T. R. Bhavani Shankar Joshi Vs.
Somasundara Moopanar  INSC 163 (24 April 1962)
24/04/1962 HIDAYATULLAH, M.
CITATION: 1965 AIR 316 1964 SCR (2) 421
CITATOR INFO :
R 1968 SC1005 (6)
Act of State-Properties of Late Ruler seized
by Government- Subsequent restoration to heirs of private properties-If amount
to a grant-Nature of the property-Whether "estate" Occupancy
rights-Madras Estates Land Act, 1908 (Mad 1 of 1908), as amended by Madras Act
18 of 1936, s. 55.
The property in suit belonged to what was
known as the Tanjore Palace Estate. The appellant became owner of the property
in 1936 by virtue of a sale on foot of a mortgage decree obtained by his father
in a suit of 1926. The respondent bad been in possession of the property by
virtue of a lease deed dated July 30, 1932, and on August 13, 1936, he got a
lease of the property for two years from the appellant. Under the Madras
Estates Land Act, 1908, as amended by the Third Amendment Act of 1936,
occupancy rights vested in a person who was in direct and actual possession of
the Land on June 30, 1934. The respondent instituted a suit against the
appellant for the grant of a patta in occupancy right on payment of a fair
rent. The appellant pleaded that the provisions of the Act were not applicable
to the property in suit on the ground, inter alia, that as it was a part of the
Tanjore Palace Estate it could not be considered to be an estate within the
meaning of the term in the Act. The history of the Tanjore Palace Estate showed
that after the Rajah of Tanjore died in 1855, leaving no male heirs, the
Government seized all his properties.
Subsequently, in 1962 the private properties
of the Rajah were "relinquished" and "restored" by the
Government to the widows of the Rajah. The appellants contention was that the
manner in which the properties reverted to the widows of the Rajah in 1862
after an act of State showed that it was not a case of a fresh grant by the
Government but a restoration of the status quo ante, so that the widows enjoyed
both the warams, as before.
Held, that the act of State having made no
distinction between the private and public properties of the Rajah the private
properties were lost by that of State leaving no right outstanding in the
existing claimants. The Government order was thus a fresh grant due to the
bounty 422 of the Government and not because of any antecedent rights in the
The words "relinquished" or
"restored" in the Government order did not have the,legal effect of
reviving any such right because no rights survived the act of State. The root
of title of the grantees was the Government order.
The Secretary of State in Council of India v.
Kamachee Roys Saheba, (1859) 7 M. I. A. 476, Jijoyamba Bayi Saiba v. Kamkashi
Bayi Saiba, (1868) 3 M. H. C. B 424, Srimant Chota Raja Saheb Moyitai v.
Sundaram Ayyar, (1936) L. R. 63 I. A. 224 and Chidambaram Chettiar v. Ramaswamy
Odayar,  1 M. L. J. 72, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
54 of 1952.
Appeal from the judgment and decree dated
March 19, 1953, of the Madras High Court in S. A. No. 1513 of 1948.
F. N. Rajagopala Sastri, M. I. Khowaja and B.
K. B . Naidu, for the appellant.
M. C.Setalvad, Attorney-General of India, A.
V. Viswanatha Sastri, R. Gopalakrishnan., J. B. Dadachanji, O. C. Mathur and
Ravinder Narain, for the respondent.
1962. April 24. The Judgment of the Court was
delivered by HIDAYATULLAH, J.-In this appeal on a certificate, the appellant
was the original Defendant No. 1 in a suit filed by the respondent under s. 55
of the Madras Estates Land Act, 1908, seeking a direction for the grant of a
patta to him in regard to the suit land. The suit was decreed by the Revenue
Divisional Officer, Kumbakonam, who fixed the rent at the rate of Rs. 1-8-0 per
mah, the land being about 64 acres or 192 mahs.
This land originally belonged to what. was
known as the Tanjore Palace Estate, and by a suit 423 of 1919, it fell to the
share of Ry. Sivaji Rajah Saheb of Tanjore (Palace). It came into' 'the
possession and ownership of the appellant by virtue of a sale on foot of 'a
mortgage decree obtained by his father in a suit of 1926.
The appellant obtained :possession in 1963.
While the suit was pending, the property was in the possession of four minors
through their maternal uncle, who was appointed as their guardian by the
District Court, West Tanjore. In 1932, the respondent took the suit property on
lease from,the guardian for 3 years, by a lease deed dated July 30, 1932. Under
this lease, the respondent remained in possession and enjoyment of this
property till June 30, 1935, cultivating it, as-he alleged under pannai
cultivation. During the execution proceedings, however, a receiver was
appointed, and on May 12, 1935, the receiver granted a lease for 3 year from
July 1, 1935. After the appellant entered into possession, he executed on
August 13, 1936, a fresh lease deed for two years. (faslis 1346 and 1347) and
till the suit, according to the respondents, he continued in uninterrupted
possession and enjoyment of the property. The claim was made under the Madras
Estates Land Act, 1908, as -a 'Mended by the Third Amendment Act of 1936, under
'which occupancy rights vested in a person who was in direct and actual
possession of the land on June 30, 1934.
The respondent, therefore, claimed the
protection of the provisions of the Madras Estates Land Act, and thus to be
entitled to a 'patta in occupancy right on payment of a fair rent suggesting
Rs. 1-8-0 per mah as the fair rent.
The appellant contended that the land in
question known as Pattiswaram Thattimal Padugai was included in a revenue
village, Thenam Padugai Thattimal, and was neither an entire village nor an
estate or part of an estate,.and that thus the provisions of the Madras,
Estates Land Act did not 424 apply to it, because the land in question was not
ryoti land. It was also averred by the appellant that the respondent was a mere
farmer of revenue, that is to say, an intermediate lessee, who was not
cultivating the suit land himself or in pannai or with the help of hired
Various other pleas were raised, but to them
no reference is necessary, because the arguments in this Court were limited to
the consideration of the findings on Issues 1 to 3 framed in the original suit.
Those Issues were :
,(1) Is the village wherein the suit
properties are situated an inam within the meaning of Act XVIII of 1936 ? Was
it an Estate prior to the enactment of Act XVIII of 1936 or did it become an
Estate under the provisions of the Act ? (2) Is the Plaintiff a mere lessee or
farmer of rent or the actual cultivator of the suit lands ? (3) Is the
Plaintiff a ryot entitled to occupancy rights under Act XVIII of 1936 for the
reliefs claimed in the plaint ?" The suit, as already stated, was decreed
by the Revenue Divisional Officer. On appeal, the District Judge of West
Tanjore, dismissed the appeal, but modified the rent to Rs. 4 /-per mah as the
proper and equitable rate of rent. On further appeal to the High Court, the
judgment and decree of the District Judge were confirmed with the modification
that the rent was determined at Rs. 7/-per mah, and Rs. 1,350/- were fixed as a
lump sum. There was a cross-objection, which was also dismissed.
The question in this appeal is whether the
property in suit, being a part of the Tanjore Palace Estate, can be considered
to be an 'lest the meaning of the term in the Madras Estates 425 Land Act. That
it would be so if it was part of an inam was counsel for the appellant. He,
however, contended that the manner in which the property reverted to the widows
of the Rajah in 1862 after an act of State, did not show that the estate was
freshly granted, but was restored to the widows who enjoyed both the warams, in
the same way as the warams wers enjoyed before. Much of the arguments in the
case, therefore, was directed to establishing that in 1862 there was a
"restoration" of the status quo ante rather than a fresh grant by the
British Government. It is, therefore, necessary to recount, in brief, the facts
leading up to the Government Order No. 336 of 1862. These facts have been given
in considerable detail by the Privy Council in The Secretary of State in
Council of India v. Kamachee Boye Sahaba (1), and they are also very
well-known. The Rajah of Tanjore died in October, 1855, leaving no male heir to
succeed him. He left behind him a large number of widows and 'two daughters.
After his death, Mr. Forbes who was the Commissioner, under authority of
Government, seized the properties of the Rajah, and took them under his charge.
He, however, reported to the Government that
the private properties of the Rajah and others would be returned after an
enquiry into any claims that might be submitted. The senior widow, Kamachee
Boye Sahaba, thereupon, filed a Bill on the Enquiry Side of the Supreme Court
of Madras, and obtained a decree that the seizure of the private properties was
wrong. On appeal by the Secretary of State in Council of India, the Privy
Council reversed the decree, and ordered the dismissal of the Bill.
Thereafter,. a memorial was submitted to the Queen and Mr. Norton Senior went
to England to interview the Government. As a result of his efforts, in 1862 the
(1) k 1 @59) 7 M.I.A. 476..
426 private properties were
,'relinquished" and "restored" by the Government Order No. 336
Numerous cases were decided in the Madras
High Court, some of which also went before the Privy Council, dealing with
diverse items of the Tanjore Palace Estate. The argument which is raised in
this appeal, viz., that the Government Order was not a fresh grant but only led
to the restoration of the properties is not a new one, and was raised in those
cases. In Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1), the High Court held
that the Government Order was a grant of grace and favour to persons who had
forfeited all claims to the personal properties of the Rajah by the act of
State and was not a revival of any antecedent rights which they might have had
but for the act of State.
A similar view of the grant was taken also in
a Full Bench case in Sundaram Iyer v. Ramachandra Iyer (2). The Fall Bench case
was concerned only with the Mokhasa Ullikadai village, and the question later
arose whether the decision should be limited to that village in this estate or
extended to others. Subsequently, in Abdul Rahim v. Swaminatha (3) it was held
that the decision applied also to other villages, which must be regarded as
part of the Inam Estate, which was granted by the Government Order. Earlier
still, the decision of the Full Bench was relied upon in several cases, to
which reference has been made in Abdul Rahim v. Swaminatha (3) as also in a
recent case decided by the Madras High Court and reported in Chidambaram
Chettiar v, Ramaswamy Odayar (4). In the last mentioned case is to be found a
list of most of the decisions under which the Order was interpreted as a fresh
grant. Indeed, the Privy Council in Srimant Chota Raja Saheb Mohitai v.
Sundaram Ayyar(5) referred to the Government Order as (1) (1868) 3 M.H.C.R 424.
(2) ( 1917) I.L.R 40 Mad. 389.
(3) I.L.R.  Mad 744. (4)  1
(5) (1936) L.R. 63 I.A. 224.
427 grant and to the recipients of the
property in 1862 as the grantees. There are, however, cases in which a contrary
note was struck. In Maharajah of Kolhapur v. Sundaram Iyer,(1) Spencer, J.C.
J., appeared to doubt the decision of Scotland, C. J., in Jijoyiamba Bayi Saiba
v. Kamakshi Bayi Saiba (2 ) that there was a grant of grace and favour in 1862.
A similar discordant note was struck in Sundaram v. Deva Sankara (3) ; but
these cases have been subsequently explained or not accepted on this point. In
the judgment under appeal, the Divisional Bench has also referred to this
consistent view held about the Government Order, and it must, therefore, be
assumed that for nearly 100 years the Madras High Court has held the view which
was first expressed by Scotland, C.J. Apart from the fact that it would not be
open to us to disturb titles by reversing this long line of decisions, we are
of opinion that the arguments that have now been raised are not sound.
It is contended that the act of State begun
in 1856 by Mr. Forbes was not really over till 1862, and during the period,
enquiries were made for the return of the private properties of the Rajah, and
thus the act of State did not extinguish the original title, but it was
restored without there being a fresh grant. The Government Order of 1862 was
read to us to show that it was not worded as a grant but as a communiqué by
which the decision to relinquish and restore the properties was conveyed. It is
also argued that in the despatches, Mr. Forbes had himself said that enquiries
would be made about the private properties of the Rajah, which would be
scrupulously returned, and thus even at that time there was no intention to
complete, so to 'Speak, the act of State against the private properties.
(1) (1924) I.L.R. 49 Mad. 1. (2) (1868) 3
(3) A.T.R. 1918 Mad. 428.
428 The first question to decide is whether
the act of State was directed against only the raj properties or against the
private properties as well. Here, the decision of the Privy Council in
Kamachee, Boye Sahaba's case (1) repels the argument of the appellant
completely. Kamachee Boye Sahaba filed a Bill for the return of the private
properties, and the Privy Council held that as the seizure was made by the
British Government acting as a Sovereign power through its delegate, the East
India Company, it was an act of State, into the propriety of which the
municipal courts had no jurisdiction to enquire. It pointed out that the
enquiry which was to be made was not in elation to the private properties of
the Rajah but in connection with certain other properties which, though
belonging to third parties, were held by the Rajah. It observed, however, in respect
of all the properties that were seized., as follows :
"...... if the Company, in the exercise
of their Sovereign power, have thought fit to seize the whole property of the
late Rajah, private as well as public, does that circum stance give any jurisdiction
over their acts to the Court at Madras ?" and it answered that no
difference was made between the private and public properties, and the Madras
Supreme Court had no jurisdiction over the seizure of either. It also mentioned
that the letter of Mr. Forbes, that the private properties of the Rajah would
be returned after an enquiry, was wrongly construed. It pointed out (and we
think quite correctly) that the distinction made in the letter between private
and public properties applied not to the properties of the Rajah but to such
properties which might have been seized by the officer as in the possession of,
or apparently belonging the Rajah, while, in fault they belonged (1) (1859) 7
429 to or were subject to the claims of other
persons. It was these claims which were to be investigated, and the Privy
Council observed :
"All claims which might be advanced to
any part of the property seized, by institutions or individuals were to be
carefully investigated, and all to which a claim might be substantiated would
be restored to the owner." It then concluded that whatever the meaning of
the letter it showed that the Government intended to seize all the property
which actually was seized, whether public or private, and the seizure as a whole
was an act of State.
The act of State having thus materialised
against all the properties, public or private, of the Rajah, no title could be
said to have remained outstanding in any one. The Privy Council pointed out
also that the heirs such as there were could only look to the bounty of the
British Government and had no claim or right in law. In this state of affairs,
it is impossible to construe the Government Order as anything but a fresh
grant. It is stated that it is not worded as a grant, because it uses, the
words "relinquished" and "restored" and also it does not
set out any terms or conditions on which ,the property was to be held ; nor
does it give a list of the properties so granted. As regards the list of
properties, it has always been felt that there must have been one, though it
does not appear to have been produced in a court of law. If the properties were
sorted out, it is inconceivable that the Government Order would not specify
also the properties to be returned, and such a list must have accompanied it.
The document in question creates,, its own conditions, and indicates the line
of succession. The root of title of the family was thus the 430 Government
Order, and it has been so observed in Chidambaram Chettiar v. Ramaswamy Odayar
The next question raised is that the
documentary evidence produced in the case does not disclose the grant of an
entire inam village. Reference in this connection is made to the Government
Order, in which in addition to the villages there is a mention of certain
lands. It is argued that the suit land is neither a Mokhasa village nor a part
of one, that it is one of three blocks which are separated from one another by
rivers and distances, that there are no residential houses in any of the three
blocks, and lastly that the name of the village has changed from time to time,
as is evidenced by the muchalikas of 1875, 1882 and 1904 (Exs. D-8, D-9 and
D-10). The case of the respondent was that the Mokhasa village, Pattiswaram
Padugai, was a whole inam village, and it was governed by Madras Estates Land
Act, 1908, that the respondent was in direct and actual possession on June 30,
1934, and therefore within the protection of that Act. The case of the
appellant was that Pattiswaram Padugai was not a whole inam but village was
included in Thenam Padugai which was a revenue village, and since Pattiswaram
Padugai was not an entire village, it was neither an estate nor a part of an
estate. All the three Courts have held in favour of the respondent. The
question is whether the decision proceeds on no evidence. The evidence in this
behalf is oral as well as documentary.
P.W. 2 Venkatarama Ayyangar, claimed to be
the karnam of Thenam and Pattiswaram Padugai for 24 years. He stated that
Pattiswaram Padugai was a separate village with separate account and , was
included in the Vattam of Thenam Padugai.
Rajagopala Ayyanger (P.W.4) who was the
in-charge (1) (1957) 1 M.L.J. 72.
431 karnam of Pattiswaram Paduqai, his father
being the karnam, claimed knowledge of the conditions for 20 years. He stated
that though Thenam Padugai, Pattiswaram Paduqai and Vellapillaiyarpettai were
included in the Thenam Padugai vattam and not contiguous, there were separate
accounts for each village. He proved Ex. P 19 (No. 12 account) and Ex.P-19 (a)
(No. 12 part If account) relating to this village. Then, there is the revenue
record, Ex. P-3, which, though not strictly a record of rights, is an official
document of great value. It is described as Irrigation Memoir No. 7 Tenam
Padugai Thattimal village, Kumbakoman Taluk Tanjore District. In that, it is
stated as follows :
"Teriampadugai Tattimal is an unsettled
mokhasa village lying 4 miles south-west of Kumbakonan in the Cauvery Delta. It
consists of three bits, the first bit lying between the Kodamurutti and the
Mudikondan rivers and the second bit between the Mudikondan and the
Tirumalairajan rivers and the third bit near Sundarperumalkovil Railway
station. The second bit is locally known as Pattiswara m Padugai while the
third as vellapilliarpettai.
"The village is governed by the
provisions of the Madras Estates Land Act 1 of 1908." This document of the
year 1935 shows that the three blocks together constituted a Mokhasa village of
Thenam Padugai Thattimal. Mokhasa village has been defined in Wilson's Glossary
as "a village or land assigned to an individual either rent-free or at a
low quit rent on condition of service." This definition was accepted by
the Judicial committee in Venkata Narasimha Appa Rao Bahadur v. Sobha- nadri
Appa Rao Bahadur (1). Further, in the land revenue receipts, Exs. P-10, P-11,
P-12 and P-22, (1)  1. I.L.R. 29 Mad. 52, 55.
432 and in the quit rent receipt which have
been filed, the village is described as a whole village and even )he appellant
in Exs. P-15 and P-9 described the Pattiswaram Thattimal Padugai as a village
attached to Mokhasa The nam padugai Vattam.
In view of this evidence, it is quite clear
that the finding concurrently reached in the High Court and the two Court below
is based on evidence. It was contended that this evidence is of modern times,
and what is to be proved is the existence of an in am village in 1862, when the
private properties of the Rajah were returned to his widows. There is no doubt
that the evidence does not go to that early date, but the documents take it
back to 1873, and there is nothing to show to the contrary. In this state of
the evidence, we do not think that the High Court was 'in error in holding that
this land is a part of an inam village, aid has been so ever since 1862. The fact
that there are no houses and that the suit land is situated in three different
blocks does not militate against the evidence, which has been produced on
behalf of the respondent. Nor do we think that the change of name can count, if
the identity of the land is properly established. It was also contended in the
case in the Court of First Instance that the plaintiff was a farmer of revenue
and an intermediary, because he had leased out the lands in his turn, and
further that the lands were the private lands of the appellant, in Which the
respondent could not claim any occupancy rights. These two pleas appear to have
been abandoned by the time the case reached the High Court, and were not
pressed upon us.
In our opinion, the judgment under appeal is
right in all the circumstances of the case.
The appeal thus fails, and is dismissed with