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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.

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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.