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Judgment
Venkatarama Ayyar, J.—This is an application under Article 226 of the Constitution for the issue of a writ of: certiorari to quash the decision
of the Estates Abolition Tribunal, Mathurai in R. A. No. 369 of 1950. The point for decision is whether the village of Ekkattu Thangal is an Inam
estate within the meaning of Section 3(2)(d), Madras Estates Land Act liable to be noted under the provisions of the Madras Act 26 of 1948. The
property which is the subject-matter of this dispute is a parcel of land of the extent of about. 179 acres and 35 cents. That was originally granted
by the Nawab of Arcot to one Kasim Ali Baig subject to the condition that it should not be alienated. In 1781, the descendants of the grantee
became indebted to one Shamier Sultan and in discharge of the debt sold the property to him in. 1787 and put him in possession.
Shamier Sultan then applied to the Government for recognition of his title and on that as appears from G. O. No. 2778 of 1913 marked as Ex. Q
in Ex. R-6, the Government resumed the inam and granted a lease in his favour for a period of 99 years on 30-9-1796. The lease deed contained
a prohibition against alienation and there were also other covenants for breach of which the Government were entitled to forfeit the lease and re-
enter on the lands. There was also a provision for renewal of the lease for a further period of 99 years. No rent was payable under the lease, but
subsequently a quit rent of Rs. 21 per annum was fixed. Notwithstanding the covenant against alienation, the heirs of the grantee effected various
transfers of the lease and in 1895 when the period mentioned in the lease expired it had become vested in one Mr. Raju.
There was an application in 1912 by Raju for renewal of the lease in his favour. That was granted and on 7-9-1914 a formal document of lease
was executed by the Government in his favour. That deed provided for the payment, of rent and there were also covenants relating to the use of
the property demised. There was also a clause empowering the Government to cancel the lease for non-payment of rent or breach of any of the
covenants and to re-enter on the land. There was no covenant against alienation on 13-2-1935 the present petitioner obtained a usufructuary
mortgage of the properties from the descendants of the grantee and in execution of a decree against them, purchased the property and thus
succeeded to their interests under the deed dated 7-9-1914- After the enactment of the Madras Act 26 of 1948 proceedings were started u/s 9
for determining whether the village of Ekkattu Thangal was an Inam estate as defined in Section 3(2)(d), Estates Land Act. The Settlement officer
held that what was granted under the deed dated 7-9-1914 was only a leasehold interest and that it was not an estate which fell within the purview
of the Act. There was an appeal by the ryots to the Estates Abolition Tribunal, Mathurai, which held by a majority that the grant under the deed
dated 7-9-1914 was of an estate and that it was liable to be notified under Act 26 of 1948. It is the correctness of this conclusion that is
challenged in this petition. The principal contesting respondents are the ryots.
The term ""inam"" means in its ordinary & accepted sense a grant of a freehold interest. The properties may be transferred free from any
obligation; or they may be burdened with payment of nominal amounts or performance of some service and they may be liable to be resumed in
certain events, but subject to these incidents the ownership in the properties must pass to the grantee. Where the deed does not divest the
transferor of his ownership in the properties, there can be no inam, however extensive the interest which might be conveyed to the transferee. A
lease of property therefore cannot be said to be a grant of an inam. It merely transfers the right to possession to the lessee for the period of the
lease. The ownership of the properties, however, continues to remain with the lessor and this is so even if the lease is a permanent one.
It may be that in, such a case there is not much of a difference in substance between a lease and a transfer of ownership. But the distinction is in
law clear and fundamental. As observed by Markby in his ""Elements of law
however numerous and extensive may be the detached rights, however insignificant may be the residue, it is the holder of this residue of right
whom we always consider as the owner."" .
In this case, the lease is not even a permanent one. It is limited for a period of 99 years. It must automatically come to an end at the expiry of that
period. The lease deed contains a provision for forfeiture in case of breach of covenants and reentry by the Government. In fact this right was
exercised by the Government on two occasions. On 5th May 1925 the Government terminated the lease for default in payment of the rent and this
order was cancelled on 22-10-1926 on the application of the lessee. In that order the Government observed
he is, however, informed that should any default occur in future, the lease will be terminated and the land immediately re-entered upon.
There was again a cancellation of the lease by the Government on 1-10-1935 and a direction to the Revenue authorities to enter upon the land;
and this order was withdrawn on 2-3-1936. Thus it is seen that the document dated 7-9-1914 which is a formal document executed by the British
authorities is described as a deed of lease, in its substance and contents it is a lease and the Government have also enforced their rights as lessors
under that deed. It is difficult to see how such a grant can be held to be an inam estate as defined in Section 3(2)(d), Estates Land Act.
The conclusion of the Tribunal that the deed dated 7-9-1914 could be construed as an estate is based on the decisions in -- ''Secy, of State v.
Srinivasachariar'', AIR 1921 PC 1 (A): -- ''Moosa Kutti v. Secy. of State'', AIR 1920 Mad 413 (B) and -- AIR 1931 1 (Privy Council) the point
for decision was whether a shrotriamdar was entitled to work mines within his village. It was held by the Privy Council that without express words
a mere shrotriam grant did not carry with it the right to minerals. They observed:
A grant of this description may be no more than an assignment of revenue and even where it is or includes a grant of land, what interest in the land
passed must depend on the language of the instrument and the circumstances of each case; it was not a complete transfer for value of all that was in
the grantor; the interest bestowed was merely something carved out of his larger interest which still remained in him as a reversion; the grantor was
the ruling power, the grantee a Brahmin whose assiduous prayers were engaged; a jodi was reserved and the purpose of the grant was to ensure
the subsistence of the grantee by the appropriation to his use of ""the produce of the seasons each year...."" It does not accord with the scheme of
such a grant that any person taking under it should have the power to consume its subject-matter by quarrying operations, even if an interest in land
was created.
There is nothing in these observations which supports the contention that a lessee is to be treated as an inamdar. The actual decision was that even
an inamdar will not be entitled to work the mines, unless that right is expressly granted. In -- ''AIR 1920 Mad 413 (B)'', the Government had
granted a lease of land to the defendants for a period of three years. The lease deed contained a prohibition against erection of buildings. For
breach of this covenant the Government cancelled the lease and sued in ejectment. The defendant resisted the suit on the ground that as the lease
deed was not registered, it was inadmissible in evidence. The Government relied on Section 90(1)(d). Registration Act which exempted ""sanads,
inam title deeds and other documents purporting to be or to evidence grants or assignments by Government of land or of any interest in land"" from
the provisions of the Act. It was held by Seshagiri Aiyar and Bakewell JJ. dissenting from -- ''Munshilal v. Gopi Ballabh'', AIR 1914 All 120 (D)
that the words ""other documents"" in Section 90(1)(d) should not be construed ''ejusdem generis'' with the words ""sanads and inam title deeds""; and
the lease deed in question would be ""other document"" contemplated by the section. This conclusion is clearly right. The learned Judges then
proceeded on to state as follows:
Further even applying the principle we are not satisfied that a lease of land is not of the same character as a sanad. As the learned Governmen
Pleader pointed out there are sanads by Government and Zamindars which grant property on favourable terms. Therefore the idea implied in a
sanad is not that of a gift without reservation.
It will be noticed that the learned Judges do not say that a lease deed is of the same character as an inam title deed. They only hold that it can be
treated as a sanad. These observations do not afford any ground for the contention that a mere lease is an inam estate as defined in Section 3(2)
(d), Estates Land Act. In -- ''AIR 1949 Mad 304 (C)'', the question arose with reference to a deed which was styled as a permanent cowle. It
was contended by the landlord that a lease could not be an inam estate as defined in Section 3(2)(d), Estates Land Act and that therefore the
tenants had no occupancy rights. In overruling this contention Panchapagesa Sastri J. observed:
It seems to me that the plaintiff''s title under this document is to a permanent undertenure of a portion of a village on a small annual payment of Rs.
2 described as kattubadi in the document. The reference to the services rendered by Subba Rao to the proprietors the small amount of kattubadi
fixed having regard to the extent of the lands given, which is about 8 acres approximately, the provision that Subba Rao shall be entitled to enjoy
the property hereditarily with full powers of alienation, and the further significant clauses that the only right which the proprietors reserve to
themselves is a right to recover only the sum of Rs. 2, the Kattubadi amount, and that they ''shall have no right to the land at any time'' would all
seem to indicate that this is an inam grant and not a mere lease of jeroyti land on favourable terms. On this interpretation of the document, it follows
that the grantee is merely a landholder within the meaning of the Madras Estates Land Act and that the defendants in possession will be the ryots
who are entitled to occupancy rights.
It will be seen that these observations recognise that if the grant was one merely of leasehold right, it will not be an inam estate and is therefore
really an authority against the contention of the respondents. What the case decided was that a deed should be construed not according to the
name which is given to it, but according to its substance as disclosed by its contents. There cannot be the shadow of a reason for construing the
lease deed dated 7-9-1914 as an inam grant. I must accordingly hold, differing from the Tribunal that the grant comprised in the deed dated 7-9-
1914 is not an estate as denned in Section 3(2)(d), Madras Estates Land Act and it is, therefore, outside the operation of Madras Act 26 of 1948.
Mr. Seshachari, the learnel counsel for the ryots contended that whatever the true import of the deed dated 7-9-1914, there was a long course
of decisions in which it had been construed as the grant of an inam estate as defined in Section 3(2) (d). Estates Land Act and that it was too late
in the day to reverse that current. In 1921 and 1922 the heirs of Danagoti Raju instituted a batch of suits in the Court of the District Munsif of
Poonamallee for ejecting the tenants on the land and for recovery of mesne profits. The defendants pleaded that they had occupancy rights, that the
lease deed dated 7-9-1914 executed by the Government in favour of Raju could not affect those rights, that the village was an estate as defined in
Madras Estates Land Act & that the civil Court had no jurisdiction to try the suit. The learned District Munsif held that the defendants had
occupancy rights over the lands even before the original grant in favour of Kasim Ali Baig that the lease deed dated 7-9-1914 related only to the
melwaram rights in the lands and that the village was an estate as defined in the Madras Estates Land Act (Vide Ex. R-6). In the result, the suits
were dismissed.
Subsequent to this, the heirs of Raju filed M. P. No. 2 of 1939 in the Court of the Deputy Collector, Saidapet, for recovery of arrears of rent and
of other cesses on the footing that the tenant was a ryot in an estate. The defendant contested the suit on the ground that the village was not an
estate and that the suit was not maintainable in the Revenue Court. The Deputy Collector accepted this contention and passed an order on 25-8-
1939 directing the return of the plaint. The correctness of this order was questioned in -- ''C. R. P. No. 344 of 1940 (Mad) (E)'' on the file of this
Court, and by an order passed therein on 20-3-1941 Patanjali Sastri J. remanded the matter to the Deputy Collector for fresh hearing. On 23-9-
1941 the Deputy Collector passed a fresh order again holding that the lease was not an estate as defined in the Estates Land Act. There was an
appeal to the District Court by the plaintiffs C. M. A. No. 45 of 1941 and by a judgment passed therein on 13-2-1943 it was held that the
question was concluded by the judgment of the District Munsif of Poonamalee in the 1921 and 1922 litigation (Ex. R-6) and that the village must
accordingly be held to be an estate. A revision against this judgment -- ''C. R. P. No. 609 of 1943 (Mad) (F)'', was dismissed on 6-12-1943 by
Byers J. who observed:
although it is argued that the learned Judge''s view on the question of ''res judicata'' is erroneous that is not an error of jurisdiction.
The position therefore is that in proceedings to which the landlords and tenants were parties, it was held both in Ex. R-6 and in C. M. A. No.
45 of 1941 that the grant under the deed dated 7-9-1914 was of an inam estate as defined in Section 3(2)(d), Estates Land Act. It may be
possible to contend that a decision turning on the construction of a document should not be held to be ''res judicata'' in respect of a cause of action
which arises subsequent to that decision. Vide -- ''Broken Hill Proprietary Co. v. Broken Hill Municipal Council'', (1926) AC 94 (G), where the
question was with reference to the construction of a statute; and --''Narayana Iyyangar v. Subramania Chettiar'', AIR 1937 Mad 254 (H). But
even if the question were open. I should have hesitated, if the proceedings had been between the landlord and his tenants to come to a contrary
conclusion as that must upset old titles and result in endless confusion.
But then, we are primarily concerned in these proceedings with the rights of the petitioner as against the Government While the petitioner contends
that the grant dated 7-9-1914 is not an estate as defined in Section 3(2)(d), Madras Estates Land Act, the Government maintains the contrary.
That is a question which has to be decided on a construction of the deed dated 7-9-1914. If there is no grant of an estate under the deed, the
Government has no power under Act 26 of 1948 to take it over. In the event, cart they say that in litigations to which the tenants were parties the
deed had been construed as granting an estate as defined in Section 3(2)(d), Estates Land Act and that by reason of those decisions they are
entitled to seize the estate under Act 26 of 1948? Clearly not. They were not parties to those suits. They are neither bound by the decisions
therein, nor are they entitled to rely upon them. It may seem anomalous that the same property should be held to be an estate as between the
petitioner and his tenants, but not as between the petitioner and his lessor. That, however, is not a ground for holding that the Government is
entitled to take over what is in fact not an estate under the Act. In this connection, it must be remembered that not merely was the Government not
a party to the judgments already referred to, but that they throughout took up the position that the village was not an estate. In 1938 the petitioner
applied to the Collector of Chingleput to be registered as a landholder u/s 3 and Section 5, Estates Land Act, so as to facilitate collection of rent
by him. On that the Government passed the following order on 7-12-1938:
The village in question is held under a lease from the Government and it is not an inam village. Act 1 of 1908 does not therefore apply to this
village. Your client''s request to register his name as a landlord is not therefore possible.
In other words, the Government insisted that the status of the petitioner was that of a lessee under the document dated 7-9-1914. Thus, at no time
prior to the enactment of Act 26 of 1948 did the Government take up the position that the lease was the grant of an inam estate. Indeed it is a
question whether the Government would not be estopped from contending that the lease is an inam. Under the terms of the deed dated 7-9-1914
the petitioner is entitled to remain in possession for a period of 99 years so long as he pays rent as provided therein and acts in accordance with
the terms thereof. If the Government is now permitted to contend that the deed is an inam, that will enable them to dispossess the petitioner in
derogation of the terms of the deed. It is well-settled that where there is a transaction of lease, the lessor & the lessee are both of them estopped
from denying the rights of the other thereunder. That is on the principle that estoppel is mutual. In Halsbury''s Laws of England, Vol. 13 para 572
at page 505 the law is thus stated:
Similarly the lessor is estopped from repudiating a lease under which possession has been given or a tenancy which he has acknowledged and the
assignee of the lessor''s interest is estopped from denying anything which the lessor is estopped from denying.
It is true that if an Act of Legislature alters or abridges the rights of the parties, that must prevail and there can be no estoppel against a statute. But
Act 26 of 1948 does not purport to alter the obligations of the Government as a lessor. An enactment authorising the Government to take over
estates does not authorise them to repudiate a lease created by them, and does not free them from estoppels to which they are subject as lessors.
But even apart from any question of estoppel, I must hold that the deed dated 7-9-1914 does not on its true construction grant an inam estate as
defined in Section 3(2)(d), Madras Estates Land Act, that Act 26 of 1948 does not apply to it and that the title of the petitioner to the properties
under that deed remains unaffected.
In this view, the question naturally arises, what are the rights of the tenants on the land. It had been held in Ex. R-6 that they had occupancy
rights on the lands and that the grant under the deed dated 7-9-1914 was an estate as defined in Section 3(2)(d), Estates Land Act. Now that the
Estates Land Act has been repealed what happens to these rights? Can the petitioner now eject the plaintiffs on the ground that the protection
granted to them by the Estates Land Act is no longer available? If that were the consequence, that would undoubtedly be unjust to a degree;
because an Act which was intended to confer rights on tenants would have the effect of depriving them of what they had. That situation, however,
does not arise in this case. A reading of the judgment Ex. R-6 shows that what was pleaded by the tenants and found by the Court was that they
had rights of occupancy even before the grant in favour of Kasim Ali Baig and that the deeds dated 30-9-1796 and 7-9-1914 conferred rights on
the grantee only over melwaram. This finding was sufficient to non-suit the plaintiffs, irrespective of the question whether the grant was of an estate
or not because it is well-settled that there can be occupancy rights even in ryotwari tracts. Vide the decision of the Privy Council in -- ''Seturatnam
Aiyar v. Venkatachala Goundan'', AIR 1920 PC 67 (I). The further conclusion that the village was an inam as defined in Section 3(2)(d) of the
Estates Land Act was wholly unnecessary.
The position therefore is that the ryots in the village of Ekkattu Thangal must be held to have occupancy rights from time immemorial; that such a
right existed prior to the enactment of the Estates Land Act; and the said right remains unaffected by the repeal of the Act. Mr. Umamaheswaram,
the learned advocate for the petitioner conceded that the tenants have rights of occupancy even though the deed dated 7-9-1914 was not an estate
as defined in Section 3(2)(d), Madras Estates Land Act. The result, therefore, is that while the tenants have permanent occupancy rights, the
petitioner will be entitled to hold as lessee under the deed dated 7-9-1914 and that such right is not affected by the Madras Act 26 of 1948. In this
view, the decision of the Tribunal must be Bet aside.
It was argued finally by Mr. Seshachari on behalf of the ryots that the petitioner was entitled to agitate the question whether the grant was an
estate or not in an independent suit; that the decision of the Tribunal could at worst be only stated to be erroneous in law and that there being
another remedy open, this Court should not interfere in proceedings by way of writ. But here the grant is before the Court and the only point for
determination is whether on its true construction. It is an estate as defined in Section 3(3)(d). Estates Land Act. It would be a proper exercise of
the powers of this Court to interfere in such cases when the decision of the tribunal is on the face of it erroneous.
In the result, the decision of the Tribunal in R. A. No. 369 of 1950 is quashed. The petitioner is entitled to his costs from the ryots-respondents.
Advocate''s fee Rs. 100.