Sunkavilli Suranna & Ors Vs. Goli
Sathiraju & Ors  INSC 272 (18 September 1961)
GUPTA, K.C. DAS DAYAL, RAGHUBAR
CITATION: 1962 AIR 342 1962 SCR (3) 653
Occupancy Rights-Ryot in possession before
permanent Settlement-Terms as to commencement of tenancy lost in antiquity-Presumption
as to melvaram and kudivaram-Rights of ryots in Zmindaries-Madras Estates Land,
Act, 1908 (Mad. 1 of 1908), s. 6.
The lands in question which were within the
permanently settled Zamindari in the then presidency of Madras, belonged to T
who, during his lifetime, was cultivating the lands.
He died in 1885 leaving behind, inter alia,
After the death of the three daughters, the
last having died in 1935, the sons of one of them instituted a suit against the
descendants of the other two for partition and separate possession of a third
share, inter alia in the lands in question on the footing that T owned
occupancy rights in the lands.. The suit was resisted on the plea that T had,
no proprietary right in the lands, that he was only an annual tenant of the
Zamindar, that after his death the lands were held on similar tenure by
different members by his family and that occupancy rights were acquired by
those members of his family who were in possession of the lands when the Madras
Estates Land Act, 1908, came into force in 1908.
There was no evidence to show that the
occupation of the lands by T commenced under the Zamindar, nor was there any
evidence as to the terms on which he or his predecessors were inducted on the
lands, the commencement of the tenancy and the terms thereof being lost in
antiquity, but he and his descendants were proved to have continued in
possession of the lands uninterruptedly till the enactment of the Madras
Estates Land Act, 1908.
Held, that in cases in which a ryot's holding
is not shown to have commenced subsequent to the permanent settlement, the
presumption is that Zamindar was only the holder 654 of the melvaram being the
assignee of the Government revenue, and that the kudivaram in the land belonged
to the ryot who Was entitled to continue in possession as long as he paid the
rent regularly; and that this principle was applicable equally in a Suit
between persons claiming under the ryot as in a suit against the ryot by the
Case law relating to the rights of ryots in
Zamindaries in the Madras Presidency reviewed.
Held, further, that T was the holder of the
occupancy rights in the lands, , that these rights devolved upon his successors
and that the said occupancy rights were not acquired by virtue of the
provisions of the Madras Estates Land Act, 1908.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 424 of 1958.
Appeal from the judgment and decree dated
April 25, 1950, of the Madras High Court in A. S. No. 67 of 1947.
K. Bhimasankaram and..K.R. Chaudhuri. for the
T. V. R. Tatachari, for respondents Nos. 1 to
P. Ram Reddy, for respondent No. 9.
M. R. Krishna Pillai for respondent No. 24.
1961. September 18. The Judgment of the Court
was delivered by SHAH J.-One Thammiah had two sons Gangaraju and Ramayya-and
four daughters Ammanna, Sesbamma, Gangamma and Bbavamma, of these, the two sons
and the daughter Ammanna .died during Thammiab's life time. Gangaraju left him
surviving his widow Cbetamma and Ramayya his widow Venkamma.. Ammanna was
survived by her son Rudrayya, who was brought up by Thammiah. Thammiah died in
1885, Seshamma in 1904,-Gangamma in 1930 and Bhavamma in 1935. After the death of
Bhavamma, Paddaraju (herein after called the plaintiff), son' of Gangamma filed
Suit No. 53 of 1944 in the court of the Subordinate 655 Judge at Rajamundhry
against the descendants of Seshamma and Ammanna for a decree for partition and
separate possession of a third share in 17 lands, described in Schedule B to
the plaint as "agricultural land and measuring in the aggregate 51 acres
72 cents in Patta No. 12 in village Pandalpaka in Pitbapur Zamindari" and
in Schedule IC' described as three houses with sites thereof in village
Pandalpaka,. To this suit Jaggarayudu and Paddaraju, sons of
Venkataraju-brother of the plaintiff-were impleaded as defendants 31 and 32.
The plaintiff claimed that Thammiah owned
occupancy rights in the ryoti lands in the Pithapuram Zamindari and that after
Thammiab's death the lands were managed with the permission of the plaintiff
and his brother Venkataraju, in the first instance, by the two daughters-in-law
of ThammiahChetamma and Rammanna, son of Seshamma and their "possession
and management was on behalf of heirs and persons entitled to maintenance out
of the estate" and that the right to sue for' partition accrued on the
death of Bhavamma on March 18, 1935.
The suit was resisted by the descendants of
Seshamma and Annamma principally on the plea that in the lands described in
Schedule "B'Thammiah had not proprietary right and that occupancy right
therein accrued to Rudrayya and Veeriah (husband of Seshamma) by virtue of the
Madras Estates Lands Act, 1908. It was also pleaded that Thammiah had made an
oral will devising his estate in favour of Veeriah-who was his illatom
son-in-law-and Rudrayya in equal shares. This plea about the oral will was
negatived by the Court of First Instance and, the High Court and need no longer
be considered, because it is not canvassed be-fore us in this appeal. The trial
Court held that Thammiah had no proprietary interest in the lands in Schedule
'B' and on that view decreed the plaintiff's claim for partition of the houses
and sites described in Schedule IC' only and awarded a third share to him, 656
another third share to Ramanna and the remaining third share collectively to
defendants 31 and 32sons of Venkataraju. in appeal, the High Court of Madras
modified the decree of the trial court holding that in the agricultural lands
Thammiah had occupancy rights which on his death devolved on his surviving
daughters, and directed that those lands be also partitioned, and that a third
share be awarded to the plaintiff and a third share to defendants 31 and 32
together with mesne profits from March 18,1935.
the date of Bhavammas death. With certificate
133, this appeal is preferred by the
descendants of Seshamma and Ammanna.
The principal question which falls to be
determined in this appeal is whether Thammiah had, as claimed by the plaintiff,
occupancy rights in the lands described in Schedule 'B', or as the contesting
defendants contend, Thammiah was an annual tenant of the zamindar and that
after his death the lands were held on similar tenure by different members of
the family of Thammiah and that the occupancy right was acquired by Rudrayya
and Veeriah by virtue of the Madras Estates Lands Act, 1908. The lands are
within a permanently settled zamindari under Madras Regulation XXV of 1802, and
it is common ground that Thammiah was cultivating the entire area of the lands
during his life time. There is no evidence indicating that his possession was
ever disturbed during his life-time. There is again no evidence about the
commencement of the occupation of Thammiah or his predecessors : commencement
of their occupation is therefore lost in antiquity. The lands are described in
the various documents, to which we will presently refer, as "jeeroyati
landie' Thammiah as "jeeroyati ryot", and after his death his
daughters-in-law and grandson Ramanna were similarly described.
Three documents-Exts. D-1, D-2 and D-3which
establish that Thammiah was cultivating the lands throw important light on the
problem under 657 discussion. Exhibit D-1 is a muchilika dated July St 1, 1883,
executed by Thammiah in favour of the zamindar.
Exhibits D-2 and D-3 are similar muchilikas
dated respectively August 10, 1884, and July 15 1885. Each of these muchilikas
is in respect of the seventeen pieces of lands described in Schedule "B'
and the 'cist' settled is Rs. 419/8/-. The terms of the three muchilikas are
identical. Thammiah is described in the muchilikas as "jeeroyati
ryot" and the lands are described as "jeeroyati pampus". It is
recited in the muchilikas "I have executed and delivered this muchilika
agreeing that I should pay the said cist amount of Rs. 419/8/every fasli
according to the instalments mentioned hereunder to the Officials on your
behalf and to obtain receipts;.................. that during the last year of
the term, I should not raise gingelly or chiruyeru crop on these pampus but
that I should leave sufficient land for purposes of garden cultivation and seed
beds; that I should not cut down any, kind of trees without your permission;
that I should not raise permanent gardens or construct houses on these lands
without your permission;
that I should not cause damage to these lands
so as to make them unfit for cultivation purposes; that if at the of the term
you should lease out these pampus to anyone, whom you like, for a cist amount
advantageous to you, I should not raise objection thereto; that if you had
leased out these lands to other ryots for the ensuing year after the expiry of
the term, and if 'the said ryots should carry on necessary works for purposes
of cultivation during the ensuing year by way of ploughing seed-beds, sowing
seeds and planting tender sugarcane even before the expiry of this term, I
should leave sufficient land to them without raising any objection
whatsoever." By the covenants of the muchilikas Thammiah had undoubtedly
undertaken not to raise certain crops, nor to cut trees, nor to put up
permanent constructions and had also undertaken to give certain facilities to
other tenants 658 inducted in the lands by the zamindar. The evidence does not
justify the inference that Thammiah was inducted on the land by Ext. D-1. There
is even no evidence that the land was acquired from the, zaminder by the
members of Thammiab's family or that the ancestors of Thammiah were not on the
land before the zamindari rights accrued to the zamindar.
It is also not didputed that land 1, in
zamindaries in the Madras Presidency were even held in occupancy right by many
ryots before the Madras EstateB Lands Act, 1908, was enacted. As observed in
Venkata Narasimha Naidu v.
Dandamudi Kotayyo(1) at 301 that "there
is absolutely no ground for laying down that the rights of ryots in zamindaries
invariably or even generally had their origin in express or implied grants made
by the zamindar. The view that in the large majority of instances, it
originated otherwise is the one most in accord with the history of agricultural
land-holding in this country. For, in the first place, sovereigns, ancient or
modern, did not here set up more than a right to a share of the produce raised
by raiyats in lands cultivated by them, however much that share varied at
different. times. And, in the language of the Board of Revenue which long after
the Permanent Settlement Regulations were passed, investigated and reported
upon the nature of the rights of ryots in the various parts of the Presidency,
"whether rendered in service, in money or in kind and whether paid to
rajas, jagirdars, zamindars, poligars, mutadars, shrotiemdars, inamdars or to
Government officers, such as tehaildars, amildars, amins or thannadars, the
payments which have always been made are universally deemed the due of
Government........ Therefore to treat such a payment by cultivators to
zamindars as 'rent' in the strict sense of the term and to imply therefrom the
relation of landlord and tenant so as to let in the presumption of law that a
tenancy in general is one from year to year, would be to introduce (1) (1897)
I.L.R. 20 Mad.a 299.
659 a mischievous fiction destructive of the
rights of great numbers of the cultivating classes in this province who have
held possession of their lands for generations and generations." It was
also observed in that case (at p. 303), ",It thus seem unquestionable that
prima facie a zamindar and a raiyat are holders of the melvaram and kudivaram
rights, respectively. When, therefore, the former sues to eject the latter, it
is difficult to see why the defendant in such a case should be treated
otherwise than defendants in possession are generally treated, by being called
upon, in the first instance, to prove that they have a right to continue in
possessions The right to occupy land under the revenue system prevailing in
Madras may arise by reason of the customs in the district in which they are
situate. In any event, there is no presumption that the holder of the land
under a Zamindar is a tenant at will. In each case the rights of the ryot have
to be ascertained in the light of the facts proved.
In Appa Rau v. Subbanna (1), Muttusami Ayyar
and Wilkinson, JJ., were called upon to consider whether a zamindari ryot could
mortgage his interest in his holding. It was observed in that case that
"'According to the course of decisions, therefore, in this presidency the
landlord may determine the tenancy if there is a contract, express or implied,
by exercising his will in accordance with his obligations; that there is no
presumption in favour of a tenancy at will; that an occupancy right may exist
by customs; that a pattadar or raiyat in a mitta is entitled to continue in
possession so long as he regularly pays rent 'and has a saleable interest, and
that by reason of special circumstances in evidence the onus of proof may be
shifted, even in regard to a permanent occupancy right, from the tenant to the
landlord." The court also observed that it would be ,monstrous to hold
that every tenant in a zamindari is presumably a tenant at will".
(1) (1889) 1. L. R. 13 Mad. 60.
660 In Vencata Mahalakshmamma v. Ramajogi
(1), a zamindar served a notice upon the defendant, who was a cultivating ryot
in the zamindari calling upon him to deliver possession of his holding, and on
default of compliance sued to evict him from his holding. The defendant pleaded
that he and his ancestors had been "jiroyati ryots" of the holding
from times immemorial. According to the High Court, the zamindar having failed
to prove that the ryot's tenancy had commenced under the zamindar or his
ancestors, the suit should be dismissed. The court observed that "in
cases. in which the raiyats' holding is not shown to have commenced subsequent
to the permanent settlement, and when upon the evidence, it is possibly as
ancient as the zamindari itself, the principle laid down with reference to
tenancies which admittedly commenced under the zamindar" had no
application, and that "in such cases it is not unreasonable to hold that
the onus of showing that the tenancy commenced under the plaintiff or his
ancestors rests on the zamindar, and that until he shows it, the zamindar may
be fairly presumed to have been the assignee of Government revenue, and the
tenant liable to pay a fair rent and entitled to continue in possession as long
as be regularly pays rent.
In Yenkata Narasimha Naidu v. Dandamudi
Kotayya(2), which we have already referred, it was held that a ryot in a
permanently settled estate is prima facie not a mere tenant from year to year
but the owner 1 of the kudivaram right in the land he cultivates, and in a suit
in ejectment, the zamindar "is to prove that the kudivaram right in the
disputed land subsequently passed to the defendant or some person through whom
he claims under circumstances which give the plaintiff the right to
eject." The Court observed that there is no substantial analogy between
an, English tenant and an Indian ryot for the right of ryots came into existence'
(2) (1897) I.L.R. 20 Mad. 299.
661 mostly, not under any letting by the
Government of the day or its assignees, the zamindars, but independently of
them, according to the Indian: traditions such right were generally acquired
by, cultivators entering upon land, improving it and. making it productive.
After referring to the judgment of Turner, C. J., and Muttusami Ayyar, J., in
Siva Subramanya v. The Secretary of State for India(1), that the Hindu
jurisprudence rested private property, on occupation as owner, and to Secretary
of State v. Vira Rayan(2) that the right to the possession of lands acquired by
the first person who makes a beneficial use of the soil, it was observed that
the well-known division in the, Madras Presidency of the great interests in
land under two main beads of the melvaram interest and the kudivaram interest
made the holder of the kudivaram right, far from being a tenant of the holder
of the melvaram right, a co-owner with him.
In Cheekati Zamindar v. Banasooru Dhora and
others(3), Shephard, J., observed at p. 322, "Many of the occupants of
zamindari lands are not tenants in the proper sense of the word, and the fair
presumption is that, when new occupants are admitted to the enjoyment of waste
or abandoned lands, the intention is that they should enjoy on the same terms
as those under which the prior occupants of zamindari lands held. It is open to
the zamindar to rebut the presumption.
He may show as was shown in Achayya v.
Hanumantrayudu (4) that the usual condition of things does not prevail in his
estate or he may adduce evidence as to the particular contract made between him
and his tenant. In other words, he may show that the terms of the contract were
different from those which ordinarily prevail between a zamindar and the
occupant of zamindari lands." Subrahmania Ayyar, J.
observed, "Practically the whole of the
agricultural land there (1) (1885) I.L.R. 9 mad. 285.
(2) (1885) I.L.R. 9 Mad. 175.
(3) (1899) 1. L. R. 23 Mad. 318.
(4) (1891) 1. L. R. 14 Mad. 269.
662 is not cultivated by persons who merely
hire it for a limited time. The raiyats most generally hold by no derivative
tenure. And even where the right to cultivate passes to them from zamindars the
payment made by them, in the absence of a contract, is regulated by custom in
the last resort, as provided in s. 11 of the Rent Recovery Act.
The raiyats are generally entitled to hold
the lands for a unlimited time, that if; as long as they wish to retain it
subject to the performance of the obligations incident to the tenure. Nor can
it be said that this is true only in regard to so much of the land in the hands
of the raiyats as cannot be shown to have been obtained by them from zamindars.
For in the case of lands which have been relinquished by the former occupants
or which have been lying waste from time immemorial, they too, when taken up by
a raiyat, are treated exactly on the same footing as land into the possession
of which it is not shown that the raiyat was let in by a zamindar, and the
raiyat holds possession of them for an indefinite period".
In Kumbham Lakshmanna and others. v.
Tanjirala Venkateswarlu and Others (1), the Judicial Committee of the Privy
Council held that in a suit to eject the tenant of an inamdar from his holding
the burden is on the plaintiff to make out a right to evict by proving that the
grant included both the melvaram and the kudivaram interests, or that the
tenants or their predecessors were let into possession by the inamdar under a
terminable lease. The dispute in that case was between inamdars and a tenant
and had to be decided by the Civil Court, for having regard to the definition
in a. 3(2) (d) of the Madras; Estates Land Act, 1908, the Act did not apply to
inamdars. By s. 6 of the Act it having been provided that ",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," (1) (1949) L. It. 76 T. A.'202.
663 all tenants in possession of land at the
date on which the Act came into operation, were declared to be holders of
permanent occupancy rights, but the Act did not justify the inference that the
holders prior to that date did not and could not hold occupancy rights. The
Privy Council was of the view that in any action by an inamdar to evict his
tenants and by a zamindar prior to 1908 to evict his raiyats from their
holdings, the burden was on the plaintiff to make out the right to evict by
proving that the grant included both the melvaram and the kudivaram interests
or that the holders of land or their predecessors were let into possession by
the inamdar or the zamindar under a terminable lease. The Privy Council
judgment, therefore, recorded its approval to the view expressed in the earlier
cases to which we have referred.
But counsel for the respondents contended
that this was not a suit between a zamindar and a ryot and the rule as to the
onus of proof in a suit as between a zamindar and a ryot did not apply where
the suit was filed by a person like the plaintiff claiming a share in the
occupancy right in land in possession of the defendants, and unless the
plaintiff establishes affirmatively that the common ancestor was before 1908 in
possession as an occupancy tenant, his suit must fail. We do not think that
this is a permissible approach. The presumption which arises in a suit by a
zamindar against a ryot for possession of the letter's holding, rests not on
the narrow ground of burden that whoever alleges title and claims relief on that
footing must establish it ; the presumption has its roots in the system of land
tenure and in custom of the area in which the lands are situate, and applies in
a suit between persons claiming under the ryot, as well as in a suit against
the ryot by the zamindar.
Counsel for the respondent relied upon
certain circumstances which appeared from the evidence 664 as lending support
to the plea of the contesting defendants that the lands were not held by
Thammiah in occupancy right.
Reliance was placed upon the covenant in
Exts. D-1, D-2 and D-3 that the zamindar may on the expiry of the year of the
muchilika, let out the lands to any tenant at "cist" advantageous to
the, zamindar. It is true that in Exts. D1, D-2 and D-3 it is recited that if
at the end of the terms of the muchilika the zamindar should lease out the land
to any one for a "cist" advantageous to hina, Thammiah would not
object thereto, and he further agreed that he would leave sufficient land,
without raising any objection, for the ryot to carry out the necessary work for
cultivation during the ensuring year. But such a covenant is by itself not
sufficient to justify the inference that the ryot's tenure was precarious. It
appears that since the decision of the Madras High Court in Chockaling Pilli v.
Vythealinga Pundara Sunnady (1) that neither the rent Recovery Act, nor the
regulations operated to extend a tenancy beyond the period secured by the
express or implied terms of the contract creating it, the zamindars were
accustomed to take muchilika or other writings from their ryots admitting
notwithstanding the true nature of their rights, that their tenure was
restricted or precarious. In Vencata Mahalakshmamma v. Ramajogi (2), in dealing
with a muchilika executed by a ryot for a period of one year only, Muttusami
Ayyar J., observed, "Neither a patta nor a muchalka granted or executed
under Act VIII of 1865 during the continuance of the holding is conclusive
evidence that the holding is a tenancy from year to year. A patta or muchalka
is ordinarily nothing more than a record of what the tenant has to pay for a
particular year with reference to the preexisting relation of landlord and
tenant. The fact cannot also be lost sight of that the zamindar is always a man
of education, status and influence and often exercises (1) (1871) 6 M. H. C. R.
(2) (1892) 1. L. R. 16 Mad. 271.
665 revenue power and control over the
village records. On the other hand, the raiyats are illiterate persons and it
would be easy enough to get them sign anything as long as there is no attempt
to interfere with their actual occupation and enjoyment of the land.". It
would be unreasonable, therefore, to attach any undue important to the recitals
of the, nature contained in Exts. D-1, D-2 and D-3. The Privy Council in Kumbham
Lakshmamma's case referred to the practice among zamindars of taking muchilikas
from ryots negativing the existence of the occupancy rights as being prevalent
and to the judicial recognition of such a practice in Peravali Kotayya V.
Pnnopalli Ramakrishnayya (2) and Zamindar of Chella-palli v. Rajalapati Somayya
(3). The Judicial Committee referred with approval to the observations of
Wallis, C.J., in the latter case to the effect : "In this connection it is
to be borne in mind that numerous instances have come before the courts in
which subsequent to the decision of in inserting in pattas and muchilikas terms
negativing the existence of occupancy right". and pointed out that they
could not neglect the consideration that a ryot so long as he is not evicted,
might be prepared to sign anything and that the evidential value of such a
contract should be judged accordingly. It is true that if there were some
reliable or substantial evidence to show that the tenancy had commenced after
the zamindari rights accrued or that 'otherwise the tenant's right was
restricted, the value to be attached to the recitals of 'the nature set out may
be greater ; but there are no circumstances in this case lending strength to
the recitals contained in Exts. D-1, D-2 and D.3.
After the death of Thammiah, muchilikas were
obtained' and patt as granted by the zamindar not in favour of the daughters'
of Thammiab, who were under the Hindu Law his heirs, but in favour (1) (1949)
L. R. 76 I. A. 202. (2)  2 Mad. L. J. 573.
(1914) 27 Mad. L. J. 718. (4) (1871) 6 M. H.
C. R. 164.
666 of his daughters-in-law, in the first
instance, and thereafter, in favour of one of the daughters-in-law and Ramanna,
grandson of Thammiah. These documents are Exts.
D-4, D-5, D-5 (a), D-6 and D-8. Ext 1-@-4 is
a muchilika executed on August 15, 1891 by Venkamma and Chetamma,
daughters-inlaw of Thammiah. Ext. D-5 is another' muchilika executed on
August,, 15, 1893 by Venkamma and Chetamma. Each of these muchilikas is for
period of one year. Ext. D-5 (a) is a patta executed on October 10, 1893 by the
zamindar corresponding to muchilika Ext. D-5. Ex. D-6 is a patta executed on
May 21, 1904, by the zamindar in favour of Chetemma and Ramanna-minor by his
guardian Veeriah-and there% is Ext. D-8 which is a patta dated January 16, 1906
also in favour of Chetamma and Ramanna.
All these muchilikas and pattas related to
the same seventeen pieces of land which were originally in the possession of
Thammiah, and the covenants thereof are identical. It is true that in respect
of the first two inuchilikas the ryots were Chetamma. and Venkamma, and in
Exta. D-6 and D-8; the ryots were Chetamma and Ramanna.
Counsel for the defendants asks us to infer
from Exts. D-4 to D-8 that the zamindar had at the end of the year for which
the muchilikas or pattas were executed exercised his right of eviction and had
taken possession of the lands and had given them to other persons of his own
choice. But it is difficult to draw that inference in the absence of any
reliable evidence that the zamindar had evicted ryots who had executed the
muchilikas and had then inducted fresh ryots on the land. The reason why
Venkamma was omitted after 1893 from the muchilikas and pattas of the land and
in her place Ramanna was substituted will be presently mentioned. After the
death of Thammiah, his rights in the land would undoubtedly devolve by the law
of inheritance upon his surviving daughters with limited interest. But the fact
that muchilikas were taken from persons who were strictly not heirs according
to Hindu law, but were still 667 representatives of the family, will not
justify an inference that the right of the original ryots were extinguished and
fresh rights in favour of persons who executed muchilikas were created. The two
daughters-in-law Chetamma and Venkamma--after the death of Thammiah, continued
to live in the. family house together with Sesharama. Veerayya and Rudriah, and
it is not unlikely that the zamindar regarded the two daughters-in-Law as
representatives of the family and took muchilikas from them. there is no
warrant for the inference that they were inducted on the land in independent
right by the zamindar arid not as representatives of the descendants of
Thammiah. The learned Judges of the HighCourt observed that "in 1895 (when
Ext. D-4 was executed) in country parts like Pandalpaka, it is too much to
assume such a second knowledge of Hindu law. Besides, Venkamma and Chetamma
were, admittedly, living a,long with Veerliah and Rudrayya and Ramanna and
Bhavamma during Thammiah's lifetime, and continued to live in that some 'house
after his death ... So, we have no doubt that the Maharaja of Pittapur, the
zamindar, never intended.in the least to take away the B Schedule lands from
Tammayya's heirs and given them to Venkamma and Chittemma who were not heirs
and we hold that he renewed the patta in favour of these two windows, as they
were considered by him to be representing Tammayya's estate, being his widowed
our view, this in the circumstances of the
case, is a correct inference.
It appears that after 1895 there arose
disputes between Veeriah and Venkamma and it was arranged to provide
maintenance to Venkamma out of the estate of Thammiab. , Ext. P-1 dated May 16,
1.899 records the terms on which maintenance was granted. This document has a
very importal Lt bearing on the question which falls to be decided in this
appeal. 1-b is received i@.a E2:t. P-1 that all the properties of Thammiah had,
devolved,, after 668 his death, upon his "dowbitras" (daughter's
sons), Rudriah and Ramanna and that the two "dowhitras" were bound to
maintain the widowed daughters-in-law Chetamma and Venkamma and that
accordingly they. were being' maintained, but a Venkamma was unwilling to live
in the family house, it. Was decided to give her for maintenance expenses Rs.25
and 240 kunchams of white paddy per year besides a house, for residence. This
deed recites that out of the estate of Thammiah the two widows-Chetamma and
Venkamma were in fact being maintained that the estate was inherite I by
Rudriah and Ramanna, and recognises the right of the widows to receive
maintenance out of the estate. There is no evidence on the record that besides
the lands mentioned in Schedule 'B' there was any other agricultural land of
which Thammiah was possessed and which had devolved upon Rudriah and Ramanna.
It is admittedly out of the property of Thammiah which had devolved upon
Rudriah and Ramanna that maintenance was agreed to be given, and if Thammiah
was not possessed of any property other than the lands in Schedule "B',
Ext. P-1 must lend strong support to the inference that the lands in Schedule
'B' were regarded at the date of the maintenance deed as belonging to the
estate of Thammiah out of which Venkamma was entitled to maintenance. The assumption
that the property had, devolved upon Rudriah and Ramanna is evidently not true.
So. long as the daughters or any of them were alive, they were, according to
the Hindu law applicable to the Madras Presidency, owners, though for their
lifetime only, of the estate left,..by Thammiah. Ext. P-1 does therefore land
support to the case of the plaintiff that the property was regarded as
belonging to the family in which all persons who were living in the house of
Thammiah, including the two daughters-in-law., had;, interest. After.
maintenance was provided to Venkamma by Ext.
P-1 her name -was omitted from the muchilikas and the pattas subsequently
Pattas D-6 and 669 D-8 are as we 'have already stated, 'in favour of Chetamma
It is true that rent was enhanced by the
zamindar from time to. time under the muchilikas. During the life-time of
Thammiah the annual rent was Rs. 419-8-0 and it .remained unchanged, but after
his death the rent, even though the area 0f the land continued to be' the same,
was enhanced to Rs. 481-8-0 under Ext. D-4. There is some error in totaling tip
the amount of rent,, but the enhancement of rent by Rs. 52 is substantially the
result of alteration of rent of Sr. No. 315. Originally the rent of Sr. No. 315
was Rs. 29-3-9: it was enhanced to Rs. 81-3-9. under Ext.
D-5 the rent is Rs 537 (it should have, been
Rs. 473), but that again, is the result of some error in totaling, the only
enhancement being in respect of No. 358 which was increased from Rs. 5 to Rs.
6-8-0. 'In Ext, D-6 of the year 1904 the rent of this land was enhanced to Rs.
60-8-0 and rent in respect of, Sr. No. '315 was enhanced to Rs. 91-3
9. The High Court has held that this
enhancement of rent of the two lands Nos. 315 and 358 was presumably because
the lands were irrigated, and, having regard to the circumstances, we think the
inference of the High Court is correct. Enhancement of rent of the lands from
time to time does not lend support to the inference that fresh pattas and
muchilikas were not in recognition of the previous rights.
It is, pertinent to note that in the records
of the zamindar all the muchilikas in respect of the lands bore No. 12, during
the life time of Thammiah and after his death they bore No. 23. The
circumstance that the same area of land remained in the occupation continuously
of the family of Thammiah under Exts. D-1 to D-8 for a period exceeding 25
years also lends support to the plea of the plaintiff. It is true that by his
notice Ext. D-7 the zamindar called upon Ramanna and Chetamma to vacate. the
kumatam (which term is translated by the learned counsel for the respondent as
home farm) lands of the extent of 51 acres 72 cents. But by the year 670 1905
it was well known that legislation of the nature,which was ultimately enacted
as the Madras Estate Land Act, 1908, was on the legislative anvil and no
reliance can be placed upon the statements made in the notice which does 'not
appear to have been followed by proceedings, for enforcement of the claim to
possession. It is common wound that on January 16, 1906, the zamindar issued in
favour of Chetamma and Ramanna a patta in respect of the same lands.for an
annual rental of Rs. 578-4-0, rent having been enhanced in respect of Sr. No.
46 and 358 only.
The High Court placed strong reliance upon
the circumstances that in all the muchilikas and pattas the lands were
described as "jeroyati lands" and the tenants were described as
"joroyati ryots". The High Court observed that "jeroyati
ryot" was a well-known term indicating prima: facie possession of
occupancy rights. However, the state of the authorities in the Madras High
Court to which cur attention his been invited does not justify as in expressing
any definite opinion on that plea. In Zamindars of Bodokimidy v. Badankayala
Bhimayya(1), Curgenven, J.. held that the phrase "on jirayati tenure' is
only used where occupancy rights exist. But beyond the bare statement in the
judgment that "the phrases" on jirayati tenure being so far as my
experience goes, only used where occupancy rights exist", there is no
further elaboration in the judgment. In (Ivaturi) Lingayya Ayyavaru v. Kandula
Guningiah (2), Wallace, J., without referring to the earlier judgment of
Curgenven, J., observed that the term "jeroyatidar" did not imply
that; the executant was an occupancy ryot. Here also no reasons appear to have
been given in support of the view.
In Dadamudy Tatayya v. Kelachina
Venkatasubbarayya Sastri (3), Devadoss, J., in the course of hearing in appeal
called for a finding from the (1) A.I.R 927 Mad. 76.
(2) A.I.R. 1928 Mad. 58.
(3) A.I.R. 1928 Mad. 786.
671 trial Court as to the meaning of the word
jeroyati" as used in the Vuyyur Zamindari and as to the meaning of the
expression "savaram jeroyiti" used in documents in that estate. The
Subordinate Judge recorded evidence on the question referred to him, and
observed after referring to Brown's Dictionary and Wilson's Glossary, that the
word "'jeroyiti land" may mean "cultivable or arable land",
but it was only the context that must decide which meaning was to be given to
the word. He also observed that the word "'jeroyiti" especially when
prefixed to the word "'right" or hakku had come to mean "rights
of occupancy". This report of the Subordinate Judge, it appears, was
accepted by the High Court. These are the only decisions of the Madras High
Court to which our attention was invited. The task of this Court, in
ascertaining the special meaning which an expression used in the revenue
administration and by the residents of a certain area has acquired, is indeed
difficult. If the expression "jeerayot" is a local variation of
"Zeerait" used in the revenue administration, especially in Northern
India, it may mean " assessed" land, or "agricultural"
land. On the material.% placed, we are unable to express any definite opinion
on this part of the ease of the plaintiff.
To summarise, there is no evidence to show
that occupation of the lands by Thammiah commenced under the zamindar ; and
there is no evidence as to the terms on which Thammiah or his predecessors were
inducted on the lands: the commencement of the tenancy and the terms there of
are lost in antiquity, but Thammiah and his descendants are proved to have
continued in possession of land uninterruptedly till the enactment of the
Madras Estates Land Act, 1908. In the light of the presumption that the
zamindar is, unless the contrary is proved, the owner of the melvaram and the
ryot the owner of the kudivaram the inference is irresistible that Thammiah was
the holder of the 672 occupany rights in the lands and that these rights
devolved 'upon,. his successors and that the, occupancy rights in the lands
were not acquired by virtue of the provisions of Madras Act 1 of 1908.
Before parting with the case a minor question
relating to mesne profits awarded to the plaintiff ,and defendants 31 and 32
must be mentioned. By his plaint the plaintiff claimed mesne profits in respect
of his share for three years prior to the date of the suit. He valued the claim
for mesne profits at Rs. 3,800-past profits on plaintiffs 1/3rd share for two
years 1940 and 1941 at Rs. 2,280 and past mesne profits on plaintiff's 1/3rd
shares for the year 1942 at Rs.1,520. The trial court dismissed the plaintiff's
suit as to his share in property described in Schedule 'B'.
The High Court in awarding a third share to
the plaintiff and another third share to defendants 31 and 32 collectively also
awarded past mesne profits from the 18th of March, 1935, i.e., the date of the
death of Bhavamma, alone with future mesne profits regarding the shares in the
B and the C Schedules properties. But the High Court could not award mesne
profits prior to August, 1940 which had never been claimed by the plaintiff in
the suit. We therefore modify the decree of the High Court and direct that
mesne profits 1940. Subject to that modification the decree passed by the High
Court is affirmed and the Appeal is dismissed with costs payable by the
contesting defendants to the plaintiff.
Appeal dismissed subject to modification.