Madras (now Andhra) State vs Kalahasteeswaraswamy Temple and Another

Subba Rao, C.J.—This is an appeal against the order of Ven-katarama Ayyar J. allowing an application filed by the trustee of Sri Kalahasteeswaraswamy temple for the issue of a Writ of Mandamus prohibiting the State of Madras from taking possession of the village of Kalahasti.

The village of Kalahasti formed part of the ancient Zamindari or kalahasti, which is one of the impartible estates included in the Madras Impartible Estates Act (II of 1904). In the year 1791-1792, the Rajah of Kalahasti granted the village in inam to the temple. At the time of the permanent settlement in 1802, peishkush was fixed in regard to the entire Kalahasti Zamindari not by, taking into account particular assets of the Zamindari, but by computing military service. See Secretary of State v. Raja of Venkatagiri, ILR 44 Mad 864 : AIR 1920 PO 168 (A), and Sree Raja Velugoti Navaneetha Krishna Yachendra Bahadur Varu Vs. Sirigiri Ramanujulu Chetty by next friend Irla Pullaiah Chetty, (B). The effect of that process was that the pre-existing mams, including the inam of the village of Kalahasti, were not excluded from the assets of the Zamindari. The inam of the village of Kalahasti, therefore, continued to be held on a permanent under-tenure under the Zamindar. In the year 1932, the said village was separately registered under Madras Act I of 1876. On 12-12-1950, the State of Madras notified the village of Kalahasti as a zamindari estate under Madras Act XXVI of 1948. The result of that Notification was that the said estate was abolished and the Government became the owner thereof. The writ of Mandamus was filed on the ground that the State of Madras had no jurisdiction to notify the said village as a Zamindari estate. Venkatarama Ayyar J., held '' on a consideration of the relevant provisions, that the village of Kalahasti was not a zamindari estate and that the notification dated 12-12-1950 was erroneous. The State of Madras preferred the above said appeal against the said order. After the Constitution of the Andhra High Court, the said appeal has been transferred to this Court.

The learned Advocate General contended that the legal effect of the separate registration of the village under Madras Act I of 1876 was to put an end to the pre-existing tenure under the Zamindar and to convert it into an estate as defined u/s 3 (2) (b) of the Madras Estates Land Act, directly liable to pay peishkush to the Government, whereas Mr. Vedanthachari, learned Counsel for the Respondent, maintained that the said registration had no such effect, that it was only done, for the limited purpose of separately, allocating the proportionate peishkush payable on the village and that the village continued to be held as an under-tenure notwithstanding such registration.

The relevant provisions of the Madras Estates Land Act and Madras Act XXVI of 1948 (hereinafter referred to as the Act) may now be read:

MADRAS ESTATES LAND ACT.

Section 3 .(1):

"Estate" means

(a) any permanently settled estate or temporarily settled zamindari.

(b) any portion of such permanently settled estate or temporarily settled zamindari, which is separately registered in the office of the Collector.

(c) any portion consisting of one or more villages of any of the estates specified above in Clauses (a), (b) and (c) which is held on a permanent under-tenure.

MADRAS ACT XXVI of 1943. Section 2:

(3) "Estate" means a zamindari or an under-tenure or an inam estate, (15) "Under-tenure Estate" means an estate within the meaning of Section 3 (2) (e) of the Estates Land Act.

(16) "zamindari estate" means (ii) an estate within the meaning of Section 3 Clause 2 (b) or 2 (c) of the Estates Land Act after excluding there from every portion which is itself an estate under. Section 3 Clause 2 (c) of that Act. Section 3:

With effect on and from the notified date and save as otherwise expressly provided in this Act:

(b) the entire estate...... shall stand transferred to the Government and vest in them, free of all encumbrances.

The aforesaid provisions may be summarised thus. The Estates Land Act recognises for the purpose of that Act five categories of estates embodied in Section 3 (2) of the Estates Land Act. Two of those categories with which we are now concerned are (i) any portion of a permanently settled estate or temporarily settled zamindari, which is separately registered in the office of the Collector, and (ii) any portion of one or more villages of any of the estates specified in Clauses (a), (b) and (c) of that section which is held on a permanent under-tenure. Madras Act XXVI of 1948 recognizes three classes of estates zamindari, under-tenure and inam estates and they are directed to be notified under that Act. Under the later Act, an "under-tenure Estate" means an estate within the meaning of Section 3 (2) (c) of the Madras Estates Land Act and zamindari estate so far as it is relevant for our purpose means an estate within the meaning of Sec, 3 Clause 2 (b) of the Estates Land Act after excluding there from every portion which is itself an estate u/s 3 (2) 1(c) of the Act. It is, therefore, clear from the aforesaid provisions that, under the Act, an under-tenure estate is excluded from a Zamindari ertate. It follows that the Kalahasti village, which is held under a permanent under-tenure and, therefore, is an estate within the meaning of Section 3 (2) (c) of the Madras Estates Land Act, is excluded from "zamindari estate". If that is the correct position, the State Government had obviously no power under the Act to notify Kalahasti as a zamindari estate.

But it is contended that, by reason of the separate registration in 1932 under Act I of 1876, the pre-existing permanent under-tenure was put an end to and thereafter the village haying been separately registered in the office of the Collector, became an estate as defined in Section 3 1(2) (b) of the Madras Estates Land Act. This leads us. to consider the question of the scope of separate registration under Act I of 1876 and its impact on the pre-existing rights. Regulation ''XXV of 1802, under which estates were permanently settled, provided that the proprietors should be at liberty to make transfers only with the consent of the Government and that unless such transfers are registered in the Office of Collector and peishkush separately fixed, the entire estate should be liable for the payment thereof. Simultaneously with the Regulation XXV of, 1802 Anr. Regulation XXVI of 1802 also was passed. u/s 2 of that Regulation the Collectors of the Districts were required to keep public registers for the purpose of registering landed property paying revenue to Government within their districts to enter in them transfers of land from one proprietor to Anr. and to keep them open at all times to the inspection ''of persons concerned in seeing them. As the aforesaid two Regulations did not meet the situation visualised by Government viz., to enforce -registration of all transfers, Act I of 1876 was passed. The object of the enactment as disclosed in the preamble was to make better provision for the separate assessment to land revenue of portions of permanently settled estates alienated by sale or otherwise. u/s 1 of that Act, the alienor or alienee of any portion of a permanently settled estate, or the representative of any such alien or alienee may apply to the Collector of the district in which such portion is situate for - its registration in the name of the alienee and for its separate assessment in respect of land revenue. After making the necessary enquiry, the Collector is authorised to register the alienated portion in the name of the alienee and to apportion assessment of such alienated portion in the manner provided in Section 45 of Madras Act II of 1B64. u/s 4, the effect of such separate assessment of such alienated portion so assessed shall no longer be liable in respect of arrears of revenue due by the estate of which it formed a part; nor shall such estate be liable in respect of the portion so assessed. The Act, therefore, enables the Collector, to apportion the assessment between the parent estate and the alienated part of it and to collect the peishkush from the alienated portion. The Act does not either expressly or by necessary implication confer any new title on the alienee. The rights of the alienee are neither abridged nor enhanced by this Act, which v/as enacted only for a limited purpose. If the alienated portion is an under-tenure and the reversion vested in the zamindar, this Act does not purport to affect that right. The rights inter se between the alienor and the alienee continued to be what they were before the separate registration.

The decisions given by Courts on the provisions of Regulation XXV of 1802 and those on Act I of 1876 clearly support us in this view. The earliest decision is that of the Judicial Committee iu Yettiappa Naicker v. Servagaran, 8 Moo Ind App 327 (PC) (C). There, the Zamindar gave a perpetual lease of a part of the zamindari to Anr. at a low fixed rent in consideration of military service performed by the ancestors of the grantee. The Judicial Committee held that a perpetual lease of a distinct portion of a zamindari is not within the provisions of Section 8 of Madras Regulation XXV of 18D2 and does not require registration as it is not "a sale, gift or transfer" of the whole or any portion of the zamindari. In discussing that question their Lordships made the following observations:

The language of the Regulation would seem to apply to questions between the zamindar and the Government and to have been framed with a view of preventing a severance of the zamindari without public notice to the Government. It is not very obvious upon what principle it can be held that an instrument good against the party making it is bad against an heir........

In Kamalammal v. Raju Naicker, ILR 19 Mad 308 (D), a Division Bench of the Madras High Court pointed out'' that the Government, in order to maintain security for the public revenue due from the estate, apportions the revenue separately as a natural result of the alienation and this Government will do notwithstanding any arrangement between the parties as to which of them is responsible for the revenue.

Another Division Bench of the Madras High Court in (Sree Rajah Kakarlapudi) Venkata Krishnamaraju Bahadur Garu Vs. (Sree Rajah Chintalapudi) Suryanarayana Raju Bahadur and Others, (E), expressed a similar view as regards the scope of Madras Act I of 1876. At page 549 (of Mad LJ): (at p. 376 of AIR), Ramesam J. observed:

The object of Madras Act I of 1876 is not to confer a right upon the alienor or alienee but to separate the duties of the Civil and Revenue Courts in respect of separate assessment........ The passing of this Act'' and the mechanical act of a Collector in refusing to register can make no difference in the rights of parties.

So too, Venkata Subba Rao J., in a concurrent judgment states at page 557 (of Mad LJ): (at p. 380 of AIR), that the object of the enactment is "Co make better provision for the separate assessment to land revenue of the alienated portions. The learned Judges held that the inamdars are "owners" within the meaning of the Act and are, therefore, entitled to apply for separate registration. It is not necessary, to express my opinion on the question whether the inamdar is an "alienee" of a portion of a permanently settled estate or an "owner" within the meaning of Sections 1 and 2 of the Madras Act I of 1876, for this appeal can be disposed of on the former assumption.

Balakrishna Ayyar J., in Rangiah Chetty v. The Andhra State, 67 Mad LW 821 (F), dealing with the question, whether separate registration of a part of a village would make it an estate within the meaning of the Act, made some pertinent remarks relevant to the present enquiry at page 824 as follows:

The only effects of registration are (a) to protect the portion separately registered from being proceeded against for arrears of peishkush due to respect of the estate from which it was carved out, (b) conversely to protect what may be called the original estate being proceeded against for arrears due from the separately registered portion. So far as the Collector is concerned, the act of registration is almost a mechanical act as Ramesham J. explained in G7 (Sree Rajah Kakarlapudi) Venkata Krishnamaraju Bahadur Garu Vs. (Sree Rajah Chintalapudi) Suryanarayana Raju Bahadur and Others, (E)". We are not concerned in this appeal with the correctness of the learned Judge''s conclusions, but we entirely agree with the aforesaid observations defining the scope of separate registration under Act I of 1876.

The aforesaid discussion of the ease law indicates, and it supports My view, that Act I of 1876 was enacted for a limited purpose and that it did not operate on the title of thy parties or the rights inter se between them. I, therefore, hold that the separate registration of Kalahasti villsce-did not put an end to or otherwise terminate the pre-existing permanent under-tenure. If so, it follows -that the said village is not part of a zamindari estate as defined in Madras Act XXVI of 1948 for estates coming under See. 3 (2) (c) of the Estates Land Act, arc excluded from the definition of zamindari estate. The notification issued by the State on the basis that Kalahasti village was a zamindari elate was certainly wrong.

In the result, the appeal fails and is dismissed with costs Rs. 200/-.

W. A. No. 91 of 1953. For the reasons given in Writ Appeal No. 50/53 this appeal also fails and is dismissed. No costs.

Bhimasankaramm, J.

W. A. No. 50 of 1953. X egiae. The sole question for determination in this appeal is whether the village of Kalahasti granted in inam by one of the ancient Rajas of Kalahasti as an under-tenure to the well-known temple of that place is modifiable as a zamindari estate under the Madras Act XXVI of 1948. In 1932, the village was separately registered in the office of the Collector. under the Madras Act I of 1870. A ''zamindari estate'' is defined in Act XXVI of 1948 as:

(1) an estate within the meaning of Section 3, Clause 2 (a) of the Estates I/and Act, after excluding there from every portion which is itself an estate u/s 3 Clause (2) (b) or a (c) of that Act; or (2) an estate within the meaning of Section 3, Clause 2 (b) or 2 (c) of the Estates Land Act, after excluding therefrom every portion which is itself an estate u/s 3 Clause (2) (c) of that Act.

It is to be seen that this definition ) proceeds upon the footing which, as will be seen presently, is obvious from the relevant; definitions of the Estates Land Act, that an estate which comes within Section 3 Clause 2 (a; comprehends en estate which falls under Clause (2) (b) or Clause (2) (c) and that an estate within the meaning of Section 3 Clause (2) (b) or Clause (2) (c) includes what might by itself be an estate under Clause (2) (c). The relevant definitions in the Madras Estates Land Act are:

(a) any permanently settled estate or temporarily settled zamindari;

(b) any portion of such permanently settled estate or temporarily settled zamindari which is'' separately registered in the office of the Collector;

(c) any unsettled palaiyam or Jagir;

(e) any portion consisting, of one or more villages of any of the estates specified above in Clauses (a), (b) and (c) which is held on a permanent under-tenure.

Now, it is manifest that this definition itself B envisages the possibility of what is an estate under Clause (o) falling also under Clauses (a), (b) or (c). It is thus clear that what sis an under-tenure is an estate, because it comes under Clause (e) and may also be an estate under Clause (b) if it is separately registered. It may also come under Clause (a), as it is part of a permanently settled estate. Therefore, as a matter of mere construction, it seems to me obvious that an estate falling under Clause (2) (e) cannot be zamindari estate, for every portion which is itself an estate under-that sub-clause is to be excluded from what is classified as a zamindari estate. Now the village in question, being an under-tenure, clearly falls under Sub-clause (e). Of course it also falls under Clause (b) because it is separately registered. But what falls under Clause (e) is to be taken out from what falls under Clause (b) for the purpose of determining whether an estate is a zamindari estate. ''jumpily, therefore, on the language of the Acts, I have no doubt that the contention of the learned Advocate General on behalf of the Government is untenable. If his contention is right, then an estate failing under Clause (e) when it is separately registered under Act I of 1870 ceases thereafter to fall, under Clause (e) and falls only under Clause (b). This contention seems to me to be clearly in the teeth of the language used in both the enactments.

Nor has the Advocate General been able to show us any authority or principle why the mere factum of separate registration under Act I of 187C should have the effect of destroying the jural relationship between the zamindar and the namdar. Act I of 1876 is designed to provide for the alienor or the alienee of a portion of a permanently settled estate exonerating himself from the liability of the proportionate peishkush payable in relation to the portion not in his possession. It cannot have any effect upon the relationship inter Se of the zamindar and his grantee. It is this that the decision in (Sree Rajah Kakarlapudi) Venkata Krishnamaraju Bahadur Garu Vs. (Sree Rajah Chintalapudi) Suryanarayana Raju Bahadur and Others, (E), makes clear. I agree therefore that the appeal fails and is to be dismissed with costs.

W. A. No. 91 of 1953. For the reasons given in W. A. No. 50 of 1953, this appeal fails and is dismissed.