the tenant sue for relief in respect of their respective cases, the
application of this rule would require the Court to adopt the somewhat unusual
course of dismissing the cross actions, when evidence does not justify a
positive inference in favour of either party.
In Varada Bhavanarayana Rao v. State of
Andhra Pradesh and others(1), this Court expressed its preference for the
second view. That was a case in which the appellant held a major part of
certain villages covered by five inam grants.
The Inam Commissioner had granted fresh inam
title deeds in confirmation of the original grants. The Special Officer
appointed by the Madras Government under s. 2 of the Madras Estates Land
(Reduction of Rent) Act, 1947 decided that the inam lands covered by the fresh
inams were "Estates" within s. 3 (2) (d) of the Madras Estates Land
Act, 1908, and recommended fair and equitable rates of rent for the ryoti lands
in this estate. Subsequently the Government of Madras by a notification in the
Gazette fixed rates of rent in accordance with this recommendation. The inamdar
instituted an action in the Civil ,Court for a declaration that the grant was
not of an estate within the meaning of s. 3 (2) (d) of the Madras Estates Land
Act. The Trial Court upheld the contention, but the High Court in appeal
reversed that decision. In appeal to the Supreme Court it was contended that
there were no materials on the record to prove that the original grant was of a
whole village or of a village by name, and as the State had failed to discharge
the burden of proving that the land constituted an estate, the action must be
decreed. This Court held that the grant which was later confirmed by the title
deed was of a named village, but on proof merely that the inam grant was of a
named village, a presumption did not arise that it formed an estate, for the
legislature had not created any special presumption either way. The question of
the onus of proof it was said had to be adjudged in the light of ss. 101, 102
and 103 of the Evidence Act, and applying that principle if the plaintiff
failed to prove his claim that land was not an estate, the appeal should stand
dismissed. The Court in that case regarded the judgment in the District Board
of Tanjore's case(2) as not decisive of the question, and proceeded to hold (1)
 2 S.C.R. 501.
(2) A.I.R. 1953 S.C. 446.
861 on two grounds that the legislature had
not provided for raising a presumption either way. First, that the
"language used in Explanation (1) indicated that the conclusion that the
area was an "estate" can be drawn even where the whole of the village
was not included in the grant, only if it appeared that the portion not
included had already been gifted and was therefore lost to the tenure,"
and the other that when adding the Explanation in 1945, the Legislature did not
think fit to make any change in s. 23 of the Act.
But as already observed, the language used by
the Legislature in enacting Explanation (1) to s. 3(2)(d) expressly directs a
presumption to be raised. That presumption arises when it is proved that a
grant as an inam is expressed to be of a named village, the area which forms
the subject-matter of the grant shall, be deemed to be an estate. Raising of
the presumption is not subject to any other conditions. The Legislature has by
the non-obstante clause affirmed that such presumption shall be raised even if
it appears that in the grant are not included certain lands in the village
which have before the grant of the named village been granted on service or
other tenure or have been reserved for communal purposes. The presumption, it
is true, is riot a conclusive presumption : it is a presumption of law, and is
rebuttable. It may be rebutted by proof of other facts, but not the facts
mentioned in the non-obstante clause.
Section 23 was added by s. 5 of the Madras
Estates Land (Third Amendment) Act 18 of 1936. It reads :
"Where in any suit or proceeding it
becomes necessary to determine whether an inam village or a separated part of
an inam village was or was not ,in estate within the meaning of this Act as it
stood before the commencement of the Madras Estates Land (Third Amendment) Act,
1936, it shall be presumed, until the contrary is shown, that such village or
part was an estate." The presumption under s. 23 in terms applies only to
cases in which the question whether an inam village was an estate before the
commencement of the Madras Estates Land (Third Amendment) Act, 1936. Under the
Act, before it was amended in 1936, a grant of a village could be deemed a
grant of an estate where only melvaram was granted to the inamdar and not where
both the melvaram and the kudivaram were granted.
By enact862 ing S. 23 the Legislature
intended to declare that in determining whether under a grant of an inam
varams were granted or only the melvaram was
granted, it shall be presumed, until the contrary was shown, that such village
or part thereof was an estate, that is, only the melvaram was granted. Under
the Act before its amendment, one of the conditions of the applicability of s.
3 (2) (d) was that the grant in favour of the inamdar was only of the melvaram,
and that it did not include the kudivaram, and the Legislature by s. 23 as
amended provided that in dispute arising between the landlord and tenant
whether an inam village was or was not an estate, it was to be presumed that it
was only of the melvaram. Enactment of this section was apparently found
desirable 'because of certain decisions of the Judicial Committee. In
Suryanarayana v. Patanna and Upadrashta Venkata Sastrulu v. Divi Seetharamudu
and others(2), the Judicial Committee expressed the view that where, there was
no evidence of the terms oil an ancient grant, there was no presumption that it
was of melvaram alone. The High Court in Mulhu Goudan v. Perumpal lyen(3) held
that the ground on which the decisions of the Judicial Committee Proceeded,
though it was not necessary for the purpose of those cases to so decide, a
presumption that the grant was of both the varams was deducible. The Judicial
Committee overruled this decision in Chidambara Sivaprakasa Pandara Sannadhigal
v. Veerma Reddi(4), and held that in each case the question was one of fact to
be determined on the evidence. The legislature then intervened and enacted the
presumption applicable only to cases arising under the un-amended Act.
Undoubtedly in cases arising under amended Act, the conditions on which the
presumption will arise are prescribed in the Explanation (1). The language use
by the Legislature in the amended s. 23 clearly shows that the section was not
intended to deal with cases arising under the Madras Estates Land Act as
amended by Act 18 of 1936.
Any reference in S. 23 to a presumption in
respect of cases arising after cl. (d) as recast by Act 18 of 1936 would have
been wholly out of place. There were two presumptions which applied to
different situations. In cases which arose before the Amending Act of 1936 the
presumption under s. 23 applied : in cases which arose since the amendment of
1936 the presumption prescribed by the Explanation (1) applied.
This is so, because the Explanation though
enacted by Act 2 of 1945 has been brought into force since the date on which
the amending Act of 1936 became operative.
(1) L.R. 45. I.A. 209.
(3) I.L.R. 44 Mad. 538.
(2) L.P. 46 I.A. 123.
(4) L.R. 49 I.A. 286.
863 In our view the following passage from
the decision of the Madras High Court in Mantravadi Bhavanarayana and another
Merugu Venkatadu and others(") correctly
interprets s. 3 (2) (d) "It is now settled law that by reason of the
amendment made in 1945, which added an explanation to section 3 (2) (d) of the
Madras Estates Land Act and numbered it as explanation 1, a grant constitutes
an estate if it is expressed to be a named village irrespective of the fact
that some of the lands in the village had already been granted on inam or
service grants, or were reserved for communal purposes." We do not deem it
necessary to decide whether the suit for a mere declaration that the tenants
were not occupancy tenants at the instance of the shrotriemdars, after
determining the tenancy of some of the tenants was maintainable. The High Court
has dismissed the suit against defendants 1 to 10 who were served with notices
to quit, but against whom the shrotriemdars did not claim a decree for
possession. There is no appeal by the shrotriemdars before us against
defendants 1 to 10, and in any event on the view taken by us, the suit of the
shrotriemdars must fail in its entirety.
In Appeal No. 342 of 1961 the decision
recorded by us on the principal question does not put an end to the litigation.
The dispute arose between two rival claimants
to the rights of occupancy of land. The respondent in this appeal claims that
he is a transferee of the original tenant, and the appellant claims to have
acquired the rights of occupancy from the shrotriemdar. In suit No. 93 of 1947,
four substantive issues were raised, and the issues are discussed in paragraphs
106 to 120 of the judgment of the Trial Judge.
The High Court did not separately deal with
those issues, but decided Appeal No. 789 of 1950 on the view of the law which
it declared in the principal appeal. We have disagreed with the High Court for
reasons already set out and the other issues which have not been tried by the
High Court have now to be tried.
On the view taken by us Civil Appeal No. 341
of 1961 will be allowed, and the decree passed by the High Court set aside and
the decree passed by the Trial Court restored with costs throughout. In Civil
Appeal No. 343 of 1961 also the decree passed by the High Court will be set
aside and the suit decreed (1) I.L.R.  Mad. 116.
864 with costs throughout. There will be one
hearing fee in this Court.
In Civil Appeal No. 342 of 1961 arising out
of Appeal No. 789 of 1950 from suit No. 93 of 1947, tile appeal will be
remanded to the High Court with a direction that the questions which remain to
be determined will be decided according to law. No order as to costs in Appeal
No. 342 of 1961.
C.A. Nos. 341 and 343 allowed.
C.A. No. 342 remanded.