http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: T.   R. BHAVANI SHANKAR JOSHI

       Vs.

RESPONDENT: SOMASUNDARA MOOPANAR

DATE OF JUDGMENT: 24/04/1962

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, S.K. SHAH, J.C.

CITATION:  1965 AIR  316            1964 SCR  (2) 421  CITATOR INFO :  R          1968 SC1005  (6)

ACT: Act of State-Properties of Late Ruler seized by  Government- Subsequent  restoration  to heirs of  private  properties-If amount  to a grant-Nature of the  property-Whether  "estate" Occupancy  rights-Madras  Estates Land Act, 1908 (Mad  1  of 1908), as amended by Madras Act 18 of 1936, s. 55.

HEADNOTE: The  property  in  suit belonged to what was  known  as  the Tanjore  Palace Estate.  The appellant became owner  of  the property  in 1936 by virtue of a sale on foot of a  mortgage decree  obtained  by  his father in a  suit  of  1926.   The respondent bad been in possession of the property by  virtue of a lease deed dated July 30, 1932, and on August 13, 1936, he  got  a  lease of the property for  two  years  from  the appellant.   Under  the Madras Estates Land  Act,  1908,  as amended by the Third Amendment Act of 1936, occupancy rights vested  in a person who was in direct and actual  possession of  the Land on June 30, 1934.  The respondent instituted  a suit  against  the  appellant for the grant of  a  patta  in occupancy  right on payment of a fair rent.   The  appellant pleaded  that the provisions of the Act were not  applicable to  the property in suit on the ground, inter alia, that  as it  was a part of the Tanjore Palace Estate it could not  be considered to be an estate within the meaning of the term in the  Act.  The history of the Tanjore Palace  Estate  showed that  after  the Rajah of Tanjore died in 1855,  leaving  no male  heirs,  the  Government  seized  all  his  properties. Subsequently,  in 1962 the private properties of  the  Rajah were "relinquished" and "restored" by the Government to  the widows of the Rajah.  The appellants contention was that the manner in which the properties reverted to the widows of the Rajah in 1862 after an act of State showed that it was not a case of a fresh grant by the Government but a restoration of the  status  quo ante, so that the widows enjoyed  both  the warams, as before. Held,  that  the  act of State having  made  no  distinction between  the private and public properties of the Rajah  the private  properties  were lost by that of State  leaving  no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

right outstanding in the existing claimants.  The Government order was thus a fresh grant due to the bounty 422 of  the Government and not because of any antecedent  rights in the grantees. The  words  "relinquished" or "restored" in  the  Government order  did  not have the,legal effect of reviving  any  such right because no rights survived the act of State.  The root of title of the grantees was the Government order. The Secretary of State in Council of India v. Kamachee  Roys Saheba,  (1859)  7  M. I. A. 476, Jijoyamba  Bayi  Saiba  v. Kamkashi Bayi Saiba, (1868) 3 M. H. C. B 424, Srimant  Chota Raja Saheb Moyitai v. Sundaram Ayyar, (1936) L. R. 63 I.  A. 224  and Chidambaram Chettiar v. Ramaswamy Odayar, [1957]  1 M. L. J. 72, relied on.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 54 of 1952. Appeal from the judgment and decree dated March 19, 1953, of the Madras High Court in S. A. No. 1513 of 1948. F.   N. Rajagopala Sastri, M. I. Khowaja and B. K. B   . Naidu, for the appellant. M.   C.Setalvad, Attorney-General of India, A.   V.   Viswanatha  Sastri,  R.  Gopalakrishnan.,  J.   B. Dadachanji,  O.  C.  Mathur and  Ravinder  Narain,  for  the respondent. 1962.  April 24.  The Judgment of the Court was delivered by HIDAYATULLAH,  J.-In  this  appeal  on  a  certificate,  the appellant  was the original Defendant No. 1 in a suit  filed by  the  respondent under s. 55 of the Madras  Estates  Land Act,  1908, seeking a direction for the grant of a patta  to him in regard to the suit land.  The suit was decreed by the Revenue  Divisional Officer, Kumbakonam, who fixed the  rent at  the rate of Rs. 1-8-0 per mah, the land being  about  64 acres or 192 mahs. This  land  originally belonged to what. was  known  as  the Tanjore Palace Estate, and by a suit 423 of 1919, it fell to the share of Ry.  Sivaji Rajah Saheb  of Tanjore  (Palace).   It  came  into’  ’the  possession   and ownership of the appellant by virtue of a sale on foot of ’a mortgage  decree obtained by  his father in a suit of  1926. The appellant obtained :possession in 1963.  While the  suit was  pending,  the property was in the  possession  of  four minors  through their maternal uncle, who was  appointed  as their  guardian  by the District Court,  West  Tanjore.   In 1932,  the  respondent  took  the  suit  property  on  lease from,the  guardian for 3 years, by a lease deed  dated  July 30,  1932.   Under this lease, the  respondent  remained  in possession  and  enjoyment of this property  till  June  30, 1935,   cultivating   it,   as-he   alleged   under   pannai cultivation.   During the execution proceedings, however,  a receiver  was appointed, and on May 12, 1935,  the  receiver granted  a  lease for 3 year from July 1, 1935.   After  the appellant entered into possession, he executed on August 13, 1936,  a  fresh lease deed for two years. (faslis  1346  and 1347)  and till the suit, according to the  respondents,  he continued  in uninterrupted possession and enjoyment of  the property.  The claim was made under the Madras Estates  Land Act, 1908, as -a ’Mended by the Third Amendment Act of 1936, under ’which occupancy rights vested in a person who was  in direct  and actual possession of the land on June 30,  1934. The  respondent,  therefore, claimed the protection  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

provisions  of the Madras Estates Land Act, and thus  to  be entitled to a ’patta in occupancy right on payment of a fair rent suggesting Rs. 1-8-0 per mah as the fair rent. The  appellant contended that the land in question known  as Pattiswaram  Thattimal  Padugai was included  in  a  revenue village, Thenam Padugai Thattimal, and was neither an entire village  nor an estate or part of an estate,.and  that  thus the provisions of the Madras, Estates Land Act did not 424 apply  to  it, because the land in question  was  not  ryoti land.   It  was  also  averred by  the  appellant  that  the respondent was a mere farmer of revenue, that is to say,  an intermediate  lessee, who was not cultivating the suit  land himself  or  in  pannai or with the help  of  hired  labour. Various other pleas were raised, but to them no reference is necessary, because the arguments in this Court were  limited to the consideration of the findings on Issues 1 to 3 framed in the original suit.  Those Issues were : ,(1) Is the village wherein the suit properties are situated an inam within the meaning of Act XVIII of 1936 ? Was it  an Estate prior to the enactment of Act XVIII of 1936 or did it become an Estate under the provisions of the Act ? (2)  Is the Plaintiff a mere lessee or farmer of rent or the actual cultivator of the suit lands ? (3)  Is  the Plaintiff a ryot entitled to  occupancy  rights under  Act  XVIII  of 1936 for the reliefs  claimed  in  the plaint ?" The  suit,  as already stated, was decreed  by  the  Revenue Divisional  Officer.  On appeal, the District Judge of  West Tanjore, dismissed the appeal, but modified the rent to  Rs. 4  /-per mah as the proper and equitable rate of  rent.   On further appeal to the High Court, the judgment and decree of the District Judge were confirmed with the modification that the  rent was determined at Rs. 7/-per mah, and Rs.  1,350/- were  fixed  as a lump sum.  There  was  a  cross-objection, which was also dismissed. The question in this appeal is whether the property in suit, being a part of the Tanjore Palace Estate, can be considered to be an ’lest the meaning of the term in the Madras Estates  425 Land Act.  That it would be so if it was part of an inam was counsel for the appellant.  He, however, contended that  the manner  in which the property reverted to the widows of  the Rajah  in 1862 after an act of State, did not show that  the estate  was freshly granted, but was restored to the  widows who  enjoyed both the warams, in the same way as the  warams wers  enjoyed  before.  Much of the arguments in  the  case, therefore,  was directed to establishing that in 1862  there was  a  "restoration" of the status quo ante rather  than  a fresh  grant by the British Government.  It  is,  therefore, necessary to recount, in brief, the facts leading up to  the Government  Order  No. 336 of 1862.  These facts  have  been given  in  considerable detail by the Privy Council  in  The Secretary  of  State in Council of India  v.  Kamachee  Boye Sahaba (1), and they are also very well-known.  The Rajah of Tanjore  died  in  October, 1855, leaving no  male  heir  to succeed  him.  He left behind him a large number  of  widows and ’two daughters.  After his death, Mr. Forbes who was the Commissioner,  under  authority of  Government,  seized  the properties  of  the Rajah, and took them under  his  charge. He,  however,  reported to the Government that  the  private properties  of the Rajah and others would be returned  after an  enquiry  into any claims that might be  submitted.   The senior widow, Kamachee Boye Sahaba, thereupon, filed a  Bill on  the  Enquiry Side of the Supreme Court  of  Madras,  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

obtained a decree that the seizure of the private properties was  wrong.  On appeal by the Secretary of State in  Council of India, the Privy Council reversed the decree, and ordered the  dismissal  of the Bill.  Thereafter,.  a  memorial  was submitted to the Queen and Mr. Norton Senior went to England to interview the Government.  As a result of his efforts, in 1862 the (1)  k 1 @59) 7 M.I.A. 476.. 426 private  properties were ,’relinquished" and  "restored"  by the Government Order No. 336 of 1862.      Numerous  cases were decided in the Madras High  Court, some  of which also went before the Privy  Council,  dealing with  diverse  items  of the  Tanjore  Palace  Estate.   The argument  which  is raised in this appeal,  viz.,  that  the Government  Order was not a fresh grant but only led to  the restoration  of  the properties is not a new  one,  and  was raised in those cases.  In Jijoyiamba Bayi Saiba v. Kamakshi Bayi  Saiba  (1), the High Court held  that  the  Government Order  was  a grant of grace and favour to persons  who  had forfeited all claims to the personal properties of the Rajah by the act of State and was not a revival of any  antecedent rights  which they might have had but for the act of  State. A  similar view of the grant was taken also in a Full  Bench case  in  Sundaram Iyer v. Ramachandra Iyer (2).   The  Fall Bench  case  was concerned only with the  Mokhasa  Ullikadai village,  and the question later arose whether the  decision should be limited to that village in this estate or extended to  others.  Subsequently, in Abdul Rahim v. Swaminatha  (3) it  was  held  that  the  decision  applied  also  to  other villages, which must be regarded as part of the Inam Estate, which  was granted by the Government Order.  Earlier  still, the  decision of the Full Bench was relied upon  in  several cases,  to which reference has been made in Abdul  Rahim  v. Swaminatha  (3)  as  also in a recent case  decided  by  the Madras  High Court and reported in Chidambaram  Chettiar  v, Ramaswamy  Odayar (4).  In the last mentioned case is to  be found a list of most of the decisions under which the  Order was interpreted as a fresh grant.  Indeed, the Privy Council in  Srimant  Chota Raja Saheb Mohitai v.  Sundaram  Ayyar(5) referred to the Government Order as (1) (1868) 3 M.H.C.R 424.  (2) ( 1917) I.L.R 40 Mad. 389. (3) I.L.R. [1955] Mad 744.  (4) [1957] 1 M.L.J. 72. (5) (1936) L.R. 63 I.A.  224.  427 grant  and to the recipients of the property in 1862 as  the grantees.   There  are, however, cases in which  a  contrary note  was  struck.   In Maharajah of  Kolhapur  v.  Sundaram Iyer,(1) Spencer, J.C. J., appeared to doubt the decision of Scotland,  C. J., in Jijoyiamba Bayi Saiba v. Kamakshi  Bayi Saiba  (2  ) that there was a grant of grace and  favour  in 1862.   A similar discordant note was struck in Sundaram  v. Deva  Sankara (3) ; but these cases have  been  subsequently explained  or not accepted on this point.  In  the  judgment under appeal, the Divisional Bench has also referred to this consistent  view  held about the Government  Order,  and  it must,  therefore, be assumed that for nearly 100  years  the Madras  High  Court  has  held  the  view  which  was  first expressed  by  Scotland, C.J. Apart from the  fact  that  it would not be open to us to disturb titles by reversing  this long line of decisions, we are of opinion that the arguments that have now been raised are not sound. It  is contended that the act of State begun in 1856 by  Mr. Forbes was not really over till 1862, and during the period, enquiries were made for the return of the private properties

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

of  the Rajah, and thus the act of State did not  extinguish the original title, but it was restored without there  being a fresh grant.  The Government Order of 1862 was read to  us to  show  that  it  was  not worded as  a  grant  but  as  a communique  by which the decision to relinquish and  restore the properties was conveyed.  It is also argued that in  the despatches, Mr. Forbes had himself said that enquiries would be  made  about the private properties of the  Rajah,  which would  be scrupulously returned, and thus even at that  time there was no intention to complete, so to ’Speak, the act of State against the private properties. (1) (1924)  I.L.R. 49 Mad. 1.  (2) (1868) 3 M.H.C.R 424. (3)  A.T.R. 1918 Mad. 428. 428 The first question to decide is whether the act of State was directed  against  only the raj properties  or  against  the private properties as well.  Here, the decision of the Privy Council  in  Kamachee,  Boye Sahaba’s case  (1)  repels  the argument of the appellant completely.  Kamachee Boye  Sahaba filed  a Bill for the return of the private properties,  and the  Privy Council held that as the seizure was made by  the British  Government acting as a Sovereign power through  its delegate,  the East India Company, it was an act  of  State, into  the  propriety of which the municipal  courts  had  no jurisdiction  to enquire.  It pointed out that  the  enquiry which  was  to  be made was not in elation  to  the  private properties of the Rajah but in connection with certain other properties  which, though belonging to third  parties,  were held by the Rajah.  It observed, however, in respect of  all the properties that were seized., as follows :               "......  if  the Company, in the  exercise  of               their  Sovereign  power, have thought  fit  to               seize  the whole property of the  late  Rajah,               private  as well as public, does  that  circum               stance  give any jurisdiction over their  acts               to the Court at Madras ?" and  it  answered that no difference was  made  between  the private and public properties, and the Madras Supreme  Court had  no  jurisdiction over the seizure of either.   It  also mentioned  that the letter of Mr. Forbes, that  the  private properties of the Rajah would be returned after an  enquiry, was  wrongly construed.  It pointed out (and we think  quite correctly)  that the distinction made in the letter  between private and public properties applied not to the  properties of  the Rajah but to such properties which might  have  been seized by the officer as in the possession of, or apparently belonging the Rajah, while, in fault they belonged (1)  (1859) 7 M.I.A. 476. 429 to  or were subject to the claims of other persons.  It  was these  claims which were to be investigated, and  the  Privy Council observed :               "All  claims  which might be advanced  to  any               part  of the property seized, by  institutions               or   individuals   were   to   be    carefully               investigated,  and all to which a claim  might               be  substantiated  would be  restored  to  the               owner." It then concluded that whatever the meaning of the letter it showed  that  the  Government  intended  to  seize  all  the property  which  actually  was  seized,  whether  public  or private, and the seizure as a whole was an act of State. The  act of State having thus materialised against  all  the properties, public or private, of the Rajah, no title  could be said to have remained outstanding in any one.  The  Privy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

Council  pointed out also that the heirs such as there  were could only look to the bounty of the British Government  and had no claim or right in law.  In this state of affairs,  it is  impossible to construe the Government Order as  anything but a fresh grant.  It is stated that it is not worded as  a grant,  because  it  uses,  the  words  "relinquished"   and "restored"  and  also  it  does not set  out  any  terms  or conditions on which ,the property was to be held ; nor  does it give a list of the properties so granted.  As regards the list of properties, it has always been felt that there  must have  been  one,  though it does not  appear  to  have  been produced  in a court of law.  If the properties were  sorted out, it is inconceivable that the Government Order would not specify also the properties to be returned, and such a  list must   have  accompanied  it.   The  document  in   question creates,,  its  own conditions, and indicates  the  line  of succession.  The root of title of the family was thus the 430 Government Order, and it has been so observed in Chidambaram Chettiar v. Ramaswamy Odayar (1). The  next question raised is that the  documentary  evidence produced  in  the  case does not disclose the  grant  of  an entire  inam village.  Reference in this connection is  made to  the  Government  Order,  in which  in  addition  to  the villages there is a mention of certain lands.  It is  argued that  the suit land is neither a Mokhasa village nor a  part of  one, that it is one of three blocks which are  separated from one another by rivers and distances, that there are  no residential  houses in any of the three blocks,  and  lastly that the name of the village has changed from time to  time, as  is  evidenced by the muchalikas of 1875, 1882  and  1904 (Exs.   D-8, D-9 and D-10).  The case of the respondent  was that  the Mokhasa village, Pattiswaram Padugai, was a  whole inam  village,  and it was governed by Madras  Estates  Land Act,  1908,  that the respondent was in  direct  and  actual possession  on  June  30, 1934,  and  therefore  within  the protection of that Act.  The case of the appellant was  that Pattiswaram  Padugai  was not a whole inam but  village  was included in Thenam Padugai which was a revenue village,  and since Pattiswaram Padugai was not an entire village, it  was neither  an estate nor a part of an estate.  All  the  three Courts have held in favour of the respondent.  The  question is  whether  the  decision proceeds  on  no  evidence.   The evidence  in  this behalf is oral as  well  as  documentary. P.W.  2  Venkatarama Ayyangar, claimed to be the  karnam  of Thenam and Pattiswaram Padugai for 24 years.  He stated that Pattiswaram  Padugai  was a separate village  with  separate account and , was included in the Vattam of Thenam  Padugai. Rajagopala Ayyanger (P.W.4) who was the in-charge (1)  (1957) 1 M.L.J. 72.  431 karnam of Pattiswaram Paduqai, his father being the  karnam, claimed knowledge of the conditions for 20 years.  He stated that   though  Thenam  Padugai,  Pattiswaram   Paduqai   and Vellapillaiyarpettai  were  included in the  Thenam  Padugai vattam and not contiguous, there were separate accounts  for each  village.   He proved Ex.  P 19 (No.  12  account)  and Ex.P-19  (a)  (No.  12 part If  account)  relating  to  this village.   Then,  there  is the revenue  record,  Ex.   P-3, which,  though  not  strictly  a record  of  rights,  is  an official  document  of  great value.   It  is  described  as Irrigation  Memoir  No. 7 Tenam Padugai  Thattimal  village, Kumbakoman Taluk Tanjore District.  In that, it is stated as follows :               "Teriampadugai   Tattimal  is   an   unsettled

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

             mokhasa  village lying 4 miles  south-west  of               Kumbakonan in the Cauvery Delta.  It  consists               of three bits, the first bit lying between the               Kodamurutti and the Mudikondan rivers and  the               second  bit  between the  Mudikondan  and  the               Tirumalairajan  rivers and the third bit  near               Sundarperumalkovil   Railway   station.    The                             second  bit  is locally  known  as  Pattiswara m               Padugai while the third as vellapilliarpettai.               "The village is governed by the provisions  of               the Madras Estates Land Act 1 of 1908." This  document of the year 1935 shows that the three  blocks together  constituted  a Mokhasa village of  Thenam  Padugai Thattimal.   Mokhasa  village has been defined  in  Wilson’s Glossary  as  "a village or land assigned to  an  individual either  rent-free  or  at a low quit rent  on  condition  of service."  This  definition  was accepted  by  the  Judicial committee  in Venkata Narasimha Appa Rao Bahadur  v.  Sobha- nadri  Appa Rao Bahadur (1).  Further, in the  land  revenue receipts, Exs.  P-10, P-11, P-12 and P-22, (1)   [1905] 1. I.L.R. 29 Mad. 52, 55. 432 and  in  the quit rent receipt which have  been  filed,  the village  is  described  as  a whole  village  and  even  )he appellant  in Exs.  P-15 and P-9 described  the  Pattiswaram Thattimal  Padugai as a village attached to  Mokhasa  Thenam padugai Vattam. In view of this evidence, it is quite clear that the finding concurrently  reached  in the High Court and the  two  Court below  is  based on evidence.  It was  contended  that  this evidence is of modern times, and what is to be proved is the existence  of  an  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  the evidence, we do not think that the High Court was ’in  error in holding that this land is a part of an inam village,  aid has  been  so ever since 1862.  The fact that there  are  no houses and that the suit land is situated in three different blocks  does  not militate against the evidence,  which  has been produced on behalf of the respondent.  Nor do we  think that  the change of name can count, if the identity  of  the land is properly established.  It was also contended in  the case in the Court of First Instance that the plaintiff was a farmer of revenue and an intermediary, because he had leased out  the lands in his turn, and further that the lands  were the private lands of the appellant, in Which the  respondent could  not  claim  any occupancy rights.   These  two  pleas appear  to have been abandoned by the time the case  reached the High Court, and were not pressed upon us. In  our opinion, the judgment under appeal is right  in  all the circumstances of the case. The appeal thus fails, and is dismissed with costs. Appeal dismissed.  433