T. R. Bhavani Shankar Joshi vs Somasundara Moopanar
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 54 of 1952
Decision Date: 24 April 1962
Coram: M. Hidayatullah, S.K. Das, J.C. Shah
In this case the Supreme Court recorded that the dispute involved a parcel of land that formed part of the Tanjore Palace Estate. The appellant, T. R. Bhavani Shankar Joshi, acquired ownership of the property in 1936 by virtue of a sale that arose from a mortgage decree obtained by his father in a suit dated 1926. The respondent, Somasundara Moopanar, had been in possession of the same land under a lease deed dated 30 July 1932 and, on 13 August 1936, secured from the appellant a further lease for a period of two years. Under the Madras Estates Land Act, 1908, as amended by the Third Amendment Act of 1936, occupancy rights were said to vest in any person who was in direct and actual possession of the land on 30 June 1934. Acting on this provision, the respondent instituted a suit seeking the issuance of a patta that would confirm his occupancy right, subject to the payment of a fair rent. The appellant contended that the provisions of the Act did not apply to the suit property because, being part of the Tanjore Palace Estate, it could not be regarded as an “estate” within the meaning of the statute.
The Court examined the historical background of the Tanjore Palace Estate, noting that after the Rajah of Tanjore died in 1855 without male heirs, the Government seized all of his properties. Later, in 1962, the Government issued an order described as “relinquishing” and “restoring” the private properties of the late Rajah to his widows. The appellant argued that this re‑vestment of property to the widows was not a fresh grant but a restoration of the pre‑existing situation, implying that the widows continued to enjoy the warams that they had possessed earlier. The Court held that the act of State made no distinction between the private and public properties of the Rajah; consequently, the private properties were lost to the State, leaving no surviving rights in the claimants. The Government’s order therefore amounted to a fresh grant made by the bounty of the Government rather than a revival of any antecedent right. The terminology “relinquished” or “restored” in the order was deemed to have no legal effect of reviving rights that had been extinguished by the act of State, and the title of the grantees derived solely from the Government’s order.
The Court observed that the act of State extinguished all pre‑existing rights, so that no right could be revived because none survived the act of State. Accordingly, the source of title for the grantees was the order issued by the Government. The Court relied upon the authorities in 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 [1957] 1 M.L.J. 72.
In the present civil appeal, numbered 54 of 1952, the appellant challenged a decree dated 19 March 1953 handed down by the Madras High Court in S.A. No. 1513 of 1948. The appeal was heard on 24 April 1962, and the judgment was delivered by Justice Hidayatullah. Counsel for the appellant included F.N. Rajagopala Sastri, M.I. Khowaja and B.K.B. Naidu, while the respondent was represented by the Attorney‑General of India, M.C. Setalvad, together with A.V. Viswanatha Sastri, R. Gopalakrishnan, J.B. Dadachanji, O.C. Mathur and Ravinder Narain.
The factual backdrop involved a dispute under section 55 of the Madras Estates Land Act, 1908, wherein the respondent sought a direction that a patta be granted to him for the suit land. The Revenue Divisional Officer of Kumbakonam decreed the suit, fixing the rent at Rs 1‑8‑0 per mah, the land comprising approximately 64 acres or 192 mahs. Historically, the land formed part of the Tanjore Palace Estate and, by a 1919 suit, fell to the share of Ry. Sivaji Rajah Saheb of Tanjore (Palace). The appellant later acquired possession and ownership of the land through a sale founded on a mortgage decree obtained by his father in a 1926 suit, and the appellant obtained actual possession in 1963.
While the suit was pending, the property was held by four minor heirs under the guardianship of their maternal uncle, appointed by the District Court of West Tanjore. In 1932 the respondent entered into a lease of the suit property with the guardian for a term of three years, formalised by a lease deed dated 30 July 1932. Under that lease the respondent remained in possession and cultivated the land, purportedly under pannai cultivation, until 30 June 1935. During the execution proceedings a receiver was appointed, and on 12 May 1935 the receiver granted a new lease for three years commencing 1 July 1935. After the appellant entered possession, he executed on 13 August 1936 a fresh lease deed for two years, recorded in folios 1346 and 1347, and, according to the respondent, continued in uninterrupted possession and enjoyment of the property thereafter.
The respondent’s claim was founded upon the Madras Estates Land Act, 1908, as amended by the Third Amendment Act of 1936, which provides that occupancy rights vest in a person who is in direct and actual possession of the land on the relevant date stipulated by the statute.
On 30 June 1934 the respondent asserted that the Madras Estates Land Act protected his interest in the land and that, upon payment of a fair rent of one rupee eight annas per maha, he should receive a patta granting him occupancy rights. The appellant argued that the land, identified as Pattiswaram Thattimal Padugai, formed a portion of the revenue village Thenam Padugai Thattimal and was neither an entire village nor an estate or a part of any estate. Consequently, the appellant maintained that the provisions of the Madras Estates Land Act could not be invoked because the land was not classified as ryoti land. Additionally, the appellant contended that the respondent was only a revenue farmer, i.e., an intermediate lessee, who did not personally cultivate the suit land either through the pannai system or by employing hired labour. Several other pleas were also raised, but the Court held that reference to those pleas was unnecessary because the arguments before it were confined to the findings on the three issues framed in the original suit.
The issues presented to the Court were as follows: (1) whether the village in which the suit properties were situated qualified as an inam within the meaning of Act XVIII of 1936, and whether it had existed as an estate before the enactment of that Act or had become an estate by operation of the Act; (2) whether the plaintiff was merely a lessee or a rent‑paying farmer, or whether he was the actual cultivator of the suit lands; and (3) whether the plaintiff, as a ryot, was entitled to occupancy rights under Act XVIII of 1936 for the reliefs claimed in the plaint. The suit had originally been decreed by the Revenue Divisional Officer. On appeal, the District Judge of West Tanjore dismissed the appellant’s challenge but altered the rent to four rupees per maha, deeming that rate proper and equitable. The matter was subsequently taken to the High Court, which affirmed the District Judge’s decree while further modifying the rent to seven rupees per maha and fixing a lump‑sum payment of one thousand three hundred and fifty rupees. A cross‑objection raised in the proceedings was also dismissed.
The central question before this appeal was whether the property under dispute, being part of the Tanjore Palace Estate, could be deemed to fall within the meaning of “lest” as used in the Madras Estates Land Act. Counsel for the appellant submitted that the property would qualify as such only if it formed part of an inam. However, the appellant also argued that the manner in which the property reverted to the widows of the Rajah in 1862, following a State action, indicated a restoration of the previous status rather than a fresh grant of estate, thereby affecting the applicability of the Act.
The Court first set out the historical background that gave rise to Government Order No 336 of 1862, a background that has been extensively narrated by the Privy Council in The Secretary of State in Council of India v Kamachee Boye Sahaba (1) and is also well known. The Rajah of Tanjore died in October 1855 without leaving a male successor; he was survived by a large number of widows and two daughters. Following his death, the Commissioner, Mr Forbes, acting under Government authority, took possession of the Rajah’s properties and placed them under his control. Mr Forbes informed the Government that the private estates of the Rajah and related holdings would be returned after an inquiry into any claims that might be presented. The senior widow, Kamachee Boye Sahaba, then instituted a Bill on the Enquiry Side before the Supreme Court of Madras and obtained a decree declaring that the seizure of the private estates was unlawful. The Secretary of State in Council of India appealed, and the Privy Council set aside the decree and ordered the dismissal of the Bill. After this reversal, a memorial was addressed to the Queen, and Mr Norton Senior travelled to England to seek the Government’s view. As a result of those negotiations, the Government in 1862 issued Order No 336, which both “relinquished” and “restored” the private properties of the former Rajah. Numerous decisions of the Madras High Court, some of which proceeded to the Privy Council, have since examined various portions of the Tanjore Palace Estate. The contention raised in this appeal—that Order 336 did not constitute a fresh grant but merely restored the earlier situation—has already been argued in those earlier cases. In Jijoyiamba Bayi Saiba v Kamakshi Bayi Saiba (1), the High Court held that the Government Order represented a grant of grace and favour to persons who, by the act of State, had lost all claim to the Rajah’s personal property, and that it did not revive any antecedent rights they might otherwise have enjoyed. A similar conclusion was reached in the Full Bench judgment of Sundaram Iyer v Ramachandra Iyer (2). The Fall Bench case dealt solely with the village of Mokhasa Ullikadai, and a question subsequently arose whether that decision was limited to that village or was applicable to other parts of the estate. In Abdul Rahim v Swaminatha (3), the Court extended the principle to other villages, holding that they too formed part of the Inam Estate created by the Government Order. Earlier Full Bench rulings were subsequently relied upon in a series of cases referenced in Abdul Rahim v Swaminatha (3) and in a more recent Madras High Court decision reported in Chidambaram Chettiar v Ramaswamy Odayar (4), which enumerated most of the authorities interpreting the Order as a fresh grant. Moreover, the Privy Council in Srimant Chota Raja Saheb Mohitai v Sundaram Ayyar (5) expressly described the 1862 Order as a grant and identified the 1862 recipients of the property as grantees.
In the decision of Chettiar v. Ramaswamy Odayar (4), the Court recorded a compilation of earlier judgments that treated the Government Order of 1862 as a fresh grant of property. The Privy Council, in Srimant Chota Raja Saheb Mohitai v. Sundaram Ayyar (5), specifically referred to that Order and cited several authorities: (1) (1868) 3 M.H.C.R 424; (2) (1917) I.L.R 40 Mad. 389; (3) I.L.R. [1955] Mad 744; (4) [1957] 1 M.L.J. 72; and (5) (1936) L.R. 63 I.A. 224. In those citations the Order was described as a grant and the individuals who received property in 1862 were termed the grantees. Nevertheless, some later cases expressed a contrary view. In Maharajah of Kolhapur v. Sundaram Iyer, (1) Spencer, J.C. J., seemed to question the earlier holding of Scotland, C.J., in Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (2) that a grant of grace and favour had been made in 1862. A similar dissent was noted in Sundaram v. Deva Sankara (3), although both of those decisions were later explained or effectively rejected on the point of whether the Order created a new grant. The Divisional Bench that is under appeal also relied on this consistent interpretation, indicating that for almost a century the Madras High Court has adhered to the view first articulated by Scotland, C.J. The Court emphasized that it would not be appropriate to disturb established titles by overturning this long line of decisions, and it found the arguments presently raised to be unsound.
The petitioners contended that the act of State initiated in 1856 by Mr. Forbes did not actually conclude until 1862, and that during the intervening period inquiries were made for the return of the Rajah’s private properties; they argued that the act of State therefore did not extinguish the original title but merely restored it without a fresh grant. The Court observed that the 1862 Government Order was presented not as a grant but as a communique conveying the decision to relinquish and subsequently restore the properties. The petitioners further cited dispatches in which Mr. Forbes stated that inquiries would be undertaken regarding the private properties of the Rajah and that those properties would be scrupulously returned, suggesting that even at that time there was no intention to complete an act of State against private property. The Court listed the authorities relied upon for that contention: (1) (1924) I.L.R. 49 Mad. 1; (2) (1868) 3 M.H.C.R 424; (3) A.T.R. 1918 Mad. 428. The principal question, the Court held, was whether the act of State was directed solely against the Rajah’s public (raj) properties or extended to his private holdings as well. In answering this, the Court turned to the Privy Council’s decision in Kamachee Boye Sahaba’s case (1), which wholly rejected the appellant’s argument. The Privy Council had ruled that the seizure of the private properties, effected by the British Government acting in its sovereign capacity through the East India Company, constituted an act of State beyond the jurisdiction of the Madras courts.
It was held that the seizure of the Rajah’s property constituted an act of State, and consequently the municipal courts possessed no jurisdiction to inquire into its propriety. The Court explained that the enquiry contemplated was not directed toward the Rajah’s private estates but rather toward certain other properties which, although held by the Rajah, actually belonged to third parties. Regarding all of the property that had been seized, the Court observed that the East India Company, exercising its sovereign power, might have thought fit to appropriate the entire estate of the late Rajah, both private and public, and asked whether such a circumstance conferred any jurisdiction on the Madras Court to review those actions. The answer given was that no distinction was drawn between private and public property and that the Madras Supreme Court had no jurisdiction over the seizure of either category.
The Court further noted that the letter of Mr. Forbes, which stated that the Rajah’s private property would be returned after an enquiry, had been incorrectly construed. It was clarified that the distinction made in the letter between private and public property did not pertain to the Rajah’s own holdings but to properties that might have been seized while appearing to be in the possession of, or apparently belonging to, the Rajah, although in fact they were subject to the claims of other persons. The Privy Council had observed that all claims that might be advanced to any part of the seized property, whether by institutions or individuals, were to be carefully investigated, and that any claim proven to be valid would be restored to its owner.
From this reasoning the Court concluded that, whatever the precise wording of the letter, it demonstrated that the Government intended to seize the entire estate that had actually been taken, irrespective of whether it was public or private, and that the seizure as a whole represented an act of State. Because the act of State had been directed against all the Rajah’s property, the Court found that no title could be said to remain outstanding in respect of any particular portion. The Privy Council further pointed out that the heirs, if any, could only hope for the benevolence of the British Government and possessed no legal claim or right to the seized lands. In this circumstance, the Court held it impossible to interpret the Government Order as anything other than a fresh grant. Although the Order employed the terms “relinquished” and “restored” and did not specify any terms or conditions on the manner in which the property was to be held, nor did it provide a list of the properties granted, it was suggested that a list must have existed even though it had not been produced before the Court.
In this case the Court noted that it was impossible to imagine a Government Order that did not also specify the particular properties to be returned, and therefore such a list must have accompanied the order. The document under consideration creates its own conditions and indicates the line of succession, so that the root of the family’s title derived from the Government Order, a point previously observed in Chidambaram Chettiar v. Ramaswamy Odayar (1). The next issue raised was that the documentary evidence produced did not disclose a grant of an entire inam village. Reference was made to the Government Order, which, in addition to naming villages, mentioned certain lands. It was argued that the suit land was neither a Mokhasa village nor part of one; rather it consisted of three separate blocks divided by rivers and distances, that none of the blocks contained residential houses, and that the village name had changed over time, as shown by the muchalikas of 1875, 1882 and 1904 (Exs. D-8, D-9 and D-10). The respondent contended that the Mokhasa village Pattiswaram Padugai was a whole inam village governed by the Madras Estates Land Act, 1908, that the respondent was in direct and actual possession on 30 June 1934, and that consequently the village fell within the protection of that Act. The appellant countered that Pattiswaram Padugai was not a whole inam village but was included in Thenam Padugai, a revenue village, and therefore it was neither an estate nor a part of an estate. All three Courts had ruled in favour of the respondent, raising the question of whether that decision rested on a lack of evidence. The evidence on this point consisted of both oral testimony and documentary material. Plaintiff‑Witness 2, Venkatarama Ayyangar, who claimed to have been the Karnam of Thenam and Pattiswaram Padugai for twenty‑four years, stated that Pattiswaram Padugai was a separate village with a separate account, although it was included in the Vattam of Thenam Padugai. Plaintiff‑Witness 4, Rajagopala Ayyangar, who was the in‑charge Karnam of Pattiswaram Padugai and whose father had also been Karnam, testified that for twenty years he knew the conditions; he explained that although Thenam Padugai, Pattiswaram Padugai and Vellapillaiyarpettai were part of the Thenam Padugai Vattam and were not contiguous, each village maintained separate accounts. He produced Exhibit P‑19 (No. 12 account) and Exhibit P‑19(a) (No. 12 part‑I account) relating to this village. In addition, a revenue record, Exhibit P‑3, although not a strict record of rights, was an official document of great value. It was described as Irrigation Memoir No. 7 Thenam Padugai Thattimal village, Kumbakonam Taluk, Tanjore District, and it stated: “Thenam Padugai Thattimal is an unsettled Mokhasa village lying four miles south‑west of Kumbakonam in the Cauvery Delta. It consists of three bits, the first bit lying between…”
In the record, the village was described as consisting of three distinct portions. The first portion lay between the Kodamurutti and the Mudikondan rivers, the second portion lay between the Mudikondan and the Tirumalairajan rivers, and the third portion was situated near the Sundarperumalkovil Railway station. Locally, the second portion was known as Pattiswaram Padugai and the third portion as Vellapilliarpettai. The document further stated that “The village is governed by the provisions of the Madras Estates Land Act 1 of 1908.” This official memorandum, dated 1935, indicated that the three blocks together formed a Mokhasa village of Thenam Padugai Thattimal. Wilson’s Glossary defined a Mokhasa village as “a village or land assigned to an individual either rent‑free or at a low quit rent on condition of service,” a definition that the Judicial Committee had accepted in Venkata Narasimha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur (1). The land‑revenue receipts filed as exhibits P‑10, P‑11, P‑12 and P‑22, together with the quit‑rent receipt, described the settlement as a single village. Moreover, the appellant, in exhibits P‑15 and P‑9, characterized Pattiswaram Thattimal Padugai as a village attached to the Mokhasa Thenam Padugai Vattam. In view of this collection of documentary evidence, the findings reached by the High Court and the two subordinate courts were clearly grounded on material proof. It was argued that the evidence represented a modern condition and that the issue required proof of an inam village as early as 1862, the year when the private properties of the Rajah were restored to his widows. Although the evidence did not extend back to 1862, it did reach to 1873 and there was no material to contradict its validity. Consequently, the Court did not consider the High Court to be in error in holding that the land formed part of an inam village since 1862. The absence of houses on the land and the fact that the suit land lay in three separate blocks were held not to defeat the documentary evidence produced on behalf of the respondent. Likewise, a change of name was not deemed fatal where the identity of the land could be properly established. Earlier contentions before the Court of First Instance, namely that the plaintiff was a revenue farmer and intermediary who had sub‑leased the lands and that the lands were the private property of the appellant, thereby depriving the respondent of any occupancy right, had been abandoned by the time the matter reached the High Court and were not pressed before this Court. In the present view, the judgment under appeal was affirmed in all its aspects. Accordingly, the appeal was dismissed with costs.