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PETITIONER: R.E.M.S. ABDUL HAMEED

       Vs.

RESPONDENT: GOVINDARAJU & ORS.

DATE OF JUDGMENT:       01/08/1999

BENCH: A.P.Misra

JUDGMENT:

MISRA, J. L.....I.........T.......T.......T.......T.......T.......T..J

     These  two  appeals raise a common question hence  are being  disposed  of by means of this common  judgment.   The question  raised  is, whether Arayapuram Thattimal  Padugai, consisting  of  two  distinct areas,  viz.,  Mela  Thattimal Padugai  and  Kizha  Thattimal  Padugai  was  known  at  the relevant  time, is a minor inam coming within the purview of The  Tamil  Nadu Minor Inams (Abolition and Conversion  into Ryotwari) Act, 1963, (hereinafter referred to as the Act 30 of  1963)  or it would fall under the Madras  Inam  Estates (Abolition  and Conversion into Ryotwari) Act XXVI of  1963, (hereinafter referred to as the Act No.  26 of 1963).  The State  Government initially issued notification treating  it to be under Act No.  26 of 1963, later withdrew and notified it under Act No.  30 of 1963.  The appellants contention is that  the State Government rightly issued it to be under Act No.   30  of  1963 and it is held to be valid  also  by  the Settlement Officer, S.R.  II, Thanjavur.

     The  short  facts  are that the  respondents  filed  a petition under Section 5 of the Madras Inams (Supplementary) Act  (XXXI of 1963) (hereinafter referred to as Act No.  31 of 1963) for a declaration that the said two distinct areas of  lands  in  Arayapuram   Thattimal  Padugai  Village,  of Papanasam Taluk form a new inam estate falling under Act No. 26  of  1963.  The notification issued by the Government  of India  under  Act No.  30 of 1963 is illegal, liable  to  be quashed  as the original grant of the disputed areas was not made  in  terms  of  acreages or cawnies  hence  would  only constitute  to be a part of inam estate in view of Section 2 (11)  of  the Act No.  26 of 1963.  The  Settlement  Officer after  hearing  parties, including the State, held that  the Madras  High  Court  in  Karumbavira  Vanniar  &  Ors.   Vs. Govindaswami  Vanniar  & Ors., 1977 Madras Law Weekly,  741, held  that  Arayapuram  Thattimal Padugai  is  not  estate within the meaning of Section 3 (2)(d) of the Madras Estates Land  Act,  1908.  It further recorded that  evidence  shows that  in  1829 there were two areas, namely, Mela  Thattimal Padugai  (hereinafter  referred  to  as  Mela)  and  Kizha Thattimal Padugai (hereinafter referred to as Kizha).  The former formed part of Rajagiri village and the latter formed part  of  Papanasa village.  It is the area of this land  in

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Mela   and  Kizha  which  is   the  subject   matter   under consideration.  The Settlement Officer held it neither to be whole  village nor part village, and even not covered  under Explanation  1  (a) of Section 2 (11) of the Act No.  26  of 1963 as the grant is not of any fraction or specified number of shares of a part of village.  It concluded that the grant was  of  specified  extents of lands, hence, is  covered  by Explanation  1 (b) of Section 2 (11), thus a minor inam  and so  the suit land in Arayapuram Thattimal Padugai is only  a minor  inam  falling under Act No.  30 of 1963, thus  upheld the  impugned notification.  The petition of the respondents was  accordingly dismissed.  The respondents then  preferred an  appeal before the Minor Inam Estates Abolition  Tribunal (Subordinate Judge) of Thanjavur, hereinafter referred to as the Tribunal).  The appeal was allowed.  The Tribunal held with  reference to the Karumbavira Vanniar (Supra) that  the undisputed  facts  which emerges are that in 1862, which  is the  year  of grant, there were two areas, namely  Mela  and Kizha  falling  under  villages   Rajagiri  and   Papanasam, respectively.   In the list of 193 villages in the grant  of 1862,  one  of the entries is Arayapuram Thattimal  Padugai. It  further  records, it is conceded by the learned  counsel for the respondents (appellants here) that the extent of the padugai  or the boundaries of the lands in question are  not given.   It  is these two portions, namely, Mela and  Kizha, subsequently,  were  merged  together and  formed  into  the present  revenue  Village  No.  5  as  Arayapuram  Thattimal Padugai  in 1919.  The Tribunal further accepted  submission on behalf of the appellants (respondents here) that the said two  distinct  portions  granted  in   inam  can  be  easily identified  without its extents and boundaries being  given. Thus,  it  construed it to be a part village inam  estate. The Tribunal also accepted that Arayapuram Thattimal Padugai which  mentioned among 193 items covering the grant of 1862, consisted  of  the aforesaid two portions, namely  Mela  and Kizha,  respectively.  So what have been granted are defined portions  in two different villages.  But extents of the two padugais  are  not given.  It is also relevant to quote  the following  observations made in Karumbavira Vanniar (Supra), as  the said observations have also been referred and relied by  the Tribunal.  This was because both the parties  relied it for gathering facts, in the absence of proper evidence in the present case.  This reliance was, as it also pertains to the  same estate of Raja of Thanjavur with reference to this land  itself which is in dispute though was not between  the same   party   with  a   different  question  raised.    The observations are:

     It  is  in  evidence that as early as the  year  1829 there  were  two  areas, Mela Thattimal  Padugai  and  Kizha Thattimal  Padugai,  the  former  formed  part  of  Rajagiri Village  and  the latter of papanasam  Village.   Evidently, both  these  portions,  although there was  no  geographical contiguity,  were designated as Aryapuram Thattimal  Padugai at  the time when the East India Co., took over the  village and  later granted it to the heirs of the last of Rajahs  of Tanjore.It  will  be plain from what we have stated  above, that both before and immediately after the grant of the year 1862,  the  two  parts of the  present  Aryapuram  Thattimal Padugai  were attached to different taraf villages and could have only formed part of those villages.This will show that there  was  no  such distinct village of that  name,  though there  were two areas designed as Mela Thattimal Padugai and Kizha  Thattimal Padugai, which perhaps for convenience  was referred  to  as  Aryapuram  Thattimal at the  time  of  the

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grant.We,  therefore, agree with the conclusion reached  by the  learned  Subordinate Judge as well as by  the  Tribunal that the grant was of two separate bits of land lying in two different  Taraf villages and that it was now the year  1919 that  they were amalgamated to form what is now known as No. 5, Aryapuram Thattimal Padugai village.

     Hence,  the  Tribunal held that what were  granted  in 1862  were  two distinct portions of land in  two  different taraf  villages.  It set aside the finding of the Settlement Officer by holding:

     The  learned Settlement Officer is not quite correct when  he says that the evidence available indicates that the grant  was of a specified extent of lands only.   Admittedly the extents are not mentioned in the grant

     The  said  earlier  decision records that  the  survey numbers of Kizha are 1 to 56 and of Mela are 57 to 68 though are  separated  by  a mile but they formed one  block.   The grant  thus  is  of two parts of two  villages.   Thus,  the Tribunal  allowed the appeal, set aside the judgment of  the Settlement  Officer and also the notification under Act  No. 30  of  1963  and  held  that   the  said  two  parts   were compendiously known then as Arayapuram Thattimal Padugai and is  a  part village inam estate.  Aggrieved by  this,  the present appellants filed revision before the High Court.

     Appellants  submitted  before the High Court,  in  the absence  of  original  grants,  on  the  residuary  evidence specially  on  the fact as recorded in  Karumbavira  Vanniar (supra) to which both parties relies, expresses the grant to be  only in terms of acreages or cawnies and, therefore,  it cannot  be  deemed to be a part village inam estate.   The submission,  in  fact,  was  in terms  of  the  language  of Explanation  1 (b) of Section 2 (11) of Act No.  26 of 1963. On  the other hand, submission for the respondents was  that it  is  established by the evidence that the grant was of  a part  of  the  village and was not expressed in  acreage  or cawnies  and  thus would be covered by Explanation 1 (a)  of Section  2 (11).  In order to substantiate that the area  of the aforesaid two Mela and Kizha was described in an acreage etc.  reliance was placed for the appellant on the following observations in Karumbavira Vanniar (Supra);

     This position is made clear from the paimash accounts and the subsequent surveys.  Mala Thattimal, which till 1919 formed  part  of  Rajagiri village, covered as  we  said  an extent  of 26-21 acres.  In the Paimash accounts of the year 1829  the area was designated by Nos.  1272 to 1302.  In the survey  of  the year 1886 the area was represented by  S.No. 11  of Rajagiri.  In the land register of the year 1919, the area  was  given Nos.  45 to 49 in the newly formed No.   5, Arayapuram Thattimal Padugai

     Now,  coming to Kizha Thattimal, which covered on area of  267-44  acres they were represented Nos.  335 to 614  in the  Paimash account of the Taraf Village of Papanasam.   In the  survey of 1886 the corresponding numbers were S.Nos.  1 to  10  in  No.   2, Arayapuram  Thattimal  Padugai  .   The position  continued  to be the same in the survey  of  1921. But  in the Record of Rights Register, they have been  given S.Nos.  1 to 56 in No.  5, Arayapuram Thattimal Padugai.

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     The  reference of the acreage therein was relied.  The High  Court  rejected  this  submission  holding  that  this collateral  references  of  paimash account  and  subsequent survey  were compiled after the grant, hence it could not be concluded  it  was  so described in the  grant  itself.   It further  records  that  the grant was only of  two  distinct portions  in  two  different villages wherein  there  is  no specific  mention  of  its extent, hence it would  not  fall under  (b)  of  Explanation 1 of Section 2(11)  and  so  the notification by the Government under the Act No.  30 of 1963 cannot  be  sustained.   The High Court  finally  concluded, having  regard to the definition of minor inam in Section  2 (9) of the Act No.  30 of 1963 read with the definition of a part village named estate in Section 2 (11) of the Act No. 26  of  1963,  the Tribunal was right in setting  aside  the order  of the Settlement Officer and the notification of the Government  under Act No.  30 of 1963.  It is this  judgment which  is the subject matter of the present appeals.  It  is significant  that  the  State Government has not  filed  any appeal  against it.  Though it is one of the respondents but has  not made any submission either way.  It is also not  in dispute, the original grant has not been filed and is not on the record.

     The  central question in issue is, the  interpretation of  sub-clause  (b), Explanation 1 to Section 2 (11) of  the Act  No.   26 of 1963.  Learned counsels, for the  aforesaid respective  appellants,  Mr.  Tripurari Ray and Mr.   A.T.M. Sampath  senior  counsel, submit on the facts of this  case, the  disputed  land cannot be construed to be part  village inam  estate  to fall within Act No.  26 of 1963 but  is  a minor Inam to fall under Act No.  30 of 1963.  Before taking up this issue of part village inam estate, it is necessary to  look back to the history of inam lands, how it  emerged, recognised,  canalised  and  dealt   with  through   various enactments  till it reached into the legislative umbrella of both  Act Nos.  26 and 30 of 1963.  The law relating to  the land  holdings,  agrarian reform, in the Presidency town  of Madras,  with  reference to the landlords and ryots  started from  the previous century and it is interesting to note few of the essential features of this agrarian development.  The origin  of  inam tenure is traced back to its grant made  by Hindu  rulers  for  the support of  temples  and  charitable institutions,  for  the maintenance of holy and learned  men rendering  public service, etc.  This practice was  followed by the Muhammadan rulers and by British administrators until about  a  century ago.  According to the ancient Hindu  Law, there  were  two beneficial interests in land,  namely,  (1) that of the sovereign or his representative, and (2) that of the  cultivator holding the land.  The sovereigns right  to collect  a  share of the produce of the cultivated land  was known  by  the  name melvaram, the share of  the  ryot  or cultivator  was  known by the name kudivaram.  The  ryots right arose from occupation of the land.  Thus, the grant of an  inam  did  not touch, and could not  have  touched,  the cultivators  right  in  the land,  namely,  the  kudivaram, except  in rare cases where the grantor was also holding the cultivators interest at the time of the grant.

     It is also relevant to refer to Madras Inams Act, 1869 (Madras  Act  VIII  of 1869).  This Act  declares  that  the enfranchisement  of an inam and the grant of a title deed to the  inamdar should not be deemed to define, limit, infringe

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the  right  of any description of holder or occupier of  the land from which the inam was derived.  Thus, the right of an inamdar   does   not   ordinarily   extend   to   the   full proprietorship of the land, especially in the case where the inam  consisted  of an entire village.  Thus, inam  villages were  treated  as  estates on exactly the  same  footing  as zamindaris  in the Madras Regulations of 1802 and 1822,  the Madras  Rent  Recovery  Act, 1865,  the  Madras  Proprietary Estates  Village  Service Act, 1894 (Madras Act II of  1894) and Madras Hereditary Village Officers Act, 1895 (Madras Act III  of 1895) and it ultimately resulted into Madras Estates Land Act, 1908.

     The  Madras  Estates  Land Act (Act No.  I  of  1908), (hereinafter referred to the 1908 Act) came into force which is  the  first major enactment in the Presidency  of  Madras controlling  and defining the rights of the landholders  and ryots.   Prior  to  that  both   zamindars  and  ryots  were subjected  to  and treated under the Madras  Regulations  of 1802  and Regulation No.  IV of 1822.  The 1908 Act repealed the  Madras Rent Recovery Act (VIII of 1865).  This Act  not only safeguarded the interest of the cultivators but also of the   landlords  including  collection  of  rents.   It   is interesting  to record here the concern expressed by Honble Mr.   Forbes on this subject while introducing the  Original Estates Land Bill in the Council, which is quoted hereunder:

     The  ancient zamindars are being displaced by new men who  have no traditional connection with the soil, and whose action  will  be  guided  solely by  commercial  or  selfish motives,  and who will strain the laws to its utmost limits. A  Law is a bad Law which gives opportunities for  diverting its  power  to oppress the poor and weak.  Moreover,  unless rights  are  firmly fixed and declared the slow  process  of erosion  imperceptibly wears them away.  The zamindar is the flood  stream;  the ryot, the river bank.  Not only  justice to a weak class, who are specially in need of the protection of  the  strong  arm,  but on  every  ground  political  and economic the Government could not sit by impassive.

     The  Government  have  to   hold  the  scales  evenly, distributing  the  benefits of the Act both to the  landlord and  tenant,  remembering  that the value of a  thing  to  a person  does not depend on its intrinsic cost.  On the  side of  the  zamindar,  he  is given a charge  over  the  ryots holding  -  a first charge indefeasible by any  encumbrance; he  has been given the right to enhance rent with  reference to rise in prices;

     On  the other side, the ryot has been confirmed in his rights;   he is secured in the occupancy of his holding from which  he  cannot be ejected so long as he pays  his  shist; nor  can  his  shist be enhanced except by suit  before  the Collector;  and he is given the right to have the irrigation of his fields secured;

     Looking  at  both sides it must be admitted  that  the Government  has,  as far as it lay in its power,  discharged with   equal  justice  its   obligations  to  safeguard  the established rights of both zamindars and ryots, in the sense of the old Regulation IV of 1822.

     The  intervention of the Government is thus as much to the  benefit of the landholders as of the ryot.  All that is done  for the ryot is to protect him against the horrors  or

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arbitrary  eviction, against the oppression of rackrents and to secure to him his right to enjoy his established share of the produce, conditions which are essential to the stability of  an agricultural community and the undoubted and  ancient right of the Madras ryot.

     The  aforesaid observations by Hon.  Mr.  Forbes gives clear  indication of the objects and reasons for introducing the  1908  Act.  It is interesting to see how even  at  that time  the  exploitations  by the haves  for  commercial  and selfish  ends down right were condemned and provisions  made to  protect the oppressed, poor and weak.  Subsequently,  by Madras Amending Act No.  IV of 1909 the definition of rent as  given under the 1908 Act was changed with an object that the  land holder should not employ the machinery of the  Act for the recovery of quit rents from intermediate landholders but  seek his remedy only through civil courts.  Next Madras Act  VII of 1934 brought various changes for the benefit the ryots.   This was followed by Madras Act I of 1936  amending 1908  Act to bring in inam villages in which the inamdar had the  kudivaram interest within the purview of 1908 Act.   It is  interesting  after this was passed, His  Excellency  the Governor  General  withheld his assent to the provisions  in the  Madras  Estates Land Amendment Act of 1934 under  which occupancy  rights  were to be conferred on tenants  in  inam villages  even  though  kudivaram  interest  may  have  been granted  to the inamdars.  This led to the appointment of  a Select Committee which drafted another bill giving effect to the  suggestion made by His Excellency the Governor  General which  made  into Madras Estates Land (Third Amendment)  Act XVIII  of 1936.  By this definition of estate in Section 3 (2)(d) of the 1908 Act was amended to bring within its scope any inam village of which the grant has been made, confirmed or  recognised by the British Government.  By virtue of  new Section  23 a presumption was laid down that an inam village was  an estate even before the commencement of the aforesaid 1936 Act.  There were some other amendments also but are not relevant for this case.  Then came the two Acts, namely, Act No.  26 of 1963 and Act No.  30 of 1963.  Prior to these two enactments  there were two forms of inam (i) the full  inam, where  whole village comprised of inam and (ii) part inam or minor inam, where part of village was given in inam.

     We now herewith give some of the decisions as how they have understood and interpreted the said relevant provisions including the provisions to which we are concerned.

     In  Act  No.  26 of 1963 it is necessary to  refer  to some  of the definitions to appreciate this case and some of the decisions given by courts.  Sub-section (4) of Section 2 defines  existing inam estate means an inam village  which became an estate by virtue of the Madras Estates Land (Third Amendment)   Act,   1936  (Madras   Act  XVIII   of   1936). Sub-section (7) defines inam estate means an existing inam estate  or a new inam estate.  Sub-section (9) defines  new inam  estate  means  a  part village  inam  estate  or  a Pudukkottai  inam  estate.   Sub-section (11) of  Section  2 defines   part  village  inam   estate,  which  is  quoted hereunder;

     (11)  part  village inam estate means a part  of  a village  (including  a  part  of a  village  in  the  merged territory  of Pudukkotiai) the grant of which part has  been made,   confirmed   or  recognised    by   the   Government, notwithstanding  that subsequent to the grant, such part has

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been    partitioned    among    the    grantees    or    the successors-in-title of the grantee or grantees.

     Explanation  1.  - (a) Where the grant of a part of  a village  as an inam is expressed to be a specified  fraction of, or a specified number of shares in, a village, such part shall   be  deemed  to  be  a  part  village   inam   estate notwithstanding that such grant refers also to the extent of such  part in terms of acreage or cawnies, or of other local equivalent.

     (b)  Where a grant as in inam is expressed to be  only in   terms  of  acreage  or   cawnies,  or  of  other  local equivalent,  the area which forms the subject- matter of the grant shall not be deemed to be a part village inam estate.

     Explanation II.  - A part of a village granted in inam shall   be  deemed  to  be  a  part  village   inam   estate notwithstanding  that  different parts of such part  village were  granted, confirmed or recognised on different dates or by different title-deeds or in favour of different persons;

     The  minor  inam  defined under sub-section  (9)  of Section  2 of Act No.  30 of 1963.  The relevant portion  is quoted hereunder:

     (9)  Minor inam means - (i) any inam which is not - (a) an estate within the meaning of sub-clause (d) of clause (2)  of section 3 of the (Tamil Nadu) Estate Land Act,  1908 (Tamil  Nadu  Act I of 1908);  or (b) a new inam  estate  as defined  in  clause  (9) of section 2 of  the  Inam  Estates Abolition  Act;   or  (c) an estate within  the  meaning  of sub-clause  (d)  of  clause (2) of section 3 of  the  (Tamil Nadu)  Estate land Act, 1908 (Tamil Nadu Act I of 1908),  as in force in the territories specified in the Second Schedule to  the  Andhra  Pradesh  and (Tamil  Nadu)  (Alteration  of boundaries) Act, 1959 (Central Act LVI of 1959);

     In  Secretary  of State Vs.  Velivelapalli Mallayya  & Ors.,  AIR  1932  PC 238, (From Madras) recognised  the  two forms of inams.  It records:

     It is usual to divide inams into two classes, namely, (1)  major  and  (2) minor.  Technically a major inam  is  a whole  village or more than one village, and a minor inam is something less than a village.

     If further defined and held:

     A  Khandrika  means  a small hamlet.  It is  a  large block of land granted as inam, less than a village, but much larger than an ordinary inam

     In  H.R.   Sathyanarayana Rao Vs.  The State of  Tamil Nadu, 1977 (1) Madras Law Journal 305, reliance is placed on the following passage:

     This  is also clear from the fact that Explanation  1 (b)  excludes  where the grant is of an extent of land.   If

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the  grant  was  of a specified fraction of a village  or  a specified  number of shares in a village, the inam would not be  covered  by the definition of inam estate under  section 2(7) of the Madras Act XXVI OF 1948 and it would also not be an existing inam under section 2(4).  It is those inams that were  sought to be covered under section 2(11) of the Madras Act  XXVI of 1963.  If, part inam village is understood as literally  meaning  any  part of a village  then  that  will directly  come under Explanation 1(b) to section 2(11).  All those  inams  which related to a part of a village  of  with reference  to specified extent of land, in my opinion, would be covered by the definition of minor inam in Madras ACT XXX of 1963 and it would not be a part village inam estate under section 2(11) I am therefore of the opinion that Marasandram village  is  also  not a part village  inam  estate.   The result of it is the notification of the village under Madras Act XXVI of 1963 was not valid and is liable to be set aside and it is accordingly set aside.

     This  case  records  in  order   to  come  within  the definition of an inam estate three essential conditions have to be satisfied, namely, (i) the grant should be of both the warams  or  of  melwaram  to a  person  already  owning  the Kudivaram  thereof;  (ii) it should be of the whole  village or  named  village  and  (iii) the  grant  should  be  made, confirmed  or  recognised by the British Government.   There the  question was whether Marasandram village could be  said to be a confirmation of grant of a whole village?  The Court records:

     Where  the  grants of two minor inams and portion  or the village remaining thereafter were confirmed by the Inams Commissioner  separately and three separate title deeds were issued,   and  the  Inam   Commissioner  had  recognised  by confirmation  of  the part of the village the title  of  the grantee  derived  from the original grant, it could  not  be said  to be a confirmation of a whole village.   Marasandram village was not an existing inam estate within the meaning of section 2(9) of the Madras Act XXVI of 1963.

     In  Sri  Akkaloi  Ammani Chatram Vs.  State  of  Tamil Nadu,  1980  Madras Law Journal, 67 (Full Bench), the  Court considered  both  the Acts, namely, Act No.  26 of 1963  and Act  No.  30 of 1963.  This is also a case with reference to the  estate  of  Raja  Thanjavur,  as  is  the  case   under consideration  by  us also.  The question in issue  in  this case  is similar to the question in issue before us.   There also  the  Settlement Officer under Section 5 of  the  Tamil Nadu  Act XXXI of 1963 was to decide whether a non- ryotwari area  is  an existing inam estate or a part village  inam estate  or  a  minor inam or a whole  inam  village  in Pudukkottai.   There  also  as in the present  case  it  was nobody  case  that the property in issue was of  whole  inam village.   The  relevant portion of the decision  is  quoted hereunder:

     33.   Let us assume for the sake of argument that  in view  of the earlier decision of the Division Bench of  this Court  in  A.S.  Nos.  223 and 292 of 1956, it is no  longer open  to  any  of the parties to contend that  the  inam  in question  will  come within the scope of the existing  inam estate.  Still the case can certainly come within the scope of  new  inam  estate because the definition of  the  term inam estate in section 2 (7) of the Tamil Nadu Act XXVI of 1963 takes in both an existing inam estate and a new inam

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estate.

     34.  We have already referred to the definition of the new inam estate in section 2(9) of the Tamil Nadu Act XXVI of  1963  and that means a part village inam  estate.   We have  again  referred to the definition of the  term,  part village  inam estate in section 2(11) of the Tamil Nadu Act XXVI  of  1963 and in the present case both  the  Settlement Officer and the Tribunal have held that the inam in question is  a  part  village inam estate and therefore  a  new  inam estate  and consequently an inam estate under the Tamil Nadu Act XXVI of 1963.

     The  Full Bench further considered the meaning of  the word  part as referred in the main part of the  definition of part village inam estate in sub-section (11) of Section 2  of  Act  No.   26  of  1963  with  reference  to  various dictionaries.   It  recorded that the word part is  not  a word of art or a technical term conveying a special meaning. It records:

     There  is nothing in the scheme of the Tamil Nadu ACT XXVI of 1963 or in the context of the definition of the term part   village  inam  estate   justifying  giving  to  the expression part occurring therein a meaning other than the dictionary meaning referred to above.

     There  is nothing in the scheme of the Act No.  26  of 1963  or  in  the context of definition of  the  term  part village  inam  estate justifying to the  expression  part occurring  therein meaning other than the dictionary meaning referred  to  above.   Significantly, the  Full  Bench  with reference  to  Explanation  1 (b) of the  aforesaid  Section recorded the findings as:

     The  very  deeming provision will make it clear  that but  for  this explanation, the grant would fall within  the scope of the definition itself.  Therefore, if Explanation 1 (b) had not been there, even where the grant, as an inam, is expressed  to  be only in terms of acreage or cawnies or  of other  local  equivalent, it will still mean a part  village inam  estate, as defined in section 2(11) of the Tamil  Nadu Act  XXVI  of 1963 and be creating afiction, in  Explanation 1(b),  the  said grant is taken out of the definition  of  a part  village  inam estate.  Similarly Explanation  II  also will  support our conclusion that the word part should  be given its ordinary meaning.

     39.  The next aspect to be considered in this case is, whether Explanation (b) can come into operation at all.  The said Explanation refers to acreage or cawnies or other local equivalent.   The  expression other local equivalent  must necessarily mean equivalents to acreage or cawnies.

     From  the  aforesaid decisions and  enactments,  their amendments  it is revealed, the word estate as defined  in Section  3  (2)(d) of 1908 Act was different than this  word after  its  amendment  by  Tamil Nadu  Act  XVIII  of  1936. Similarly,  the  word estate as defined in Tamil Nadu  Act XXVI  of  1963 is different then what is defined  under  the 1908  Act  as it originally stood but is the same after  its amendment  by  the  Tamil  Nadu   Act  XVIII  of  1936.   So definition  under Act No.  26 of 1963 of estate is what is defined  through amending Tamil Nadu Act XVIII of 1936  only it  is further clarified through the definition clauses.  It

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is  significant that the definition in 1908 Act prior to its amendment  by Act XVIII of 1936 dealt with the grant of  the land  revenue  of  any village to a person  not  owning  the kudiwaram   thereof.   While  definition   after  the   said amendment  dealt with cases where any inam village has  been granted.   By  virtue of Section 3 of Act No.  26  of  1963, with  effect  from  the  date  of  notification,  all  other enactments applicable to inam estate, is deemed to have been repealed,  in respect of its application to the inam  estate and  the  entire  such inam estate  stands  transferred  and vested  in the State and all rights and interests created in such  inam estate before the notified date stands ceased and determined.   Thus,  the significance of  interpretation  of Explanation  1  (b)  of  Section 2 (11)  of  the  Act  gains importance.   We  have seen gradually how inam  estate  were brought  in within the definition of estate through  various enactments.   Initially it was divided into two, namely, (i) for  the whole village or more than one village and (ii) for the part of the village.  In spite of this some of the inams contested  not  to fall under either of the two,  for  which disputes  were raised in courts in large numbers which  lead to  bringing in the said two enactments in 1963 by giving it more precise meaning.  This is sought to be achieved through definitions in Section 2 of Act No.  26 of 1963 of existing inam  estate, i.e., inam estate and new inam estate and part  village inam estate to make the law and the  subject clear.   The existing inam estate are inam villages  which are  estate  as  recognised   through  the  aforesaid  Third Amendment  Act XVIII of 1936.  It is what is said to be  not covered  under  it  is brought in under the  said  1963  Act within its definition new inam estate to mean part village inam estate.  Thus inam estate under this Act included both the existing inam estate and new inam estate.  As new inam estate  referred to mean a part village inam estate or a Pudukkottai  inam  estate,  the part  village  inam  estate itself  is defined under sub-clause (11) of Section 2, which is subject to scrutiny in the present case.  This Act brings all  forms  of inam villages under its broad  definition  to include  all  preceding inams and also such inams  which  is said to have been excluded but yet excluded a small fraction out  of  the  part  village   inam  estate  by  virtue  of sub-clause  (b) of Explanation I of Section 2 (11).  So  the net conclusion is that now all inam estate are covered under this  Act,  and all preceding enactments in respect  of  the inam  estate is repealed except to the extent of  sub-clause (b)  of Explanation I.  This residual inam is carried to  be read  as  minor  inam under the aforesaid Act No.   30  of 1963.   So  what  is  excluded   under  sub-clause  (b)   of Explanation  1  would  be what would be  covered  under  the definition minor inam under sub-clause (9) of Section 2 of Act No.  30 of 1963.  So if appellants could be said to have been  excluded  from  sub-clause (b) of Explanation  I  they would be out of Act No.  26 of 1963 and to be in Act No.  30 of 1963.

     Returning to the present case, to be out of Act No.26, the area of grant to the appellants should not constitute to be  a part village estate and for this the appellants have to  prove  that  its grant was expressed only in  terms  of acreage  or  cawnies etc.  Unless this is  shown  exclusion from  the Act cannot be gained.  Looking back to the history of legislation of inam estates, the intention of legislature to  encompass all inam estates within its folds and if small exclusion is made, the exclusion has to be read keeping with the  intention of legislation.  The exclusion cannot be read

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by  ipsi  dipsi  but only through  clear  and  unimpeachable evidence.   Legislature  further  makes   it  clear  through sub-Section  (9) of Section 2 of Act no.  30 of 1963 that it is  only such area of grant which is not included within the purview  of Act No.  26 of 1963 will constitute to be minor inam under Act No.  30 of 1963.

     In  the  present case, the grant itself is not on  the record  which  would have been the primary evidence to  test appellant  case through the provision of sub-clause (11)  of Section  2.   The  parties   reenclined  to  the  collateral evidence  and  that  too  what is recorded in  the  case  of Karunbavira  Vanniar  (supra)  which is  also  of  Thanjavur estate  which also refers to the aforesaid two distinct sets of  areas, namely, Mela and Kizha.  The only question, as we have  said, which arises is, whether either on the  evidence led  and the collateral evidence gathered from the aforesaid decision,  could be it said, on the facts of this case  that the grant as an inam of the disputed area was expressed only in terms of acreages or cawnies or other local equivalent.

     Before  we  proceed  to  refer   to  the  judgment  in Karumbavira Vanniar (Supra), we herewith give short facts as recorded  in  the same judgment in respect of the estate  of Raja  of Tanjore.  In the year 1799 Raja of Tanjor ceded its entire  raj and reserved for himself the fort of Tanjor  and about  190  villages  which  formed   part  of  his  private property.   The  last of the Rajas died in 1855.   The  East India  Company then took over the aforesaid both the sets of properties.   The  heirs of Raja contested the right of  the Company  though  were  successful in the  Supreme  Court  at Madras,  but the Privy Council held that the validity of the confiscation could not be challenged in the Municipal Court. Thereafter  on  account of certain influential  persons  the British Government, as an act of grace granting 190 villages to  the Rajas widow and they were compendiously referred to as  Tanjore Palace Estate.  Thereafter a full Bench decision in  Sundaram Ayyar Vs.  Ramachandra Ayyar, ILR 40 Mad.  389, held  that this grant to the widow was a fresh grant and not a  restoration of what had been taken away from heirs of the last  Raja  by the East India Company.  The Full Bench  also held  the  question  whether  it was an inam  of  an  entire village  or  grant was of Melwaram or both melwaram and  the kudiwaram  has to be decided on the facts of each case.   In T.R.   Bhavani  Shankar Joshi, 1962 (2) SCR 421, this  Court while  dealing with similar Tanjore Palace estate held  that such a grant was a fresh grant.  It held:

     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 of the  Government and not because of any antecedent rights in the grantees.

     Some  submissions  were made on behalf of the  learned counsel  for  the parties, in respect of the onus of  proof. The submission was that the party seeking exclusion from the field  of  an Act by virtue of any provision for  gain,  the onus  lies  on such party to prove the same.   Reliance  was placed for the respondents in the case of Aluru Kondayya and Ors.   Vs.   Singaraju  Rama Rao & Ors., AIR  1966  SC  681. However,  this  was  a  case under 1908  Act  and  was  with reference  to suit.  The present case falls in terms of Rule 5  of the Tamil Nadu Inam (Supplementary) Rule, 1965,  under

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which  a  proceeding before the Settlement Officer is  of  a summary  nature and is to be governed as far as possible  by the  provisions of CPC.  We feel since the proceeding before the  Settlement  Officer  as  far as  the  present  case  is concerned  is of summary in nature we would not like to  put much  emphasis on the burden of proof though primary  burden still  remains  on the person seeking an exclusion from  the Act who has to prove it.  In the present case the appellants relied  on a portion of finding and evidence as recorded  in the  Karumbavira Vanniar (Supra).  The relevant portion  are quoted hereunder:

     This position is made clear from the Paimash accounts and the subsequent surveys.  Mela Thattimal, which till 1919 formed  part  of  Fajagiri village, covered as  we  said  an extent  of  276-21 acreas.  In the Paimash accounts  of  the year 1829 the area was designated by Nos.  1272 to 1302.  IN the  survey  of  the year 1886 the area was  represented  by S.No.   11 of Rajagiri.  - In the Land Register of the  year 1919  the area was given Nos.  45 to 49 in the newly  formed No.5  Arayapuram  Thattimal  Padugai.  Under the  Record  of Rights  Register, the corresponding numbers were S.   Nos.57 to 62.

     Now  coming to Kizha Thattimal, which covered an  area of  267-44 acres, they were represented Nos.  335 to 614  in the Paimash account of the Taraf village of Papanasam.

     We  fail to see how this portion helps the appellants. This  portion refers only to Paimash account and  subsequent survey  of  Mela,  it records till 1919 it  formed  part  of Rajagiri  village.  It no doubt records its extent to be  of 26.21  acres.   The  question is as to when  this  area  was measured,  that  is not recorded in the above passage.   The said  judgment does not reveal, whether the Paimash account and  subsequent surveys referred to therein were of 1862 the year  of grant.  Unless the reference of the document  first is  established  to be of the year of grant or refers  to  a fact  as  existed  in the year of grant and  that  documents refer  to  the  acreages,  no inference  in  favour  of  the appellants could be drawn.  The reference of paimash account or the subsequent survey referred does not indicate it to be of  the  year  in  question nor whether  it  refers  to  the acreage.   There  might have been surveys subsequent to  the grant  giving acreage but that would not help the appellants unless  there  is some document referred in the judgment  of the  year in question which fixes the acreage or a  document which  refers,  what was acreage of the area is question  in the  year of grant, would not help the appellant to  exclude the  appellants  from the purview of the Act No 26 of  1963. It   cannot  be  based  on  possibilities,   conjecture   or inferences  on  this feeble evidence.  The reference of  the year  1829, on which great emphasis was made, only refers to paimash account of the area of Mela Thattimal which is shown to  have  been designated by numbers, namely, 1272 to  1302. The  references  there  are of survey numbers  not  acreage. Similarly  is the position for Kizha Thattimal, the  acreage referred  there  is  again not with any paimash  account  or survey  for the relevant year in question.  On this basis no inference  even  remotely could be drawn that the  grant  or inam  of the disputed areas was only in terms of acreage  or cawnies  or of other local equivalent.  In this case we find the  Tribunal clearly recorded the finding that reference of

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acreage in the said judgment in relation with Mela and Kizha could only have been from the compilations subsequent to the period  of  grant.   This  is a finding  of  fact  which  is confirmed  by  the High Court.  This apart even we  examined the  same  and  find  there  is  no  evidence  which  merits interference  in favour of the appellants.  In T.R.  Bhavani Shankar  Joshi Vs.  Somasundara Moopanar (Supra) this  Court while  dealing with the Tanjor Palace estate to which we are concerned  also  was  faced  with  similar  situation  where evidence  was lacking an inference almost to the same effect was  drawn  on  the basis of meagre  evidence.   This  Court recorded:

     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 inam 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 evidence we do not think that the High Court was in error in holding that this land is a part of an inam village, and has been so ever since 1862.

     It is significant that the case of Karumbavira Vanniar (Supra)  records that in the year 1929 there were two areas, namely,  Mela  and Kizha the former formed part of  Rajagiri village  later  of Papanasam village.  The  question  raised there  and  which  was considered  was,  whether  Arayapuram Thattimal  Padugai was an inam estate within the meaning  of estate  under Section 3 (2)(d) of 1908 Act, further  whether it  was  of entire village or was it merely of two parts  of two  different  villages.  It is in this context, the  Court finally  held  the  grant was of two separate bits  of  land lying  in two different Taraft villages and that it was only in  the year 1919 that they were amalgamated to from what is now  known  as No.  5 Arayapuram Thattimal Padugai  village. Hence, the two different bits were held not an estate within the  meaning  of  Section  3 (2)(d) of the  1908  Act.   The finding  recorded thus is that the area Mela and Kizha  were parts  of  the village Rajagiri and Papanasam,  respectively and  once  they are part of the village it would be  covered within  the definition of Section 2 (11) of the Act No.   26 of  1963.   The Act No.  30 of 1963 clearly, while  defining the meaning minor inam under sub- Section (9) of Section 2 excludes  from its ambit by virtue of sub-clause (b) of this very  Section what is covered by sub-clause (9) of Section 2 of Act No.  26 of 1963, a new inam estate as defined under clause  (9)  of Section 2 of Act No.  26 of 1963 is a  part village  inam estate.  Since the aforesaid two bits of land is  admittedly a part of the village and part village  inam estate is defined under such clause (11) of Section 2, thus the area in question being part of two villages, it would be a new inam estate within the meaning of Section 2 (9) of Act No.   26 of 1963 and thus it cannot be exclused by virtue of clause  (b)  Explanation  I of Section 2 (11)  and  thus  it cannot be minor inam under Act No.  30 of 1963.

     Lastly  reliance for the appellants was placed in  the decision  of this Court in the P.  Munian & Ors.  Vs.  State of  Tamil Nadu & Anr., 1994 (1) SCC 643.  In this case,  the Court  held that the area in question would fall within  the ambit  of  sub-clause (b) of Explanation 1 to Section 11  of

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the  Act No.  26 of 1963.  This case will render no help  to the  appellants.   This  case records  there  is  concurrent finding  of fact that the grant was in terms of acreages  or cawnies.   Once there is finding of fact that the grant  was in  terms of acreages or cawnies then there is no difficulty to  hold such area to fall under clause (b) of Explanation 1 of Section 2 (11).

     Hence,  we come to an irresistible conclusion that the area  both  of  Mela and Kizha since formed a  part  of  the aforesaid  two  villages at the relevant time it would be  a part village inam estate and on the evidence on the record it could not be held that its grant was in terms of acreages or  cawnies  etc.   The  learned   senior  counsel  for  the respondents also made alternative submission that even if it could  be said that grant referred to the acreage also  even then  the  appellants cannot succeed as exclusion  from  the provision  of  the  Act  by  virtue  of  sub-clause  (b)  of Explanation  1 could only if the grant expresses it only in terms  of  acreages  or cawnies etc. In  the  present  case admittedly  the  description  is by a definite name  of  the area,  namely,  Mela Thattimal Padugai and  Kizha  Thattimal Padugai,  also  by the survey numbers.  Hence it  cannot  be said  that  the  grant  was only in  terms  of  acreages  or cawnies.  We find merit in the said submission also.

     For  the  aforesaid  reasons and also in view  of  the findings  recorded  by both the Tribunal and the High  Court concurrently  that the grant could not be said to be only in terms  of acreage.  Hence the notification issued under  Act No.   30  of  1963 was rightly held to be illegal.   On  the other  hand the Settlement Officer findings to the  contrary that  it was a grant in terms of acreage was without  proper appreciating  the  evidence  and was based on  no  evidence, hence, was rightly set aside.  We do not find it to be a fit case  to  interfere.   Accordingly,  both  the  appeals  are dismissed.   Costs  on  the  parties.