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PETITIONER: RANI RATNESH KUMARI

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT02/08/1978

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. FAZALALI, SYED MURTAZA KOSHAL, A.D.

CITATION:  1978 AIR 1450            1979 SCR  (1)  17  1978 SCC  (3) 520

ACT:      U.P. Zamindari  Abolition and  Land Reforms  Act,  1950 Sections  3,   3(12),  3(21)-Whether  the  taluqdar  was  an "intermediary" within  the meaning  of s.  3(12)-Whether the taluqdar’s  interest   in   the   Biswadari   villages   was extinguished even  after the  fixation of  the "malikana"  - Whether "malikana" is in the nature of pension.

HEADNOTE:      Manchhanna taluqa  or Mainpuri  Raj was  a part  of the Mainpuri district  in U.P.  The district originally belonged to the  Nawab Wazir  of Oudh  who ceded it to the East India Co. in  1801. Raja Dalel Singh the ancestor of the appellant was then  the owner  of the Manchhanna taluqa. A part of his estate was  taken over by the British Government. Settlement operations of the taluqa lands were carried out from time to time. As  it came to notice during the settlement operations in 1840  that there  were under-proprietors  or biswadars in 133 villages of the taluka, it was decided by the Government that while  133 villages  would be  settled  with  biswadars other villages  would remain  under the direct management of the  Raja   and  that  he  would  receive  an  allowance  or ’malikana" for the 133 villages at 18% of the assets leaving 60% of  the realisation  with the Government as land revenue and 32%  with biswadars  as their  share. The settlement was revised thereafter  and the  assets of  the  biswadars  were redistributed so as to give 55 percent of the realisation to the Government as revenue, 201 to the Raja as "malikana" and 244  to   the  biswadars  as  their  share.  Then  came  the settlement of  1872 when  Raja Ram  Pratap  Singh  tried  to reopen the question of direct engagement with the Government even in regard to the biswardari villages. It was ultimately agreed that  the Raja  would receive,  in  respect  of  each village, the  same amount  as before  by way of malikana and the settlement would be made directly with the biswadars who would bear  the burden of the arrangement. The Malikana thus worked  out  to  Rs.  22,502/-  per  year.  It  was  however stipulated that it would be reduced to 1/11 of the biswadari payment on  the death of Raja Ram Pratap Singh. An order was issued in  1873 by  which the  Raja  was  held  entitled  to malikana at  the rate  of 5  per cent  of the annual rental.

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Sheo Mangal  Singh who  was the last male descendant of Raja Dalel Singh  thus received  Rs. 8946-9-4 as annual rental of the 133  biswadari villages.  He died in 1938 and thereafter the malikana  was  received  by  his  widow  Rani  Prabhuraj Kumari. After her death in 1951 the malikana was paid to her daughter Rani  Ratnesh Kumari  the  present  appellant  upto March 1953.  Further payment  was  stopped  because  of  the vesting of  the estate in the State under the U.P. Zamindari Abolition  and  Land  Reforms  Act,  1950.  Efforts  of  the appellant for  its restoration did not bear fruit. She filed a writ petition in the Allahabad High Court on September 16, 1958 for  quashing the State Government’s order refusing the payment of  the malikana  and for a direction that it should be continued to be paid to her along with arrears. She based her claim  mainly on the ground that the malikana was in the nature of  a pension  or allowance  "in lieu  of the  taking over, forfeiture or acquisition" of the perpetual hereditary rights of  the Raja  in 133  villages and  was not  rent  or revenue 18 derived from  land She pleaded that the name of the Raja was never entered  in the  record of  rights of the 133 villages and that  she was  neither an  intermediary with  respect to those villages  nor those  villages were  included  in  he.. estate.  A  single  Judge  of  the  High  Court  upheld  the petitioner’s contentions  allowed the writ petition, quashed the orders  of the State Government against her and directed the payment  of the  arrears of  the malikana as well as its future payment.  The Division  Bench set  aside the impugned judgment  of   the  single  Judge  and  dismissed  the  writ petition.      Dismissing the appeal by certificate this Court ^      HELD: (1)  Manchhanna was  an estate  in Uttar  Pradesh within the meaning of s. 3(8) of the Act. [19F, 22B]      (2) Section  3(12) of  the Act  defines the  expression "intermediary"  with   reference  to   any   estate   as   a "proprietor,  under  proprietor,  sub-proprietor,  thekedar, permanent lessee  in Avadh  and permanent  tenure-holder, of such  estate   or  part  thereof."  The  appellant  was  the proprietor of  133 villages  also, as they were her villages even though  her interest  in them was limited on account of the settlements  with the under-proprietors or biswadars. In other words,  she had  an interest in the biswadari villages and they  undoubtedly formed  part  of  her  estate  as  its proprietor. [22C-D, 23F-G]      (3) The  appellant’s contention  that her  interest  in these villages  was extinguished  has not been substantiated by the  evidence on record and cannot be accepted. Copies of the "Khewats"  of several  years placed  on record including the quadrennial ’khewat’ for the years immediately preceding the date of vesting under the Act in respect of the ’mahals’ of 133  villages, showed  that the  name of   Rani Prabhuraj Kumari mother  of the  appellant was  recorded on  the first page in  column 6  meant for  the entry  of the  name of the proprietor and  the names of the inferior proprietors paying land revenue  were recorded on the subsequent pages. [23E-F- G]      (4)  The  fact  that  the  payment  was  made  as  "haq taluqdari’ by  virtue of  the superior  proprietary right of the Raja  and it was varied from settlement to settlement as a consequence  of the  variation in  the amount  of the land revenue and  the assets  of the  villages,  shows  that  the taluqdar’s  interest  in  the  land  of  the  133  biswadari villages was not extinguished even after the fixation of the

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"malikana" which  was really  in the  nature of an allowance for the  purpose of  excluding him from their management and their settlement  with the under proprietors. There was thus a direct  connection between  the allowance and the right in land. [23C-D, 24A]      (5) It is true that an interest in land or land revenue will not  be created  merely by measuring the quantum of the allowance or  by equating  it with a portion of his share in the net  revenue of  a part  of the  land, but  this was not really so  in the present case because the allowance was not determined once  for all  and was  not dissociated  from the revenue or  the assets of the land. At any rate the malikana was allowed on account of the Raja’s interest in the land or its revenue  and was  therefore a  right or privilege in the biswadari lands. [24B-D]      (6) As  the Raja was an intermediary within the meaning of section  3(12) of the Act, by virtue of Sec 6 of the Act, his right, title and interest in the 19 biswadari land  ceased  and  vested  in  the  State  on  the publication of  the notification under Sec. 4 of the Act. He could therefore  lay a  claim only for compensation under s. 27. [24D-E]      In case of State of U.P. v. Kanwar Sri Trivikram Narain Singh, [1962]  3 SCR  213; the  settlement  was  by  way  of "pension" which  was neither  land  nor an estate within the meaning of  the Act. The pension was in the nature of a mere compensation payable  in lieu  of the  ancestral rights over the estates comprised in the pargana and was in fact granted as a consideration for the settlement of the claim which was litigated in  a civil court relating to the land and also in consideration of  the extinction of the right in land of the land  revenue.   It  was  therefore  held  that  the  person receiving an  allowance from  the State  in consideration of extinction of  a right in the land or land revenue was not a "proprietor" within the meaning of the Act- the more so when it was  found that  his name  had not  been entered  in  the revenue record under clauses (a) to (d) of s. 32 of the Land Revenue Act.  In that  case there  was no  direct connection between the  right or  privilege which  was claimed  and the land in the estate or its revenue. [24F-H, 25A]      State of  U.P. v.  Kanwar Sri  Trivikram  Narain  singh [1962] 3 SCR 213 distinguished.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1424 of 1968.      From  the  Judgment  and  Order  dated  6-9-66  of  the Allahabad High Court in Special Appeal No. 130 of 1960.      Mrs. Rani  Chhabra and  S. Bagga  (Mrs.) and Meera Bali for the Appellant.      G. N. Dikshit and O. P. Rana for the Respondents.      The Judgment of the Court was delivered by      SHINGHAL, J.  This appeal  by certificate  is  directed against the  judgment of  the Allahabad High Court dated May 6, 1966,  by which  the special  appeal filed by the present respondents was allowed and the judgment of a learned Single Judge of that Court dated January 2, 1964, allowing the writ petition of  the present  appellant Rani  Ratnesh Kumari was set aside.      It is  not in  controversy that  Manchhanna taluqa,  or Mainpuri Raj,  was a  part of the Mainpuri district in Uttar Pradesh. The district originally belonged to the Nawab Wazir

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of Oudh,  who ceded  it to  the East  India Company in 1801. Raja Dalel  Singh was  then  the  owner  of  the  Manchhanna taluqa. A  part of  his estate was taken over by the British Government. Raja Dalel Singh died in 1829, and was succeeded by Raja  Ganga Singh.  Settlement operations  of the  taluqa lands were  carried out from time to time. It came to notice during the  settlement operations  of 1840  that there  were under proprietors  or ’biswadars’  in 133  villages  of  the taluqa. It  was decided by the government that while the 133 biswadari villages would be 20 settled with  biswadars, the  other  villages  would  remain under the direct engagement of the Raja and he would receive an allowance  or "malikana"  for the  133 villages at 18 per cent of  the assets  leaving 60  per cent of the realisation with the government as land revenue and 32 per cent with the biswadars  as   their  share.  The  settlement  was  revised thereafter  and   the   assets   of   the   biswadars   were redistributed so  as to  give 55 per cent of the realization to the  government  as  revenue,  20  1/4  to  the  Raja  as ’malikana’ and  24 3/4 to the biswadars as their share. Then came the settlement of 1872 when Raja Ram Pratap Singh tried to reopen  the question  of his  direct engagement  with the government even  in regard to the biswadari villages. It was ultimately agreed that the Raja would receive, in respect of each village, the same amount as before by way of ’malikana’ and that  the settlement  would be  made directly  with  the biswadars who  would bear the burden of the arrangement. The ’malikana’ thus  worked out to Rs. 22,502/- per year. It was however stipulated  that it  would be reduced to 1/11 of the biswadari payment  on the death of Raja Ram Pratap Singh. An order was issued in 1873 by which the Raja was held entitled to ’malikana’  at the  rate of  5 per  cent  of  the  annual rental. It  was reaffirmed  during the settlement of 1904-19 that the  estate would  get 5 per cent of the assets or 1/10 of the  land revenue  assessed in  the  133  villages.  That arrangement continued upto the settlement of 1940. Raja Sheo Mangal Singh, who was the last male descendant of Raja Dalel Singh, thus  received an  annual payment  of Rs. 8946/9/4 as annual rental of the 133 biswadari villages. He died in 1938 and thereafter the ’malikana’ was received by his widow Rani Praburaj Kumari.  She died  in 1951,  and ten the ’malikana’ was paid  to her  daughter Rani  Ratnesh Kumari, the present appellant  upto   March  1953.   The  payment   was  stopped thereafter because of the vesting of the estate in the State under the  provisions of  the U.  P. Zamindari Abolition and Land Reforms  Act, 1950, hereinafter referred to as the Act. As the  efforts of  Rani Ratnesh  Kumari for its restoration did not  bear fruit,  she  filed  a  writ  petition  in  the Allahabad High  Court on September 16, 1958 for quashing the State  Government’s   order  refusing  the  payment  of  the ’malikana’ and for a direction that it should continue to be paid to  her along  with the  arrears. She  based her  claim mainly on  the ground  that the ’malikana’ was in the nature of a  pension or  allowance "in  lieu of  the  taking  over, forfeiture  or  acquisition"  of  the  perpetual  hereditary rights of  the Raja in the 133 villages and was "in no sense of the term rent or revenue derived from land or any benefit arising out of land." She pleaded that the name of the Rajas was never  entered in  the  record  of  rights  of  the  133 villages and that she was "neither intermediary with respect to 21 (those) villages  nor (those)  villages are  included in the estate as  defined in  the  Zamindari  Abolition  Act".  So,

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according to  her, the  ’malikana’ being a pension could not have vested  in the  State on  the issue of the notification under section  4 of  the Act  and was  not determined  under section 6(b).      The State  traversed  the  petitioner’s  claim  on  the ground that  the ’malikana’  was paid  to the  Raja  in  his capacity as  the superior  proprietor of the 133 villages in question, and  that it  was really in the nature of "a share in  the  profits  of  a  ’mahal’  allowed  to  the  superior proprietor at  the various settlements." It was pleaded that even though  the Raja  was not responsible or liable for the payment of  the land  revenue as the settlement was with the inferior proprietors  or  ’biswadars’,  the  ’malikana’  was directly connected  with the  land revenue and the assets of the land  of the  133 villages  of which  the Raja  was  the superior proprietor. It was also pleaded that the ’malikana’ represented "a  share of the profits of each ’mahal’ allowed to the superior proprietor in accordance with section 19 (1) of Regulation  VII of  1822, section  56 of the Land Revenue Act XIX  of 1873,  and sections  75 and  77 of the U.P. Land Revenue Act,  1901." It  was pointed  out in the quadrennial ’khewat’ for  the years  immediately preceding  the date  of vesting of  the estate  under the  Act,  the  name  of  Rani Prabhuraj Kumari  was recorded  as  the  proprietor  of  the ’mahals’ of  the 133  villages and the names of the inferior proprietors  were   recorded  in   the  subsequent  columns. Reference was  made to  similar ’khewat’  entries of earlier periods and  it was  pleaded that  the 133  villages were an estate of  the petitioner  as defined in the Act and she was an "intermediary" in her capacity as the superior proprietor of the  ’mahals’ on  the date immediately preceding the date of vesting  of the estate under the Act. In other words, the State Government took the plea that the ’malikana’ allowance represented a  share of the profits of each ’mahal’ and that the payment  of the  ’malikana’ was  stopped when the estate vested in  the State under the provisions of the Act. It was contended  that   the  writ   petitioner  was   entitled  to compensation under  the provisions of the Act but not to the ’malikana’  allowance   which  could  not  be  equated  with pension.      A  Single   Judge  of   the  High   Court  upheld   the petitioner’s contentions  and allowed  the writ petition. He quashed the  orders of  the State Government against her and directed the  payment of  the arrears  of the  ’malikana’ as well as  its future  payment. As  has been stated, a special appeal was  taken against that judgment and has been allowed by the  impugned judgment  of the  High Court  dated May  6, 1966. 22      Thus the  point  for  consideration  in  this  case  is whether the  appellant’s claim to the ’malikana’ has rightly been disallowed  under the  Act which  provides, mainly, for the   abolition    of   the   zamindari   system   involving intermediaries between  the tiller of the soil and the State and for the acquisition of their rights, title and interest, and to  reform the  law relating  to land  tenure consequent upon  such   abolition  and   acquisition.  It   is  not  in controversy that  the Manchhanna taluqa was an estate within the meaning  of section 3(8) of the Act, and the controversy centres around  the question  whether the  appellant was  an intermediary in  respect  of  the  aforesaid  133  biswadari villages for  which she used to receive the ’malikana’ until her  estate  vested  in  the  State  on  the  issue  of  the notification under section 4.      The  expression  "intermediary"  has  been  defined  in

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section 3(12) of the Act as follows,- "(12)     "intermediary" with  reference to any estate means      a   proprietor,    under-proprietor,    sub-proprietor,      thakedar,  permanent  lessee  in  Avadh  and  permanent      tenure-holder of such estate or part thereof."      "Estate" has  been defined  in section  3(8) of the Act but.  as  has  been  stated,  it  is  not  in  dispute  that Manchhanna   was  one  such  state  in  Uttar  Pradesh.  The petitioner categorically asserted in paragraph 1 of the writ petition that her father Sheo Mangal Singh was the last male descendant of  the family  of Raja  Ganga Singh, who was the taluqadar of  Manchhanna  taluqa,  and  that  fact  was  not controverted in  the  respondents’  reply.  It  was  further pleaded in  paragraph 2  of the  writ petition that the Raja had a vast estate spreading over 18 parganas in the Mainpuri district,  and  the  respondents  did  not  controvert  that assertion also.  It has therefore to be examined whether the Raja was  an intermediary  in respect  of the  133 biswadari villages. In  other words, it has to be examined whether the appellant was  a "proprietor" of those biswadari villages so as to  fall within  the definition of "intermediary". Clause (21) of  section 3  defines  a  "proprietor.’  to  mean  "as respects an  estate"?  a  person  "owning"  the  estate  and includes  the   heirs  and   successors-in-interest  of  the proprietor. But even though the appellant was the proprietor of the other villages of her estate, the question is whether she could  be  said  to  be  the  ’proprietor"  of  the  133 biswadari villages ?      In order  to arrive  at a  decision it  is necessary to examine whether the Rajas of Manchhanna taluqa could be said to have  an interest  in  the  land  of  the  133  biswadari villages  even  after  the  fixation  of  the  allowance  of ’malikana’ under the settlements to which reference has 23 been made  above. It has been admitted in paragraph 3 of the writ petition  that by  the settlement  of 1840 the Raja was allowed an  allowance (malikana)  at the rate of 18 per cent of the assets or 22 1/2 per cent of the amount realised from the biswadars.  Mention in  that connection has been made of the division  of the "assets of the Raja’s estate in respect of the malikana villages" leaving him 18 per cent thereof as his ’malikana’.  Then it has been stated in paragraph 6 that the Raja  was to  receive the  same "biswadari allowance" as before "from each village", and that the settlement was made directly with the biswadars who were to "bear the burden" of that concession.  We have made a reference to the subsequent developments in  that respect leading to the fixation of the ’malikana’ at  5 per  cent of  the assets (annual rental) or 1/10 of  the land revenue assessed for the 133 villages. The respondents have  stated in their reply that the payment was made  as   "haq  talukadari"   by  virtue  of  the  superior proprietary right  or the  Raja and  that it was varied from settlement to  settlement as  a consequence of the variation in the  amount of  the land  revenue and  the assets  of the villages. This  shows that  the taluqadar’s  interest in the land of the 133 biswadari villages was not extinguished even after the fixation of the ’malikana’, which was rally in the nature of an allowance for the purpose of excluding him from their  management  and  their  settlement  with  the  under- proprietors.      Then there is the further fact that, as has been stated in paragraph  13(a) of  the respondents’ reply affidavit, in the quadrennial ’khewat’ for the years immediately preceding the date  of vesting  under  the  Act,  in  respect  of  the ’mahals’ of  the 133  villages, the  name of  Rani Prabhuraj

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Kumari, mother  of the  appellant, was recorded on the first page in  column 6  meant for  the entry  of the  name of the proprietor, and the names of the inferior proprietors paying land revenue  were recorded  on the subsequent pages. Copies of the  ’khewats’ of  several years  have been placed on the record. The  appellant was  therefore the  proprietor of the 133 villages also, as they were her villages even though her interest in  them was  limited on account of the settlements with the under-proprietors or biswadars. In other words, she had  an   interest  in  the  biswadari  villages,  and  they undoubtedly formed part of her estate as its proprietor. The appellant’s contention  that her  interest in those villages was extinguished  has not been substantiated by the evidence on record and cannot be accepted.      This aspect  of the controversy can in fact be examined with  reference   to  the  ancillary  question  whether  the allowance or  ’malikana’ was  allowed on  account of  Raja’s right or privilege in the land of the 24 133 villages or its revenue. In other words, the question is whether there  was a  direct connection  between the two. It will be  recalled that  the petitioner  has herself admitted that the assets of the  Raja’s estate in those villages were divided so  as to  leave him a sizable fraction thereof, and that the  Raja’s ’malikana’ allowance came from each village and the  biswadars had  to bear that burden. The respondents have  also  stated  in  their  counter  affidavit  that  the ’malikana’ was  varied from  settlement to  settlement as  a consequence of the variation in the land revenue and that it was always  by way  of a share of the profits of ’mahal’. At any rate,  the ’malikana’  was allowed  on  account  of  the Raja’s interest in the land or its revenue and was therefore a right or privilege in the biswadari lands. It is true that an interest  in land  or land  revenue will  not be  created merely by  measuring the  quantum of  the allowance  or by a equating it  with a  portion of his share in the net revenue of a  part of  the land,  but this  was not really so in the present case  because the  allowance was not determined once for all  and was  not dissociated  from the  revenue or  the assets of the land.      It follows  that the  Raja was an "intermediary" within the meaning  of section  3(12) of  the Act, and by virtue of section 6  of the  Act his  right, title and interest in the biswadari land  ceased  and  vested  in  the  State  on  the publication of  the notification under section 4 of the Act. He could  therefore  lay  a  claim  for  compensation  under section 27,  and the High Court cannot be said to have erred in rejecting his claim to ’malikana’ as a pensionary benefit outside the purview of the Act      We have  gone through  the decision  in State  of Uttar Pradesh v.  Kunwar Sri  Trivikram Narain Singh(1), but there the settlement  was by  way of a "pension" which was neither land nor  an estate  within the  meaning  of  the  Act.  The pension was  in the nature of a mere compensation payable in lieu of  the ancestral  rights over the estates comprised in the pargana.  It was  in fact granted as a consideration for the settlement  of the  claim which was litigated in a civil court relating to that land and was granted in consideration of the  extinction of the right in land or the land revenue. That was  why it  was held  that  the  person  receiving  an allowance from the State in consideration of extinction of a right in  the land  or land  revenue was  not  a  proprietor within the  meaning of  the Act  - the  more so  when it was found that  his name  had not  been entered  in the  revenue record under clauses

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(1) [1962] 3 S.C.R, 213. 25 (a) to  (d) of section 32 of the Land Revenue Act. There was thus no  direct connection  between the  right or  privilege which was claimed in that case and the land in the estate or its revenue. The appellant cannot therefore take any benefit out of  that judgment,  and the  High  Court  was  right  in distinguishing it from the facts of the present case.      As we  find no  merit in  this appeal,  it is dismissed with one set of costs to the respondents. S.R.                                       Appeal dismissed. 3-520SCI/78 26