C.N. Varadappan vs The State of Madras and Others

S. Ramachandra Iyer, J.—This is an appeal u/s 7(1) of the Madras: Act XXX of 1956 against the declaration made by the Estate Abolition

Tribunal, Vellore, that the inam village of Nazarathpet, situate in Sriperumbudur Taluk, Chingleput District, was an inam estate within the meaning

of Act XXVI of 1948. The proprietor of the estate is the appellant.

The inam Nazarathpet is a Shrotriem inam village granted by the East India Company to one Varadappa Mudali, an ancestor of the appellant.

The village is a part of what was originally called Tondamandalam. The regime of the Muhammadan Rulers in the 17th and 18th centuries brought

about practically a collapse of the agricultural economy in that part of the country, partly by reason of the unconscionable assessments and

demands made by the Rulers or their servants-upon the cultivators, and partly due to devastation by war, famine, etc. Emigration and consequent

depopulation followed. It was in that condition that the Nawab of the Carnatic granted to the East India Company in 1750, in recognition of their

services, certain villages on the banks of the Palar in Conjeevaram Taluk. Ten years thereafter the entire District of Chingleput was granted by the

Nawab as a Jagir to the company; that grant was confirmed by the Mogul Emperor Shah Alam in 1763. The Company, however, did not enjoy

the lands granted to them, directly--they leased the lands back to the Nawab himself for a rent, with the result that the features and evils of the

revenue system of the Muhammadan Rulers continued to exist. Under that system the Rulers claimed to be proprietors of all lands, and purported

to collect rents. The revenue collections were based on certain accounts, known as Dowl accounts, which contained statements of particulars of

gross revenue levied from an estate, more often estimates of the amounts which the estate might be expected to yield. It has been stated that such

estimates were either absurdly high or equally absurdly low. Under those circumstances there was very little inducement in the ryots or Mirasdars

to cultivate. The East India Company itself could not get the stipulated income from the Nawab. In the year 1762, i.e., soon after the grant of the

Jagir by the Nawab the East India Company appointed Mr. Bernard, an Engineer, to make a survey of the District, with a view to ascertain its

resources and income. Mr. Bernard conducted an elaborate survey, it is said facing great difficulties, and compiled a list giving particulars of the

lands-and the average collections for four years from 1762 to 1766. Shortly thereafter, the Company assumed direct management of the Jagir.

Their main work was to resuscitate the cultivation of the lands, which had fallen into neglect. They were not slow to realise that their own

prosperity was connected with the prosperity of the cultivator, and that it was necessary to bring more lands into cultivation. Two Collectors were

appointed for the Jagir with the object of toning up the revenue collection. One of them, Mr. Place, whose name is almost legendary, was a

gentleman endowed with extraordinary administrative ability : he set about with earnestness to retrieve the almost extinct Hindu system of the

village economy. He restored the office of Nattuwar (an ancient body of persons analogous to the village monegars) for the purpose of supervising

the cultivation of the villages He conducted elaborate enquiries about the land revenue system, executed or repaired irrigation works and induced

influential persons to bring more lands under cultivation.

On 15th November, 1798, Mr. Place granted a cowle to Varadappa Mudali, a. Natluwar, the ancestor of the appellant. Exhibit A-1 is the

certified copy of the cowle. The cowle refers to the fact that Varadappa Mudali had been appointed a Nattuwar of the District of Poonamallee,

whose duty was to use his influence and endeavour with the ryots of the said District and to extend the cultivation of other lands to the utmost in

their power in such manner as might best reward their labours. His further duties were to reconcile the ryots to such improvements as might be

directed by the Government, to assist at the time of Jamabundy and act as if he were a liaison officer between the Government and the ryots. As a

reward for executing the duties, certain privileges were conferred on the Nattuwar. They were: (1) a Shrotriem grant of four villages, viz.,

Nazarathpuram, Gavelcherry, Aryapunjari and Alatoor. The grant was subject to a payment of jodi of 130 pagodas. (2) A grant of 43 cawnies of

Manyam lands in three villages other than Nazarathpuram. (3) A right to collect 60 per cent, waram upon all cultivation, which the Nattuwar might

carry on in ten named villages. Nazarathpuram was also one of the villages included in this category. We shall have to consider the significance of

this clause at a later stage of the judgment.

The Nawab of Carnatic relinquished his suzerainty over his territories on 16th. October, 1801 and contented himself with a pension from the

East India Company. The Company having become the rulers of the District, set about to evolve a stable land revenue system. They decided to

abolish the office of Nattuwar, rewarding; their erstwhile loyal services with certain grants of privileges. Accordingly, the-Government of Madras

made a Shrotriem grant to Avallah Mudali (Evalappa Mudali), who evidently succeeded Varadappa Mudali. The subject-matter of the grant were

the four villages mentioned as the first of the three items in Exhibit A-1. Exhibit B-6 is the Purwannah, dated 31st August, 1802, granted by Lord

Clive to Avallah Mudali. The grant recited that the Government had decided to continue the shrotriem lands specified therein as reward for the

previous service rendered by the Nattuwar. The grant was a hereditary one, subject to the payment of 20.8 pagodas. In the Inam proceedings the

grant was recognised as confirmed. Exhibit A-4 is the extract from the fair Inam Register. The extent of the inam is mentioned, in accordance with

Mr. Barnard''s Tarapady Account. The total extent was 277-20 acres, and after deducting poramboke and inams, the remainder of the shrotriem

grant was found to be 142-56 acres and a jodi was fixed at 116-1-0, which however was later reduced 113-3-10 by reason of certain

acquisitions by the Government. The Inam Register Extract specifically referred to the Purwannah and to Mr. Barnard''s Tarapadi in 1774 as

written instruments in evidence of the inam. Column 21 stated;

This is a Nat Shrotriem granted in compensation to the party in column 13 (Evalappa Mudali)'' on the abolition of the office of Natwar in his family.

The inam is valid and personal.

The title deed which followed has been filed as Exhibit B-5 in this case. That acknowledges the title of Evalappa Mudali to the shrotriem village of

Nazarathpuram comprising 116-24 acres of wet lands and 24-76 acres of dry lands, subject to a quit rent of in-3-10. It is not disputed before us

that the shrotriem grant comprised only a grant of the melwaram and not any portion of the kudiwaram interest in the village.

On the passing of Madras Act XXVI of 1948, the Settlement Officer initiated suo motu an enquiry into the nature of the shrotriem

Nazarathpuram. By about the same time, proceedings under Act XXX of 1947 had also been initiated. Exhibit B-7 is the order of the Rent

Reduction Officer. The order states that there are no ryoti lands in the holdings of the ryots in the village of Nazarathpettai, and that no proceedings

tinder the Rent Reduction Act, 1947, could, therefore, be taken. The Settlement Officer acting u/s 9 of Act XXVI of 1948 also found that the

village did not. come within the ambit of that enactment, as he found that the kudiwaram in the village was owned by the shrotriemdar at the time

when the village was granted as shrotriem to him by the East India Company. From the order of the Settlement Officer the State appealed to the

Estates Abolition Tribunal, Vellore. The Tribunal held that the village would be an estate within the meaning of Section 3(2)(d) of Act I of 1908, as

it stood before its amendment in 1936, as, in their opinion, certain ryots must have been in possession of the lands in the village at the time of the

grant; from that finding it followed that the village was an inam estate, within the purview of Act XXVI of 1948 and it was declared as such. The

Inamdar has filed the present appeal against the declaration of the Tribunal.

The Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948 was enacted for the purpose of acquiring the rights of the

landholders in estates which came within the ambit of that enactment. u/s 3(b) of Act XXVI of 1948, the entire estate would on notification stand

transferred to the Government and vest in them. The estate, for the purpose of that Act, has been defined as a zamindari or under-tenure or inam

estate. Nazarathpuram is neither a zamindari nor an under-tenure estate, and the question for consideration in the appeal is whether it is an inam

estate. An inam estate has been defined as:

an estate within the meaning of Section 3, Clause (2)(d) of the Estates Land Act, but does not include an inam village which became an estate by

virtue of the Madras Estates Land (Third Amendment) Act, 1936.

For ascertaining, therefore, whether an inam village would be an inam estate within the meaning of Section 2(7) of Madras Act XXVI of 1948, it is

necessary to refer to the definition of the term ""inam"" in Madras Act I of 1908 before its Third Amendment in 1936. Prior to that amendment,

Section 3(2)(d) of that Act ran as follows :�

''Estate'' means any inam village of which the land revenue alone has been granted in inam to a person not owning the kudiwaram thereof, provided

that the grant has been made, confirmed or recognised by the British Government or any separated part of such village.

The case for the appellant was that the village of Nazarathpuram would not be an inam estate, as prior to the grant under Exhibit B-6 Evalappa

Mudali, the predeces-sor-in-title of the appellant owned the kudiwaram interest in the entire village. According to the appellant, the village was a

Ekabhoga Mirasi village in Chingleput District, at the time of Shrotriem grant, the appellant''s family, as the sole Mirasdar of the village, being

entitled to and in possession of the kudiwaram rights of all the cultivated lands in the village, and that since that time, the family had, at all times,

been in possession and enjoyment thereof by direct cultivation through their own farm servants. In support of the claim, the appellant also

produced Exhibit B-2, an extract from the Inam Register, relating to the village in respect of a Manyam, known as Kani Manyam. Kani Manyam,

otherwise known as Grama Manyam, is one of the features of the Mirasi tenure, and it is a grant to the Mirasdars of the village, tax free, the

Miraidars of the village being entitled to enjoy a share therein in exact proportion to their respective interest in the other lands in the village. It was

not disputed before us that Nazarathpuram is one of the Mirasi villages. The villages being in the Chingleput District where that tenure prevails, the

indication afforded by the existence of a Kani Manyam would support the case of the appellant, that the village is a Mirasi one. Exhibit B-2 refers

to Nazarathupettai Varadappa Mudali as the sole holder of the Kani Manyam. From the fact that no other person is indicated as a joint Mirasdar,

it was contended that the entire mirasi right in the village should have been in the family of the appellant. It is the further case of the appellant, that a

mirasdar would be the owner of the kudiwaram in the lands in the village and therefore his predecessor-in-title should be held to have been the

owner of the entire kudiwaram in the villagS on the date of the shrotriem grant evidenced by Exhibit B-6.

Mr. Vedantachariar, the learned Counsel who appeared for the respondents claiming to be ryots in the village, contested the appellant''s claim

on two grounds:

(i) that a mere description of a person as Ekabogam mirasdar could not prove that he was entitled to the Kudiwaram right in all the lands of the

village, and (2) that, u/s 8 of the Madras Estates Supplementary Act XXX of 1956, there was a presumption, until the contrary is proved, that a

disputed area was an estate, and that, on the evidence adduced, the appellant should be held to have failed to prove that the village was not an

estate.

Before considering the contentions raised before us, it is necessary to ascertain the incidents and nature of the tenure obtaining in a mirasi village,

and the rights which the mirasdar possessed in the cultivated and cultivable lands in the village. Nazarathpuram is one of the villages in that part of

the country which was formerly known as Tondamandalam. The name of the village suggests a Christian origin; presumably the village was named

after the incursion into that part of the country of the Roman Catholic settlers from Guntur in the year 1787. From ancient times the agricultural

economy of that part of the country was based on what was known as kaniyachi system. Kaniyachi denotes a hereditary right in the land. Its

Arabic equivalent is mirasi. Kaniyachidars who are otherwise known as mirasdars claim to be the proprietors of the land. It was open to them to

cultivate the lands themselves or through tenants. In the latter case the actual cultivators were called ulkudis or purakudis, the Mohammadan name

for them being payakarries. According to the tradition the son of a Chola King, Adondai Chackravarti, who invaded that part of the country,

succeeded in subverting or driving out the people who inhabited that country and colonised the conquered territory with a number of Vellala

immigrants. In the Manual of North Arcot District by A.F. Cox, at page 115 the origin of the settlers is thus described:

Adondai, after the subversion of the Pallava line, is reputed to have peopled Tondamandalam with 3,000,000 immigrants from the west and south,

of whom one-fifth are said to have been of the Vellala caste. The system which he established, called the mirasi system, is the first of which we

have any record.

The cultivable lands of the conquered country are said to have been divided among the Vellala immigrants, who were moreover given the title to

participate in such communal rights as pasturing cattle or cutting fuel on the village waste lands. The hereditary possession of these lands and

privileges belonged to the Vellalas alone, and was originally known by the term kaniyatchi, a word which, after the introduction of the

Muhammadan rule, was displaced by the Arabic expression mirasi. The mirasi right of the Vellalas must, however, be distinguished from official

mirasi, or the right of village servant to hold land free of rent or on very favourable terms.

The basis of the mirasi tenure is said to be an extension of Manu''s dictum concerning the light in land, namely,--

that cultivated land is the property of the man who cuts away the wood or who first cleared and tilled it.

That was perhaps also a result of expediency, i.e., to induce the settlers to get attached to their lands by creating a kind of equal proprietorship in

them. In the Chingleput District Manual by C.S. Crole, at page 222, the system is described thus:

The basis of the land tenure of this district, then, was not reached by any slow or gradual process of settling down. The ruler was not the result of

the formation of political life in this ''instance, but was himself the fountain from which it sprang. He acquired the country as conqueror, he displaced

the aboriginal nomads with his colony of farmers, and, from motives of necessity and of policy, he made over to them his right of possession of the

soil acquired by conquest retaining for himself the title of nominal lord of it, together with an actual partnership with his subjects in its cultivation.

The tradition as to the origin of the system has however not been accepted as correct in the decision reported in Seshachala v. Chinnaswami

(1916) 32 M.L.J. 1 : ILR (1916) Mad. 410 but it cannot be gainsaid that it affords an intelligent explanation for the claims made by the mirasdars

as incident to the tenure, several of which have been recognised by the Courts. This system continued during the subsequent centuries till the

Muhammadans came, when it received a set-back on account of the rapacity of the rent collectors. The East India Company on assumption of its

sovereignty conducted detailed enquiries to which Mr. Place, Mr. Ellis, the two Collectors, and one Mr. Sankariah the Sheristadar contributed a

considerable amount of research and study. Their opinions have been published by the Government in the Mirasi papers. Shortly stated, the mirasi

tenure is one under which the lands in the village are jointly owned and cultivated by certain individuals known as mirasidars. The rights of the

mirasdars are hereditary. In the Land Tenures in the Madras Presidency by Sundararaja Iyengar at page 95, the tenure is described thus:

The distinctive feature of the mirasi tenure, a feature which is as old as the tenure itself and which still survives, is the division of the village into

pangus or shares, each made up of lands yielding an equal amount of produce and each including a proportionate share of all the benefits of

common, property such as the use of village waste, mines, quarries, fisheries, forests, and pastures. The village is divided into karays, and each

karay comprises so many pangus. The lands constituting a pangu are not situated in one place forming a compact whole, but are distributed

throughout the village having regard to the superiority and inferiority of the soil, and facilities for irrigation. They comprise both nanja or wet lands,

and punja or dry lands, and the possession of a pangu carries also a right to a proportionate share of all the benefits of common property.

In Kumarappa Reddi v. Manavala Goundan (1917) 34 M.L.J. 104 : ILR (1917) Mad. 374 the mirasi right is referred'' to as an interest in the

village lands, though it need not be a proprietary interest. In Ramalinga Mudali and Another Vs. T.S. Ramasami Ayyar, Ramesam, J., observed

that the mirasdars themselves were regarded as occupancy tenants, and that their under-tenants, known as payakris,. had in general no occupancy

rights.

Generally in a mirasi village there are a number of mirasdars. But it may happen that there is only one, either by a process of devolution,

purchase or even by a colonisation by a single individual. In that case the mirasdar is known as an ekabogam mirasdar. An ekabogam mirasdar

will, therefore, be a single individual or family in possession of all the lands in the village, without sharing it with any other co-sharer. In Muna

Muhammad Rowther v. Muthu Alagappa Chettiar (1917) 34 M.L.J. 234 ekabogam is mentioned as a term which was well understood meaning

the whole ownership is vested in one individual as opposed to a case of palabogam where the ownership was divided amongst many. In Ramalinga

Mudali and Another Vs. T.S. Ramasami Ayyar, Ramesam, J., observed"" that, where one mirasdar was the sole tenant of the lands in the village, he

would, be known as Ekabogam Mirasdar.

Whether it is a case of ekabogam or palabogam, the mirasdar or mirasdars in a mirasi village would be the persons entitled to the occupancy

rights in the lands of the village, the actual cultivators not having any such rights. But it must not be taken that the mirasdars are equivalent to the

inamdars of the entire village. Ayling, J. observed at page 463 in Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 : ILR (1916) Mad. 410 mirasi

does not imply any general rule of complete ownership of all the lands in the village. Their rights relate only to the occupancy in the lands cultivated

by them and certain other rights, which have been established by custom in a particular locality. A mirasi village might be a ryotwari or inam village.

The rights of the mirasdars as against the Government in the former and the inamdar in the latter have been the subject-matter of various decisions

of this Court. In some of them the rights of the mirasdars. generally and with respect to the particular rights asserted, have been elaborately

considered. We shall refer to a few of them presently.

In a village there are generally three classes of lands : (1) cultivated lands, (2) saikal karambu that is, cultivable or lands once cultivated and

later abandoned and. (3) anadhi karambu, that is, waste lands. The rights of the mirasdars in regard to the latter two classes of cases have very

often been the subject of controversy. In Sakkaji Rao v. Latchmana Gaundan ILR (1880) Mad. 149 it was held that there was no law depriving

mirasdars of any privileges they might have customarily enjoyed, but that it could not be laid down as a uniform rule that mirasdars were entitled to

dues from cultivators holding lands within the area of the mirasi estate under pattas from the Government, and that where the right was claimed by

them and such right was denied, there should be an enquiry whether by custom it prevailed in the estate and the mirasdars were entitled to the right

claimed. In Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 : ILR (1916) Mad. 410 a controversy arose as to the right of an assignee from the

Government to the nattam or house-site; the mirasdars claimed that they were the owners of the site, but the Government denied it. The learned

Judges held that, in the absence of proof to the contrary, the presumption would be that the Government and not the mirasdars were the owners of

the house-site in the mirasi village, but that it would be open to-them to prove in any particular case that they had right over such lands. Ayling, J.,

summed up the rights of the mirasdars thus at page 464:

Whatever view is taken of the origin of mirasi tenure (which is entirely a matter of speculation and the privileges it confers, there are undoubtedly

certain incidents, which have been claimed as. attaching to it from ancient times, and have to some extent been recognised. They are:

(a) The right to hold his manyam lands free of all payment of land revenue.

(b) The right to hold his patta lands in absolute ownership subject to the payment of such assessment as the State may impose.

(c) A preferential right to cultivation of all lands which have been brought under but have gone out of cultivation [Seykal Karambu).

(d) The right to certain fees (tunduvaram) on lands granted for cultivation to non-miras cultivators (payakaris).

(e) Certain rights over immemorial waste.

(f) Certain rights over lands set apart for various communal or public purposes, e.g., tanks, village site, threshing floor, etc.

Now all these rights may have a common origin in the status of the mirasdar; but none of them necessarily involve another, and, as will be seen,

they vary with the description of land to which they relate. Each, as it seems to me, requires to be separately established; and recognition by the-

State, whether express or implied, is an indispensable condition for the enforcement of each.

The decisions in Sakkaji Rao v. Latchmana Gaundan ILR (1880) Mad. 149 and Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 : ILR (1916)

Mad. 410 related to a mirasi village which came under the ryotwari settlement. Sivanantha-Naicken v. Nattu Ranga Chari ILR (1903) Mad. 371

and Venugopala Naidu and Others Vs. Perumal Odayan and Others, were cases of inam villages. In none of the cases was there any controversy

raised that the mirasdar was not entitled to the kudiwaram right in the cultivated lands. In the analysis of the rights of a mirasdar contained in the

judgment of Ayling, J. in Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 : ILR (1916) Mad. 410 Clause (a) relates to the kani manyam or

samudayam manyam which is granted free of payment of revenue to the mirasdars. Clause (b) refers to patta land, i.e., lands in respect of which

ryotwari patta was granted, as the learned Judge was dealing with the case of a ryotwari village. Ryotwari patta would have been granted to them

only because the mirasdar happened to be the owner of the occupancy. Correspondingly in the case of an inam village the mirasdar would be

entitled to kudiwaram interest in the ryoti lands and the inamdar would be entitled to the melwaram. Substantially the mirasdars of a village would

have an absolute heritable and transferable right in the cultivated lands of the village, subject to the payment of assessment to the Government.

They have a similar right in the kaniachi manyam as an apanage to their miras, free from obligation to pay any assessment to the Government. In

addition, certain other rights have been claimed on their behalf from time to time, e.g., right to receive fees, called mera or swantantaram on the

produce of all the lands in the village yielding revenue to the Government; a right to receive tundu-waram or short assessment in all produce raised

on the lands in the occupation of non-mirasdars. In Sakkaji Rao v. Latchmana Goundan ILR (1880) Mad. 149 a suit was laid by the mirasdars. of

a village against a tenant who was let into possession by the Government in a ryotwari village. The mirasdars claimed a right to possession of the

property, and arrears of tunduwaram. It was held that the mirasdars were not entitled, apart from custom, to recover the dues by the cultivator

holding lands within the areas of the mirasi estate under pattas from the Government, until they were able to prove the custom by which they would

be entitled to do so. In Sivanantha Naicken v. Nattu Rangachari ILR (1903) Mad. 371 certain lands forming part of immemorial waste were taken

up by the Government under the Land Acquisition Act. The village in the case was a shrotriem inam. In the dispute between the inamdars and the

mirasdars for the compensation for the lands acquired, it was held that the shrotriemdars were entitled to the compensation in preference to the

mirasdars, as the mirasdars would not be entitled to the waste lands. Seshachala v. Chinnaswami (1916) 32 M.L.J. 1 :I.L.R. (1916) Mad.410 was

a case where the dispute was in regard to a nattam poramboke in a mirasi village. The claim of the mirasdars. that the Government could not grant

the house-site or the nattam and that they alone had a right to do so was not accepted. In Ramalinga Mudali and Another Vs. T.S. Ramasami

Ayyar, a dispute arose between the cultivating tenants and the inamdar as to whether the former would be entitled to the occupancy rights. In that

case the right of the inamdars had been acquired by the inamdar. It was held that the cultivating tenants would have no right of occupancy, which

was a part of the mirasdar''s right. In Venugopala Naidu and Others Vs. Perumal Odayan and Others, certain tenants were let into possession of

uncultivated lands by the inamdar. The mirasdar claimed that the tenants were liable to pay rent to them, as their own tenants. It was held that the

tenants were not liable to be evicted at the instance of the mirasdars, although they would be liable to make customary payments like tunduwaram,

etc., to the mirasdars. Narasimha Raghavachari v. The Secretary of State for India in Council (1930) 60 M.L.J. 137 was the case of a ryotwari

village where the ekabogam mirasdar claimed a preferential right over the village waste, and to interdict an assignment of the waste lands by the

Government in favour of strangers. That claim was negatived. Except the decision in Ramalinga Mudali and Another Vs. T.S. Ramasami Ayyar,

the other cases referred to above were concerned with the rights of the mirasdars in the uncultivated or waste lands in the village, and it was held

that, in the absence of proof of custom as to the extent of those rights, the mirasdars would not be entitled to them. It was, however, recognised in

all the cases that mirasdars would be entitled to the kudiwaram interest in the cultivated lands of a village. That matter arose for consideration

directly in Ramalinga Mudali and Another Vs. T.S. Ramasami Ayyar, where the learned Judges held that the mirasdars themselves should be

regarded as occupancy tenants, and their under-tenants, known as payakaris, had in general no occupancy rights. If then, in the present case it is

proved that the grantee under Exhibit B-6 was the ekabogam irasdar of the village at the time of the grant, it would follow that he owned the

kudiwaram right in the village.

We have therefore to consider whether the appellant''s predecessor-in-title had the kudiwaram right in all the lands, or whether there were

other ryots in the village, when the East India Company made the shrotriem grant in his favour. Exhibit A-1 is the cowle , dated 15th November,

1798 granted by Mr. Lionel Place, the Collector of the Chingleput Jagir in favour of Varadappa Mudali. Village Nazarathpuram was one of the

four villages granted in shrotriem right to him thereby. A shrotriem is a grant of land revenue made to servants of the Government as regard for past

services. Therefore from the terms of Exhibit A-1 it cannot be held that Varadappa Mudali was the owner of the Kudiwaram at the time. Reliance

was, however, placed on other evidence in the case to show that Varadappa Mudali was the ekabogam mirasdar of the village, which would mean

that he was exclusively entitled to the kudiwaram right in all the cultivated lands of the village. We shall presently refer to that evidence, after

noticing another contention of Mr. V. Vedanta-chariar, based on the recitals of Exhibit A-1. Referring to category 3 of the privileges granted to

Varadappa the learned Counsel contended that there must have been in existence some ryots other than cowledar in the village, either at the time

of Exhibit A-1 or thereafter. The third item of privilege granted to Varadappa Mudali under Exhibit A-1 runs thus:

Sixty per cent waram upon all cultivation, which you may carry on in the following villages .... Nazarathpuram.

The inference that is sought to be made from this recital is that there should have come into existence other tenants in the village from whom

Varadappa Mudali was authorised to collect 60 per cent waram, and it was contended on the basis of such an inference that it was for the

appellant to show that no such right was in existence at the time of the Purwana Exhibit B-6. In our opinion, the clause relied on could only relate

to the uncultivated lands in the village as it postulated future cultivation. We have already shown, by a reference to the decided cases, that the

Government of the country would have a right to grant such lands to persons other than mirasdars, subject to the right of the mirasdars, if any, only

to collect tunduwaram or other warams from the tenants of the Government. But the clause in Exhibit A-1 places Varadappa Mudali in a better

footing. That recognized that it was Varadappa that was to carry on cultivation but imposed only a restriction on the rent to be collected by him if

he were to let in tenants. Even assuming that Exhibit A-1 recognised a right in the tenants that were later on to be let into possession, the evidence

afforded by the document would only show that certain lands remained uncultivated in the village, in which the Government of the country desired

that there should be cultivation. It cannot prove that there were any other kudiwaramdars or even that if new tenants were introduced in the lands

by Varadappa Mudali, they would obtain kudiwaram or mirasi right in the lands. There is no evidence to show that any tenants have been let into

possession. The absence of any reference in the Purwana Exhibit B-6 to the existence of any tenants would indicate that there was none. Exhibit

B-2 is an extract from the Fair Inam Register, relating to kani inam, an extent of 8-37 acres in Nazarathpettai village. Column 6 of the document

shows that the inam was supported by Tarapadi and Dowle Accounts as the kani inam of Evalappa Mudali, and that the then holder was

Nazarathapettai Varadappa Mudali. The inam was confirmed by the British Government, and a title deed was issued In a case where there were

more than one mirasdars in a village, kani manyam would have been jointly owned by all of them in proportion to their interest in the other lands in

the village. Exhibit B-2 would, therefore, show that the village was mirasi village, and that the mirasdar was granted, in accordance with custom,

the kaniachi maniam, and that Evalappa Mudali was the sole mirasdar of the village. The contention of the learned Advocate for the respondents

was that the mere fact that a kani manyam was granted to predecessor-in-title of the appellant, or that he was described as ekabogam mirasdar of

the village, would not establish the mirasi tenure in the village. The learned Advocate relied, in this connection, on the judgment of Rajagopala

Ayyangar, J., in W.P. No. 99 of 1951. That was a petition under Article 226 of the Constitution to quash the order of the Estates Abolition

Tribunal. The Tribunal had held, on a consideration of the evidence, that it was not proved that the shrotirem grant in that case was of both the

warams. The learned Judge held that, having regard to the finding of fact arrived at by the Tribunal, there was no case for interference under Article

226 of the Constitution, on the mere ground that expressions like ''mirasi'' were used or on proof of payment of tunduwaram by the ryots. We

agree with the learned Judge that a mere recital in a document, that a person was a ekabogam mirasdar or the mere fact that he was the sole

owner of kaniachi manyam at a given time, would not necessarily show that he was the owner of the entire kudiwaram in the village at the time of a

shrotriem grant to him. We are not, however, hampered in this case by the limitations of the exercise of jurisdiction under Article 226 of the

Constitution, as the matter is brought up in an appeal before us. What we have to consider is the evidence. The documents to which we have made

reference show that Varadappa was the ekabogam mirasdar. Exhibit B-1 is an extract from Paimash Register, which was compiled in the year

1839. That describes Varadappa Mudali as shrotriemdar and ekabogam mirasdar of the village. Mr. Vedantachariar commented on the fact that

the document refers to a kaipathu and varapathu lands, and that those terms would imply the existence of ryots. The contention however, is based

on an inaccurate translation of the Paimask Register which is in tamil. We have looked into the original. There is no reference in the original tb

kaipathu or varapathu lands. But we do find that various survey numbers are referred to therein as bounded by ryoti lands. A rycti land is a

cultivable land. The Paimash Register was compiled long before the Madras Estates Land Act, and the significance which is now attached to the

term ryoti land ''would not attach-to them with all its implication, e.g., the existence of a ryot with permanent rights of occupancy. The entries in

Exhibit B-1 would only mean that the lands dealt with were cultivable or cultivated lands, and there can be no implication that the tenants had any

occupancy rights therein. Quite recently the Rent Reduction Officer found that there were no ryoti lands or holdings of ryots in the village.. If really

there had been some, ryots with occupancy rights in the lands of the village, one would have expected some evidence of transactions by them

dealing with their kudiwaram right in the lands by way of sale, mortgage, lease, etc. No such evidence has been produced. There is no evidence of

any transaction in which any ryot in the village ever asserted his right to the kudiwaram. It should be remembered that, since the time of the

assumption of the jagir in Chingleput, elaborate enquiries and proceedings were going on in regard to mirasi rights in Chingleput village. A number

of litigations cropped between the mirasdars and tenants wherein rights were asserted and denied. Significantly enough, there has been no case, of

any opposition to the Shrotriemdars enjoyment or any assertion by a ryot in the Nazarath-pettai village. Exhibit B-31 is a rental agreement in

favour of Varadappa Mudali executed by one Appu Lala. That is dated 20th February, 1884. Exhibit B-4 is a similar agreement executed on 7th

October, 1903 by one Munisami Pathar in favour of Evalappa Mudaliar, son of Varadappa Mudali. In both these documents, the landlord is

described as an ekabogam mirasdar. The evidence in this case is, therefore, consistent only with the predecessors-in-title of the appellant having

been exclusively the mirasdar of the village. Mr. Vedantachariar referred us to a recent unreported decision in A.S. No. 209 of 1947, etc. In that

case there was evidence in the grant itself to show that there were kapus or cultivating tenants in the village.

In Chinnan v. Kondam Naidu (1913) 26 M.L.J. 169 there was a shrotriem grant of 1802, the grantee being a mirasdar. It was held that,

where there was nothing to show that the grantee had lost the kudiwaram right which prima facie vested in the mirasdar, the village could not be

held to be an estate within the meaning of Section 3, Clause (2)(d) of the Estates Land Act. Spencer, J., observed that encroachments on the

mirasdar''s rights took place only in the 19th century, and the probabilities were that in the year 1802 the mirasdars owned also the kudiwaram

right in the village.

The learned Counsel for the respondents ryots next contended that, although there was no evidence in the case about the existence of any

ryots in the village at the time of the grant, the possibility of a ryot having been there at the time of the inam grant could not be ruled out, and that,

therefore, it should be held that the appellant had failed to discharge the onus of proving that lay on him, rebutting the presumption that was raised

against him u/s 8 of Act XXX of 1956. In our opinion, it is not correct to state that a landlord who asserts that he had kudiwaram right in the

village at the time when the grant of melwaram was made to him, should prove that fact beyond a possibility of its being otherwise. It is well settled

that when the entire evidence is before the Court, the question of onus is of little importance, except when the evidence is equally balanced or

equally untrustworthy. The presumption u/s 8 will, no doubt, come to the aid of the respondents, if the Court is unable to find one way or the other

on the evidence. But, where evidence is adduced in a case, and such evidence if accepted would be sufficient to displac6 the presumption, the

case had got to be decided on the evidence in the light of the probabilities, and it cannot be rejected on the ground of the possibility of a different

state of things existing. To do so would amount to a rejection of proof on the basis of a speculation.

The evidence in the present case shows that Varadappa Mudali was the ekabogam mirasdar of the village, which would mean that he was the

person solely entitled to the kudiwaram interest in all the cultivated lands in the village at the time when the shrotriem grant was made. That

evidence, which is not contradicted by any other evidence, should be held to have rebutted the presumption u/s 8 of Act XXX of 1956. We are,

therefore, of opinion that the conclusion arrived at by the Tribunal cannot be supported, and that the village of Nazarathpettai was not an estate

coming within the provisions of Section 3(2)(d) of the Madras Estates Land Act, as it stood before its Third Amendment in 1936, and that it would

not, therefore, constitute an inam estate within the meaning of Act XXVI of 1948. The appeal is allowed. The appellant, will be entitled to his

costs.