judgement:
Appeals Nos. 54 to 65, 67 and 69 to 71 of 1963.
Appeals from the judgment and decree dated January 10, 1956 of the Madras High Court in Appeal Suit Nos. 223 and 224 of 1951, and 264 to 273, 275 and 277 to 279 of 1952.
R. Kesava Iyengar, R. Thiagarajan and R. Ganapathy Iyer, for the appellants (in all the appeals).
Bishan Narain and O. P. Malhotra, for respondent No. 1 (in C.A. Nos. 54 and 55 of 1963).
M. R. K. Pillai, for respondent No. 2 (in C.A. No. 55 of 1963) and for the respondents (in C.As.56 to 65, 67 to 71 of 1963).
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought against the judgment and decree in A.S. nos.223 and 224 of 1951, 264 to 273 of 1952, 275 of 1952 and 277 to 279 of 1952 of the Madras High Court dated January _10, 1956 affirming the judgment and decree in O.S. nos.75, 77 to 81 of 1949 and 19 to 22, 24 to 26, 28 & 30 to 31 of 1950 of the Subordinate Judge, Tanjore.
The appellant instituted the above mentioned suits for re covery of possession from the respective defendants of the disputed lands and for payment of damages at the rate of Rs. 501per annum per acre.
The case of the appellant was that the disputed lands which were purchased by him by a sale deed dated November 11, 1948 (exhibit A 145) are situated in Orathur Padugai which is attached to Pannimangalam, one of the villages comprised in what is known as the "Tanjore Palace Estate", that 756 the said lands are not situated in an estate as defined by the Madras Estates Land Act 1 of 1908 (hereinafter referred to as the 'Act ') and in any event the said lands are 'private lands ' of the appellant and not 'ryoti lands ' as defined in the Act and the various defendants are trespassers in unlawful occupation of the lands and had no right to continue in possession and were therefore liable to ejectment.
The appellant also claimed that the defendants were liable to pay damages at the rate of Rs. 501 per, annum per acre in respect of the lands in their unlawful occupation.
The defence in all the suits was substantially the same.
it was contended by the defendants that the disputed lands are situated in an estate within the meaning of section 3 (2) (d) of the Act, that the lands are 'ryoti lands ' in which they have permanent right of occupancy and that they are not "private lands" as alleged by the appellant and the civil court had therefore no jurisdiction to entertain the suits and the Revenue Courts alone had jurisdiction.
By his two judgments dated October ')1, 1950 and February 2, 1951, the Subordinate Judge, Tanjore dismissed the suits, holding that the lands were situated in an estate and were 'ryoti lands ' in which the defendants were entitled to occupancy rights.
The appellant took the matter in appeal to the Madras High Court which affirmed the decision of the trial court and dismissed all the appeals.
The two principal questions which are presented for deter mination in these appeals are : (1) whether the suit lands are located in an estate within the meaning of section 3 (2) (d) of the Act, and (2 ' ) if the answer to the first question is in the affirmative, whether the suit lands are 'private lands ' or 'ryoti lands ' as defined in the Act.
Section 3 (2) (d) of the Act, as originally enacted states "3.In this Act unless there is something repugnant in the subject or context (2) 'Estate ' means (d) any village of which the land revenue alone has been granted in inam to a person not owning the kudivaram thereof, provided that the grant has been made, confirmed or recognised by the British Government, or any separated part of such village;" The section was amended by the Madras Estates Land (Third Amendment) Act 18 of 1936 to the following effect 757 " (d) any inam village of which the grant has been made, confirmed or recognised by the British Government, notwithstanding that subsequent to the grant, the village has been partitioned among the grantees, or the successors in title of the grantee or grantees.
Explanation (1): Where an inam village is resumed by the Government,it shall cease to be an estate; but, if any village so resumed is subsequently regranted by the Government as an main, it shall, from the date of such re grant be regarded as an estate.
Explanation (2): Where a portion of an inam village is resumed by the Government, such portion shall cease to be part of the estate, but the rest of the village shall be deemed to be an inam village for the purposes of this sub clause.
If the portion so resumed or any part thereof is subsequently regranted by the Government as an inam, such portion or part shall, from the date of such re grant be regarded as forming part of the inam village for the purposes of this sub clause.
" By section 2 of the Madras Act 11 of 1945 section 3 of the Act was further amended as follows "Section 2 : (1) In sub clause (d) of clause (2) of section 3 of the Madras Estates Land Act, 1908 (hereinafter referred to as the said Act) Explanations (1) and (2) shall be renumbered as Explanations (2) and (3) respectively and the following shall be inserted as Explanation (1)namely : Explanation (1): Where a grant as an inam is expressed to be of a named village, the area which forms the subject matter of the grant shall be deemed to be an estate notwithstanding that it did not include certain lands in the village of that name which have already been granted on service or other tenure or been reserved for communal purposes : (2)The amendment made by sub section (1) be deemed to have had effect as from the date on which the Madras Estates Land (Third Amendment) Act, 758 1936 came into force and the said Amendment shall be read and construed accordingly for all purposes;" Section 3(19) of the Act has defined a "Village" as follows " 'Village ' means any local area situated in or constituting an estate which is designated as a village in the revenue accounts and for which the revenue, accounts are separately maintained by one or more karnams or which is now recognised by the State Government or may hereafter be declared by the State Government for the purposes of this Act to be a village, and includes any hamlet or hamlets which may be attached thereto.
" The history of what is known as the "Tanjore Palace Estate" is well known and will be found in various reported decisions of the Judicial Committee and of the Madras High Court : (See Jijoyiamba Bayi Saiba vs Kamakshi Bayi Saiba(l), Sundaram Ayyar vs Ramachandra Ayyar(2), Maharaja of Kolhapur vs Sundaram Iyer (3) and Chota Raja Saheb Mohitai vs Sundram Iyer(4).
In 1799, Serfoji, the then Raja of Tanjore, surrendered his territory into the hands of the East India Company, but he was allowed to retain possession of certain villages and lands which constituted his private property.
When his son the last Raja died in 1855 without leaving male issue, the East India Company took possession of all his properties including his private property.
Thereupon the senior widow, Kamachee Boye Sababa filed a Bill on the Enquiry Side of the Supreme Court of Madras, and obtained a decree that the seizure of the private properties was wrong.
On appeal by the Secretary of State in Council of India, the Privy Council reversed the decree, and ordered the dismissal of the Bill.
Thereafter, a memorial was submitted to the Queen and in 1862 the Government of India which had succeeded the East India Company "sanctioned the relinquishment of the whole of the landed property of the Tanjore Raj in favour of the heirs of the late Raja".
Under instructions from the Government of India, the Government of Madras, on August 21, 1862, passed an order the material part of which is as follows : "In Col. Durand 's letter above recorded the Government of India have furnished their instructions with reference to the disposal of the landed property of the Tanjore Raj regarding which this Government addressed them under date the 17th May last.
Their decision is to the effect, that 'since it is doubtful whether the lands in question can be legally dealt with as State property, and since the plea in equity and policy, for treating them as the private property of the Raja is so strong that it commands the unanimous support of the members of the Madras Government, ' the whole of the lands are to be relinquished in favour of the heirs of the late Raja (page 228).
The Tan ore Palace Estate came into being as a result of this grant.
The question in these appeals is whether the property invol ved in the suits being a part of the Tanjore Palace Estate can be considered to be an "estate" within the meaning of the term in the Act.
It was conceded by the Counsel for the appellant that if it was part of an inam it would be an ,estate ' within the meaning of that Act.
It was, however, contended that the manner in which the property reverted to the widows of the Raja in 1862 after an act of State did not show that the estate was freshly granted but was restored to the widows who enjoyed both the warams, in the same way as the warams were enjoyed before.
To put it differently, the argument was that the effect of restoration or re linquishment was only the undoing of the wrong and therefore if the villages were the private properties of the Raja at the time of the seizure then the same character is maintained when they were handed back to his widow.
The contention was that what actually happened in 1862 was the restoration of the status quo ante rather than a fresh grant by the British Government.
The argument is not a new one but has been raised before and rejected in a number of authorities.
In Jijoyiama Bayi Saiba vs Kamakshi Bayi Saiba(1) it was held by the Madras High Court that the Government Order, 1862 was a grant of grace and favour to persons who had forfeited all claims to the personal properties of the Rajah by the act of State and was not a revival of any antecedent rights which they might have bad.
A similar opinion of the grant was expressed in a Full Bench case of the Madras High Court in Sundaram Ayyar vs Ramachandra Ayyar(2) But in Maharaja of Kolhapur vs Sundaram Iyer(3), Spencer, O.C.J., appeared to doubt the decision of Scotland, C.J., in Jijoyiamba Bayi Saiba vs Kamakshi Bayi Saiba(l) that there was a grant of grace and favour in 1862.
A similar view was taken in Sundaram vs Deva Sankara(4), but these cases have been subsequently explained or not accepted on this point.
In T.R. Bhavani Shankar Joshi vs Somasundra Moopanar(1), it was held by this Court that the act of State having made no distinction between the private and public properties of the Rajah the private properties were lost by the Act of State leaving no right outstanding in the existing claimants.
The Government Order, 1862 was therefore a fresh grant due to the bounty of the Government and not because of any antecedent rights in the grantees.
It was pointed out that the words "relinquished" or "restored" in the Government Order did not have the legal effect of reviving any such right because no rights survived the act of State.
The root of title of the grantees was the Government Order of l862 and it was therefore held that the restoration amounted to a grant in inam by the British Government within the meaning of the Act.
But the question whether with regard to any particular area what was granted in inam is a whole village or less than a whole village is a question that has to be decided with reference to the facts of each particular case.
The question therefore arises whether the area in question, viz., Orathur Padugai, constitutes a whole village and therefore an estate within the meaning of section 3 (2) (d) of the Act.
It was contended for the appellant that the suit lands were not comprised in a whole inam village.
The contention was rejected by both the lower courts which concurrently held that the lands were located in Orathur Padugai, a whole village by itself or a named village and therefore an estate within the meaning of the Act.
It was argued on behalf of the appellant that the finding of the lower courts is vitiated in law because it is based on no evidence.
In our opinion, there is no justification for this argument.
On behalf of the respondents reference was made to exhibit A 64, Pannimangalam Vattam Jamabandhi Account individual war, Fasli 1296, which shows in column No. 3 Orathur Padugai as a village .
Similarly, in exhibit A 78(a), Cess account for Pannimangalam Vattam and exhibit A 79, the Village war Jamabandhi Account Fasli 1309 Orathur Padugai village is shown as a whole village.
Exhibit A 82, Village war Jamabandhi Individual War, Fasli , Jamabandhi Ghoshpara for the village, Fasli 1311 and Exs.A 153 to A 157 all mention Orathur Padugai as a village.
All the leases, lease auctions and receipts given for payment of rent speak of Orathur Padugai as a separate village.
Even the sale deeds, Exs.B 6, B 31, B 32 and B 33 contain a recital of Orathur Padugai as a separate village.
It is manifest therefore that there is sufficient material to show that at least since 1830 onwards Orathur Padugai is a whole village.
On behalf of the appellant reference was made (1) 761 to exhibit A 128 and exhibit A 129 dated April 6, 1800 and July 5, 1800.
Exhibit A 128 is a letter from the President, Tanjore to the Secretary to the Government of Madras in which there is a reference to Pannimungalam.
It is stated therein 'that "the fields of Pannymungalam to the westward of Tanjore which from time immemorial have been reserved for the pasture of the circar cow do remain in the Raja 's possession.
There is neither village nor cultivation on these lands".
In answer to this letter there is a communication from the Chief Secretary to the Government to the Resident, Tanjore, exhibit A 129.
In para 5 of this letter it is stated: "The fields of Pucanymangalam containing neither village nor cultivation shall remain in the hands of Rajah for the pasturage of His Excellency 's cows.
" Much reliance was placed by Counsel for the appellant on these two documents, but the High Court has rightly pointed out that the identity of the lands referred to in Exs. A 128 and A 129 is doubtful.
The lands in suit ate situated at least 30 miles south east of Tanjore town in Mannaroudi taluk but in Exs.A 128 and A 129 the lands are described as westward of Tanjore.
That there was Orathur village in existence even as early as 1830 is clear from exhibit A 151 because in describing certain boundaries of another village it is mentioned as to the north of assessed Orathur village nadappu karai (bund pathway).
Exhibit A 4 of 1868 is a Debit and Credit Balance account relating to Orathur Padugai attached to Mukasa Pannimangalam Thattimal.
It is clear from this Exhibit that the entire village except the waste land was assessed.
From Exhibit A 5 dated September 4, 1870, it appears that the punja lands in Orathur village were taken on lease from the Collector of Tanjore who was the receiver and manager of the estate of the Rajah of Tanjore for a period of 5 years on payment of a total sum of Rs. 122/9/3.
Exhibits A 7, A 8, A 12 to A 16 and A 18 are either Adaiyolai muchilikas or lease deeds for leasing the lands in Orathur padugai village for a term ranted by the Collector of Tanjore.
In all these documents the description is that the lands are situated in Orathur Padugai in Mokhasa Pannymangalam Thattimal.
The documents range between the years 1870 to 1875.
In Ex.A 63 which is the individual war settlement register for Pannymangalam vattam for Fasli 1296 against column 6 it is stated that the income in the matter of the amani cultivation of sugarcane, etc., on 95 kullis is Rs. 4 and it is in Orathur padugai village, Pannymangalam vattam.
Exhibit A 61 is the debit and credit balance account of Orathur padugai for Fasli 1294.
Similarly, in exhibit A 64, the individual war settlement register for Pannimangalam vattam, column 3 relating to the village of Orathur states that the Orathur padugai is a village and the vattam is Pannimangalam.
There are similar des 762 criptions of Orathur as a village in exhibit A 65 which is the settlement register for Pannimangalam vattam for Fasli 1297.
Exhibit A 80 contains a similar description of Orathur village in Pannimangalam vattam.
Exhibits A 153 to A 155 and A 157 are all lease deeds between the years from 1901 to 1906 relating to lease of lands in Orathur padugai.
It is manifest that there is sufficient evidence to show that from 1868 right up to 1907 Orathur padugai was considered as a separate village.
It was contended for the respondents that even after the passing of the Act Orathur padugai was treated as a separate village.
Reference was made in this connection to a number of documents, Exs.A 158, A 105, A 159, A 106, A 116, A 161, B 17,A 117 to A 120, B 18, A 12 1, A 1 62 and A 1 63.
In our opinion, the finding of the lower courts that Orathur padugai is a whole village and therefore constitutes an 'estate ' within the meaning of the Act is supported by proper evidence and Counsel for the appellant is unable to make good his argument that the finding of the lower courts is in any way defective in law.
We proceed to consider the next question arising in this case, viz., whether the suit lands are 'private lands ' within the meaning of section 3 ( 1 0) (b) of the Act which reads as follows : "3.In this Act, unless there is something repugnant in the subject or context . . . . .(10) 'Private land ' (b) in the case of an estate within the meaning of sub clause (d) of clause (2), means (i) the domain or home farm land of the landholder, by whatever designation known, such as, kambattam, khas, sir or pannai; or (ii) land which is proved to have been cultivated as private land by the landholder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years, immediately before the first day of July 1908, provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land; or (iii) land which is proved to have been cultivated by landholder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years immediately before the first day of November 1933, provided that the landholder has 763 retained the kudivaram ever since and has not converted the land into ryoti land; or (iv) land the entire kudivaram in which was acquired by the landholder before the first day of November 1933 for valuable consideration from a person owning the kudivaram but not the melvaram, provided that the landholder has retained the kudivaram ever since and has not converted the land into ryoti land, and provided further that, where the kudivaram was acquired at a sale for arrears of rent the land shall not be deemed to be private land unless it is proved to have been cultivated by the land holder himself, by his own servants or by hired labour, with his own or hired stock, for a continuous period of twelve years since the acquisition of the land and before the commencement of the Madras Estates Land (Third Amendment) Act, 1936.
" Section 3(16) of the Act defines 'Ryoti land ' as follows : "Ryoti land ' means cultivable land in an estate other than private land but does not include (a) beds and bunds of tanks and of supply, drainage, surplus or irrigation channels; (b) threshing floor, cattle stands, village sites, and other lands situated in any estate which are set apart for the common use of the villagers; (c) lands ranted on service tenure either free of rent or on favourable rates of rent if granted before the passing of this Act or free of rent if granted after that date, so long as the service tenure subsists.
" Section 185 of the Act enacts a presumption that land in inam village is not private land and reads as follows : "185.When in any suit or proceeding it becomes necessary to determine whether any land is the landholder 's private land, regard shall be had (1) to local custom, (2) in the case of an estate within the meaning of sub clause (a), (b), (c), or (e) of clause (2) of section 3, to the question whether the land was before the first day of July 1898, specifically let as private land, and (3) to any other evidence that may be produced Provided that the land shall be presumed not to be private land until the contrary is proved: 764 Provided further that in the case of an estate within the meaning of sub clause (d) of clause (2) of section 3 (i) any expression in a lease, patta or the like, executed or issued on or after the first day of July, 1918 to the effect or implying that a tenant has no right of occupancy or that his right of occupancy is limited or restricted in any manner, shall not be admissible in evidence for the purpose of proving that the land concerned was private land at the commencement of the tenancy; and (ii) any such expression in a lease, patta or the like, executed or issued before the first day of July 1918, shall not by itself be sufficient for the purpose of proving that the land concerned was private land at the com mencement of the tenancy.
" Section 6 is to the following effect "6.(1) Subject to the provisions of this Act, every ryot now in possession or who shall hereafter be admitted by a landholder to possession of ryoti land situated in the estate of such landholder shall have a permanent right of occupancy in his holding.
Explanation (1).For the purposes of this subsection, the expression 'every ryo t now in possession ' shall include every person who, having held land as a ryot continues in possession of such land at the commencement of this Act.
The Subordinate Judge and the High Court have concurrently come to the conclusion, upon consideration of the evidence, that the lands in suit are not private lands but ryoti lands.
On behalf of the appellant Mr. Kesava Iyengar conceded that onus is on the appellant to show that the lands are 'private lands ' within the meaning of the Act ', but the argument was stressed that the lower courts have failed to take into account certain important documents filed on behalf of the appellant, viz., A 128, A 129 and the Paimash account dated August 25, and the Land Register, exhibit A 134.
In our opinion, there is no warrant for the argument advanced on behalf of the appellant.
As regards Exs A 128 and A 129 it is apparent that apart from the question as to the identity of the land, they relate to a period previous to the grant of 1862 which alone constitutes the root of title of the grantees and there is no question of restoration or revival of any anterior right.
The same reasoning applies to the Paimash account dated August 25, which 765 cannot, therefore, be held to be of much relevance in this connection.
Reliance was placed on behalf of the appellant on exhibit A 134, the Land Register for Pannimangalam which shows that in Orathur Thattimal Padugai which consists of Punjais (dry lands) and are rain fed, the land holder (the Tanjore Palace Estate) owns both the warams (Iruwaram in vernacular).
It was argued for the appellant that the expression 'Iruwaram ' means that the land was owned as Pannai or private lands.
Reference was made to the record of rights and Irrigation Memoir dated January 13, 1935, exhibit B 8 which shows that the lands are lruwaram and there are no wet lands.
But the use of the expression "Iruwaram" in these documents is not decisive of the question whether the land is private land of the appellant or not.
Under section 3(10) of the Act, private land comprises of two categories, private lands technically so called, and lands deemed to be private lands.
In regard to private lands technically so called, it must be the domain or home farm land of the landholder a,,.understood in law.
The mere fact that particular lands are described in popular parlance as pannai kambattam, sir, khas, is not decisive of the question unless the lands so called partake of the characteristics of domain or homefarm lands.
In our opinion the correct test to ascertain whether a land is domain or home farm is that accepted by the Judicial Committee in Yerlagadda Malikarjuna Prasad Nayudu vs Somayya(1), that is, whether it is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season.
The Legislature did not use the words 'domain or home farm land ' without attaching to them a meaning; and it is reasonable to suppose that the Legislature would attach to these words the meaning which would 'be given to them in ordinary English.
It seems to us that the sub clause (b) (i) of the definition is intended to cover those lands which come obviously within what would Ordinarily be recognised as the domain or home farm, that is to say, lands appurtenant to the landholder 's residence and kept for his enjoyment and use.
The home farm is land which the landlord cultivates himself, as distinct from land which he lets out to tenants to be farmed.
The first clause is, therefore meant to include and signify those lands which are in the ordinary sense of he word home farm lands.
The other clauses of the definition appear to deal with those lands which would not necessarily be regarded as home farm lands in the ordinary usage of the term; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period.
It seeing to us that the definition reads as a whole (1) I.L.R. 3 Sup.CI/68 5 766 indicates clearly that the ordinary test for 'private land ' is the ' test of retention by the landholder for his personal use and cultivation by him or under his personal supervision.
No doubt, such lands may be let on short leases for the convenience of the landholder without losing their distinctive character; but it is not the intention or the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the warams in the lands and has been letting them out on short term leases.
There must, in our opinion be something in the evidence either by way of proof of direct cultivation or by some clear indication of an intent to regard these lands as retained for the personal use of the landholder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Act cannot acquire occupancy rights.
In the present case there is no proof that the lands were ever directly cultivated by the landholder.
Admittedly, soon after the grant of 1862 the estate came under the administration of Receivers, who always let out the lands to the tenants to be cultivated.
In exhibit B 8, the Record of Rights the lands are entered in column 5 as Punja or dry land.
In column 4 which requires the entry to be made as private land they are not entered as private lands.
If was argued for the appellant that the lands are sometimes called 'Padugai ' and that the expression meant that the lands were within the flood bank and forming part of the river bed.
But the description of the land as 'Padugai ' is not of much consequence because they are also called as Orathur 'Thottam meaning a garden where garden crops are raised to distinguish it from paddy fields.
It appears that the lands actually lie between two rivers and comprise more than 100 acres, and by their physical feature cannot be 'padugai ' in the sense in which the term is normally used.
The argument was stressed on behalf of the appellant that leasing rights of the land were auctioned periodically.
But the High Court has observed that one and the same tenant continued to bid at the auction and there was evidence that tenants continued to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease rights did not necessarily deprive the tenants of the occupancy rights which they e ' were enjoying.
We accordingly hold that the appellant has not adduced sufficient evidence to rebut the presumption under section 18: of the Act that the lands in the inam village are not private land and the argument of the appellant on this aspect of the case must be rejected.
For the reasons expressed we hold that the judgment of the Madras High Court dated January 10, 1956 is correct and these appeals must be dismissed with costs one set of hearing fee.

summary/full:
When the Raja of Tanjore died in 1855 without leaving male issue the East India Company took possession of all his properties including his private property.
However on a memorial being presented by the senior widow of the late Raja, the Government of India in 1862 "sanctioned the relinquishment, of the whole of the landed property of the Tanjore Raja in favour of the heirs of the late Raja.
" The Tanjore Palace Estate thus came into existence.
In 1948 the appellant purchased certain lands situate in Orathur Padugai which was part of the aforesaid Tanjore Palace Estate, and thereafter instituted suits for possession of these lands from various defendants.
The trial court dismissed the suits on the ground that the lands were situated in an 'estate under section 3(2)(d) of the Madras Estates Lands Act 1 of 1908 and they were 'ryoti lands ' as defined in section 3(16) in which the defendants had acquired occupancy rights.
The Madras High Court affirmed the decree, whereupon the appellant came to this Court.
it was contended on behalf of the appellant that (i) the lands did not form an 'estate ' under section 3 (2) (d) of the aforesaid Act because the restora tion of the land to the widows of the Raja of Tanjore did not amount to a fresh grant but only a restoration of the status quo ante; (ii) that Orathur Padugai was not a whole village as required by the definition of 'estate '; (iii) the widows of the Raja enjoyed both the 'warams ' and the lands purchased by the appellant were 'private lands ' in section 3(10)(b) so that the defendants did not have any occupancy rights therein.
HELD: (i) The relinquishment by the Government of India in favour of the widows of the Raja in 1862 was a fresh grant as already held in several cases.
In view of the authorities it could no longer be questioned that the Tanjore Palace state was an 'estate ' within the meaning of section 3(2)(d) of the Madras Estates Lands Act.
[759 F 760 B] Jijoiamba Bayi Saiba vs Kamakshi Bayi Saiba, 3 M.H. C.R. 424, Sundaram Ayyar vs Ramachandra Ayyar, I.L.R. 40 Mad.
3891, Maharaja of Kolhapur vs Sondaram Iyer, I.L.R. 48 Mad. 1, Sundaram vs Deva Sankara, A.I.R. 1918 Mad.
428 and T. R, Bhavani Shankar Joshi vs Somasunakra Moopanar, , relied on.
Chota Raja.
Saheb Mahitai vs Suddaram Iyer, 63 I.A. 224, referred to.
(ii) There was sufficient material on the record to show that at least since 1830 onwards Orathur Padugai was a whole village and therefore an 'estate ' within the meaning of the Act.
[762 C] (iii) The lands in suit were 'ryoti lands ' and not 'private lands '.
The definition in section 3(10) read as a whole indicates clearly that the ordinary test for 'private land ' is the test of retention by the landholder 7 5 5 for his own personal use and cultivation by him or under his personal supervision.
No doubt, such lands may be let on short leases for the convenience of the landholder without losing their distinctive, character; but it is not ' the intention or the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the warams in the lands and has been letting them out on short ]cases.
1765 H 766 B) In the present case there was no proof that the lands were ever directly cultivated by the landholder.
The High Court had found that the same tenants continued to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease rights did not necessarily deprive the tenants of the occupancy rights which they were enjoying.
The appellant had not been able to adduce sufficient evidence to rebut the presumption under section 185 of the Act that the lands in the inam village are not private lands.
[766 C G] Yerlagadda Malikarjuna Prasad Nayudu vs Somayya, I.L.R. , referred to with approval.


judgement:
Appeal No. 355 of 1965.
Appeal by special leave from the judgment and order dated April 4, 1961 of the Madras High Court in Appeal No. 99 of 1957.
N. C. Chatterjee, R. Thiagarajan for R. Ganapathy Iyer, for the appellants.
K. Gopalachari and R. Gopalakrishnan, for the respondents.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought on behalf of the plain tiffs, by special leave, against the judgment of the Madras High Court dated April 4, 1961 in Appeal No. 99 of 1957.
In the suit which is the subject matter of this appeal, the plaintiffs prayed for the settlement of a scheme in respect of a Trust Known as Sina Ravanna Mana Pana Sona Guru Puja Mutt at Pillamangalam Alagapuri, Tiruchnapalli District and for an account of the management of the Trust by the late N. section Chockalingam Chettiar and for certain incidental reliefs.
The case of the plaintiffs was that the Trust was a joint foundation made on November 12, 1919 by Sinnakaruppan Chettiar, father of plaintiffs I and 2 and grand father of plaintiffs 3, Raman Chettiar, father of plaintiff No. 4, Subramaniam Chettiar Plaintiff No. 5, Perianan Chettiar, father of defendant No. 3 and Chockalingam Chettiar, father of defendant No. 1 and grand father of defendant No. 2.
It was said that the Trust was founded for conducting puja to God Vinayagar installed in the Mutt, by an Oduvar; to do special pujas for the Samayarcharyars, viz., Appar, Sundarar, Sambhandar and Manickavachakar and ordinary pujas to the other 63 Nayanmars on their birth days; to conduct a Thevaram Patasala, and feeding the Pupils.
It was alleged that at the time of the foundation Chockalingam Chettiar contributed Rs. 25,000/Sinnakaruppan Chettiar, Raman Chettiar, Subramaniam Chettiar, and Perianan Chettiar contributing Rs. 6,250/ each.
Hundies were passed by the four contributors for Rs. 6,250 each in favour 899 of the first defendant 's father on November 12, 1919 and they were cashed in due course.
it was alleged that the joint founders had at the time of foundation appointed Chokalingam Chettiar who was the largest contributor as the manager and executive Trustee and the latter had constructed buildings for the Mutt and bought lands in Manakkarai village, Mannargudi taluk.
On November 27, 1943, Chockalingam Chettiar nominated defendant No. 2, his grand son as the executive Trustee.
It was alleged by the plaintiffs that defendant No. 2 had stopped the pujas to the Nayanmars and Samayacharyas and had discontinued the Thevaram school and the feeding of the boys.
Several other acts of mismanagement were alleged in the plaint.
The suit was mainly contested by the second defendant who alleged that the sole founder of the Mutt was the late N. section Chockalingam Chettiar, his grandfather, who at first installed the Vinayakar image and also the 63 Nayanmars and established the pujas for the four Samayacharyars and the Nayanmars.
He was also the sole trustee and was in exclusive management from the foundation of the trust till November 29, 1943 when by a registered instrument he appointed the second defendant and his descendants as hereditary trustees.
It was denied that the plaintiffs were joint founders, though they had made contributions for the management of the Mutt.
It was said that from the very date of contribution the plaintiffs never bargained for any rights as trustees but they accepted N. section Chockalingam Chettiar as the sole trustee.
The charge of mismanagement was totally denied by the defendants and it was said that the trust was being maintained and conducted on a much grander scale than during the trusteeship of the senior Chockalingam.
It was asserted that the daily puja to the Vinayakar and the ordinary and special pujas to the Nayanmars and the Samayacharyars were all performed with scrupulous regularity.
The suit was dismissed by the Subordinate Judge of Pudukkotai by his judgment dated January 31, 1957.
The finding of the Subordinate Judge was that the sole founder of the trust was the senior Chockalingam Chettiar who conducted it with the aid of moneys contributed by himself and other persons and that at the time of the foundation the other four contributors did not reserve for themselves any right in the trusteeship of the Mutt.
It was also found by the Subordinate Judge that the charges of mismanagement were unfounded and no case was made out on behalf of the plaintiffs for framing a scheme.
The judgment of the Subordinate Judge was affirmed by the High Court in Appeal No. 99 of 1957 by its judgment dated April 4, 1961.
The High Court substantially agreed with the finding of the Subordinate Judge.
It was held by the High Court that the evidence made it quite clear that the contributors agreed to leave the management of the trust solely in charge of the senior Chockalingam.
The High Court also agreed with the Subordinate Judge that the 900 plaintiffs had failed to establish that all the contributories were joint founders and that they were entitled to turns of management in proportion of 'their contributions.
The only matter on which the High Court expressed its disagreement with the Subordinate Judge was with regard to the date of the foundation of the trust.
The High Court expressed the view that the trust was founded in 1919 but the Subordinate Judge found that the trust had been founded much earlier, though it took a definite shape in the year 1919.
As regards the charge of mismanagement, the High Court agreed with the Subordinate Judge and held that none of the charges had been established and accordingly there were no grounds made out for the framing of a scheme or the removal of the second defendant from the management of the trust.
The first question to be considered in this appeal is whether the appellants are right in their contention that they were joint founders of the trust along with the senior Chockalingam.
It was contended on their behalf that Exs.
A 1 and A 3 described the contributions of the sum of Rs. 6,250/ as having been made towards 1/8th 'Pangu ' or share.
Reference was also made to exhibit A 5, ledger account of the Mutt in which the contribution is described as the share capital.
It was pointed out by Mr. N. C. Chatterjee that the vilasam of the trust S.R.M.P.A.S. supports the claim of the appellants that they were joint founders.
The High Court has, however, rightly pointed out that these two circumstances are not decisive.
There is on the contrary an admission on 'behalf of the first plaintiff that the contributories were not treated as founders.
In the course of his evidence the 5th plaintiff as P.W. 1 stated as follows : "As Chockalingam Chettiar held the largest number of shares the other four requested him to administer the suit trust maintain accounts and render accounts to the four other shares on demand. .
All the five pangudars were present when the decisions to found the charity was arrived at.
We decided that senior Chockalingam should manage the charity to be founded.
None of us demanded that the pangudars should administer the trust by rotation.
None of us suggested that the terms of the endowment should be reduced to writing.
We wanted senior Chockalingam to consult us with reference to important matters pertaining to the administration.
We did not define the nature of the matters with reference to which we should be consulted.
. . . . . . 901 Since the inception of the trust no meeting of the five pangudars was ever held.
Nor were minutes of such proceedings kept.
Chockalingam used to have informal consultations with us.
At no time, between 1919 and 1945, the year of senior Chockalingam 's death did we ever call upon him to show us his accounts.
Nor did he show us his accounts.
We never asked him to what the total income from the lands and buildings was.
I do not remember the particulars of information which senior Chockalingam voluntarily gave us.
" The conduct of the parties subsequent to the foundation of the trust is also not consistent with the claim now put forward on behalf of the appellants.
Senior Chockalingam acquired considerable properties between 1919 and 1945 on behalf of the trust.
Exhibit B 2, dated June 23, 1920, exhibit B 3, dated January 27, , dated June 18, dated June 22, dated January 4, dated March 2, dated September 30 dated September 30, dated June 6, 1936 and exhibit B 12 dated April 5, 1937 are all sale deeds solely in the name of the senior Chockalingam.
The mutt building had always stood in the name of the senior Chockalingam in the register of Alacapuri Panchayat Union.
The oral evidence adduced on behalf of the respondents which has been accepted both by the Subordinate Judge and by the High Court also shows that there was a total non interference on the part of the plaintiffs in the management of Chockalingam till he appointed the second defendant as his succeeding trustee under exhibit B 1 and there was a total non interference also with the management of the second defendant after that date.
P.W. I also admitted in his evidence that the second defendant was appointed as the successor of senior Chockalingam and at the time of the appointment all the plaintiffs and defendant No. 3 agreed that defendant No. 2 should be so appointed as the sole managing trustee.
If the plaintiffs had any right to manage the trust by turns, as they now claim, it is not likely that they would have agreed to the second defendant being appointed as the sole trustee in place of senior Chockalingam.
In our opinion, the High Court was right in reaching the finding that the plaintiffs have failed to establish that they were the joint founders of the trust or that they were entitled in turns to management in proportion to their contributions.
It is not a correct proposition of law to state that every donor contributing at the time of foundation of a trust becomes a founder of the trust.
It may be that in a particular case all the contributors of a trust fund become the founders of the trust itself, but the question when a contributor would become in law a joint founder of the trust would depend not merely upon the fact of his 902 contribution but also upon the surrounding circumstances proved in the particular case and the subsequent conduct of the parties.
In In the Matter of the Endowed Schools Act, 1869 and In the Matter of the St. Leonard, Shoreditch, Parochial Schools(1) it was held by the House of Lords that where a charity is established by.
subscriptions the original subscribers alone are the founders, and the later benefactions are on the footing of the original foundation.
At page 308 of the Report Earl of Selborne, L.C. stated "Now let us consider what is the reasonable manner of applying to such a charity the word 'founder '.
It is reasonably clear that not every subscriber or contributor could be a founder having control over the school, or capable within the meaning of the Act of Parliament of impressing on it, by his own act or by his own authority a denominational character.
It is also reasonably plain, when you have once started with a foundation in 1705, though by small beginnings, yet that everything afterwards added, every accretion to the original subscriptions, which was not an endowment for any new and special purpose, must be taken to be upon the footing of the original foundation; not a new foundation, but something contributed for the purpose of the original foundation. . .
Now it is quite conceivable that a number of persons might have met at that time, and might have come to a common agreement as to the purposes for which they should subscribe and solicit subscriptions; and if that had been embodied in writing, and if they had solicited subs criptions on the footing that either they themselves were to make a law for the charity and give it statutes, or that this was to be done by others in a particular manner, or if in any original documents soliciting sub scriptions there had been a written law laid down for the charity expressing the purposes for which it was to be founded, those persons so initiating the subscriptions, and so declaring the purpose for which they were made and solicited, might be regarded as founders within the meaning of this clause.
But it appears to their Lordships to be quite impossible to attribute that character to those who come after them whether they contributed to the building fund or any other fund in aid of the existing charity or not.
They did not found the charity; they found it existing; they merely aided and assisted it." (1) Io A.C. 304.
90 3 In Sattikara Venkatarama Chettiar vs 0.
P. Damodaram Chet tiar(1) there was a deed of trust executed by V in favour of 19 persons known as Chettithanakaras which stated that he alone was unable to make and set up idols of Ramalingam and Choudeswari Amman in the Choudeswari Amman Temple Devasthanam built by him and that the nineteen persons agreed to raise a fund and to put up the idol in the temple and according to the agreement that they set up the idols of Ramalingam and Choudeswari Amman and they agreed to purchase property for endowing the temple.
and the document then went on to state "that the nineteen persons should manage the temple from generation to generation.
" Funds were collected by V and by the nineteen persons mentioned in the document; they built the temple installed the idols in it, and col lected funds for the upkeep of the temple and managed the temple under the deed of trust.
It was held by the Madras High Court that the deed of trust conferred the hereditary right to the trusteeship upon V and the nineteen Chettithankars.
At page 461 of the Report the High Court stated as follows : "If persons invite subscriptions on a representation that they would devote the subscriptions so collected to a particular purpose and they divert the subscriptions to some other purpose the subscribers have to object to the funds being diverted to other purposes than those for which they were collected.
But so long as the subscribers do not object to the person or persons collecting subscriptions for building or endowing any particular institution, the person or persons so building or and endowing it have the right to provide for its management for all time to come.
There is nothing in the evidence to show that the persons who gave subscriptions gave them on the understanding that the founders should not have the hereditary right of management.
All that appears from exhibit A is, that subscriptions were collected, funds were raised, a temple was built and idols were installed and the management was in the hands of Venkatarama Chetti and others and all of them.
" As we have already stated, the appellants have failed to prove that all the contributories were the joint founders of the trust and that they were all in turns entitled to management in proportion to the amounts that they had contributed.
On the other hand, the evidence makes it quite clear that the contributories agreed to leave the management of the trust solely in the hands of the senior Chockalingam and subsequently of defendant No. 2.
We are accordingly of the opinion that Mr. N. C. Chatterjee has been unable to make good his argument on this aspect of the case.
(1) 904 We proceed to consider the next question arising in this appeal, viz., whether the plaintiffs are entitled to ask for the settlement of a scheme even on the assumption that they were not co founders of the trust.
The parties in this case have proceeded on the footing that the trust is a private trust, but the authorities establish that even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust.
If there is a breach of trust or mismanagement on the part of the trustee, a suit can be brought in a civil court by any person interested for the removal of the trustee and for the proper administration of the endowment. (See, for example, Pramatha Nath Mullick 's case(1) and Manohar Mookerjee vs Peary Mohan(2).
There are also authorities to the effect that a Civil Court may frame a scheme in the ,case of a private endowment at the instance of the parties interested.
The question has been discussed by the Calcutta High Court in Bimal Krishna 's case(3) and it was held in that case that a scheme for the administration of a private endowment can be framed by a Civil Court.
Mookerjee, J. observed in that case that in India the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement, fraud or maladministration on the part of the shebait and to have a proper scheme for management framed for the administration of the private trust.
In Pramatha Nath Mullick 's(1) case to which we have already made reference, the Judicial Committee itself directed the framing of a scheme in the case of a private endowment and the case was expressly remanded to the trial court for that purpose.
In the present case the appellants being contributors to the trust are interested in the proper administration of the trust and, in our opinion, they have a sufficient right to bring a suit in a Civil Court in case there is mismanagement or breach of trust on the part of the managing trustee and for framing of a scheme.
But the question in the present appeal is whether the appellants have made out any grounds for framing of a scheme or for the removal of the second defendant from the management of the trust.
It was alleged by the appellants in the plaints that 'the trust had been mismanaged by the senior Chockalingam and by his grandson, 2nd defendant and both have been guilty of breach of trust.
The main charge levelled against defendant No. 2 was the nonperformance of the pujas and the closing down of the Thevara Patasala and the feeding of the pupils.
The Subordinate Judge has :examined the evidence dealing with the charge and found that it (1) 52 I.A. 245.
(2) 90 5 was not established.
The High Court, upon analysis of the evidence, has reached the same conclusion.
It was also alleged by the appellants that Account Books, Exs.
A 9 and A 10 have been fabricated by defendant No. 2 but the Subordinate Judge and the High Court both held that the allegation was not true.
Certain other charges were also levelled by the plaintiffs against defendant No. 2 and senior Chockalingam but the High Court as well as the Subordinate Judge found that these charges were not substantiated.
The question whether defendant No. 2 or the senior Chockalingam was guilty of breach of trust or of acts of mismanagement is a question of fact and in view of the concurrent finding of both the lower courts on this question we are of opinion that no ground has been made out on behalf of the appellants for framing of a scheme or for removal of defendant No. 2 from the office of the managing trustee.
It follows that the suit brought by the appellants has been rightly dismissed.
For these reasons we hold that the judgment of the High Court dated April 4, 1961 in Appeal No. 99 of 1957 is correct and this appeal must be dismissed with costs.
R.K.P.S. Appeal dismissed.
C.I./68 16 1 69 2,500 GIPF.

dataset_name: IN-Abs

summary/full:
The appellants filed a suit praying for the settlement of a scheme in respect of a trust and for an account of the management of the trust by C and for certain incidental reliefs.
Their case was that the trust was a joint foundation made on November 12.
1919 by the ancestors of various parties to the suit and the first respondent 's late father C; that it was founded for conducting certain special and ordinary Pujas in the Mutt and for the feeding of the pupils.
It was alleged that at the time of the foundation C contributed Rs. 25,000 and four others contributed Rs. 6,250 each and the joint founders had at the time of foundation appointed C, who was the largest contributor, as the Manager and executive trustee.
On November 27, 1943 C had nominated the second respondent, his grandson, as the executive trustee.
Various allegations of mismanagement of the trust were made against the second respondent claiming that he had stopped the Pujas and various other activities for which the trust was created.
The Trial Court dismissed the suit on the finding that C was the sole founder of the trust who had conducted it with the money contributed by himself and other persons and that at the time of the foundation the other four contributors did not reserve for themselves any right in the trusteeship of the Mutt.
It also held that the charges of mismanagement were unfounded and no case was made out for framing a scheme.
An appeal to the High Court was dismissed.
On appeal to this Court.
HELD : (i) The High Court was right in finding the appellants had failed to establish that they were joint founders of the trust and that they were entitled in turns to management in proportion to their contribution.
It is not a correct proposition of law to state that every donor contributing at the time of foundation of a trust becomes a founder of the trust.
It may be that in a particular case all the contributors of a trust fund become the founders of the trust itself, but the question when a contributor would become in law a joint founder of the trust would depend not merely upon the fact of his contribution but also upon the surrounding circumstances proved in the particular case and the subsequent conduct of the par ties.
[901 H] In the Matter of the Endowed Schools Act, 1869 and In the Matter of the St. Leonard, Shoreditch, Parochial Schools, 10 A.C. 304 and Settikara Venkatarama Chettiar vs 0.
P. Damodaram Chettiar, referred to.
Even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust.
If there is a breach of trust or mismanagement on the part of the trustee, a suit can be brought in a civil court by any person interested for the removal of the trustee and for the 898 proper administration of the endowment.
In the present case the appellants being contributors to the trust were interested in the proper administration of the trust and had a sufficient right to bring a suit in case there was mismanagement or breach of trust on the part of the managing trustee and for framing of a scheme.
However, in view of the concurrent finding of both the lower Courts that the allegations of breach of trust or mismanagement had not been established, no ground had been made out on behalf of the appellants for framing of a scheme or for the removal of the second respondent.
[904 A C] Pramatha Nath Mullick 's case, 52 I.A. 245; Manohar Mookerjee vs Peary Mohan, ; and Bimal Krishna 's case, ; referred to.


judgement:
Appeal No. 335 of 1966.
Appeal by special leave from the judgment and order dated November 6, 1963 of the Mysore High Court in Misc.
Appeal No. 293 of 1961.
could not be ignored.
[894 B C] I 893 Niren De, Solicitor General, R. Gopalakrishnan and section P. Nayar, for the appellant.
Naunit Lal and T. section Ramachandran, for the respondents.
The Judgment of the Court was delivered by Shah, J.
On April 15, 1952, the Government of Mysore granted an area of I I acres and 38 gunthas of land situate in village Hebbyle to the respondents to this appeal.
The grant was made in Form Appendix 'E ' to the Mysore Land Revenue Rule. , with the added condition that "in the event of the Government requiring the land for any reason whatsoever, the grantee shall surrender the land to the Government without claiming any compensation".
On January 11, 1958, the Government of Mysore published a notification under section 4 of the Land Acquisition Act that the land granted was likely to be needed for a public purpose.
By a subsequent notification made under section 17(4) of the Land Acquisition Act, Government dispensed with the enquiry under section 5 A of the Act and obtained possession of the land.
In assessing compensation, the Land Acquisition Officer did not award any compensation for the land, and awarded Rs. 1,495/ for improvement claimed to have been made to the land by the grantees.
In a reference under section 18 of the Land Acquisition Act, the District Court agreed with the Land Acquisition Officer.
In appeal, the High Court of Mysore set aside the award and remanded the case to the District Court with a direction to determine the compensation payable to the grantees and to dispose of the case according to law.
The High Court observed that since the Government had failed to exercise the right which it had under the terms of the grant and had adopted the procedure prescribed by the Land Acquisition Act, compensation for acquisition under the Land Acquisition Act and the process by which the grantees were to be deprived of the land must be followed.
Against the order passed by the High Court, this appeal is preferred with special leave.
Under section 3(a) "land" is defined as including benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.
By section 4 the appropriate Goverrnment is authorised to issue a notification that land in any locality is needed or is likely to be needed for any public purpose, and thereafter to exercise certain powers in respect of the land for determining its suitability for the purpose notified.
The Government may under section 17 in cases of urgency take possession of any waste or arable land needed for the public purpose and the land thereupon vests absolutely in the Government free from all encumbrances.
The Government of Mysore did not purport to exercise the power reserved by the terms of the grant, and adopted the proce 894 dure prescribed by the Land Acquisition Act.
The High Court observed, relying upon the decision of the House of Lords in Attorney General vs De Kayser 's Royal Hotel Ltd.(1) that the Government could not, after adopting the procedure prescribed by the Land Acquisition Act, seek to resort to the conditions of the grant and claim that no compensation for acquisition of the land was payable.
It is true that after obtaining possession of the land in pursuance of statutory authority under section 17, the Government of Mysore could not seek to exercise the option conferred by the terms of the grant.
But on that account in assessing compensation payable to the grantees, existence of the condition which severely restricted their right could not be ignored.
The grantees were entitled to compensation for the, land of which the ownership was vested in them.
The measure of that compensation is the market value of the land at the date of the notification, and the measure of that market value is what a willing purchaser may at the date of the notification under section 4 pay for the right to the land subject to the option vested in the Government.
The High Court also placed reliance upon the judgment of the Madras High Court in The State of Madras vs A. Y. section Parisutha Nadar(2).
In that case the main question decided was whether it was open to a claimant to compensation for land under acquisition to assert title to the land notified for acquisition as against the State Government when the land had become vested in the Government by the operation of the Madras Estates (Abolition and Conversion into Ryotwari) Act 26 of 1948.
On behalf of the State it was contended that once an estate is taken over by the State in exercise of its powers under the Estates Abolition Act, the entire land in the estate so taken over vested in the State 'in absolute ownership, and that no other claim of ownership in respect of any parcel of the land in the estate could be put forward by any other person as against the State Government without obtaining a ryotwari patta under the machinery of the Act.
The High Court rejected that contention observing that the Government availing itself of the machinery under the Land Acquisition Act for compulsory acquisition and treating the subject matter of the acquisition as not belonging to itself but to others, is under an obligation to pay compensation as provided in the Act, and that the Government was incompetent in the proceeding under the Land Acquisition.
Act to put forward its own title to the property sought to be acquired so as to defeat the rights of persons entitled to the compensation.
The propositions so broadly stated are, in our judgment, not accurate.
The Act contemplates acquisition of land for a public purpose.
By acquisition of land is intended the purchase of such interest outstanding in others as clog the right of the Government to use the land for the public purpose.
Where (1) ; (2) 895 the land is owned by a single person, the entire market value payable for deprivation of the ownership is payable to that person : if the interest is divided, for instance, where it belongs to several persons, or where there is a mortgage or a lease outstanding on the land, or the land belongs to one and a house thereon to another, or limited interests in the land are vested in different persons, apportionment of the compensation is contemplated.
The Act is, it is true, silent as to the acquisition of partial interests in the land, but it cannot be inferred therefrom that interest in land restricted because of the existence of rights of the State in the land cannot be acquired.
When land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land.
Where the interest of the owner is clogged by the right of the State, the compensation payable is only the market value of that interest, subject to the clog.
We are unable to agree with the High Court of Madras that when land is notified for acquisition, and in the land the State has an interest, or the ownership of the land is subject to a restrictive covenant in favour of the State, the State is estopped from setting up its interest or right in the proceedings for acquisition.
The State in a proceeding for acquisition does not acquire its own interest in the land, and the Collector offers and the Civil Court assesses compensation for acquisition of the interest of the private persons which gets extinguished by compulsory acquisition and pays compensation equivalent to the market value of that interest.
There is nothing in the Act which prevents the State from claiming in the proceeding for acquisition of land notified for acquisition that the interest proposed to be acquired is a restrictive interest.
We agree with the observations made by Batchelor, J., Government of Bombay vs Esufali Salebhai(1) at p. 636 : " The procedure laid down in the Act is so laid down as being appropriate to the special case which is considered in the Act, i.e., the case where the complete interests are owned privately.
But that special case is, as I understand it, singled out by the legislature as the norm or type with the intent that in other cases which only partially conform to the type the procedure should be followed in so far as it is appropriate, nor that such cases should be excluded from the Act because they do not wholly conform to the type.
In other words, Government . are not debarred from acquiring and paying for the only outstanding interests merely because the Act, which primarily contemplates all interests as I.L.R. 896 held outside Government, directs that the, entire compensation based upon the market value of the whole land, must be distributed among the claimants.
In such circumstances, as it appears to me, there is no insuperable objection to adapting the procedure to the case on the footing that the outstanding interests, which are the only things to be acquired, are the only things to be paid for.
" The principle of Esufali Salebhai 's case(1) was it may be observed, approved by this Court in The Collector of Bombay vs Nusserwanji Rattanji Mistri & Others(1).
But the view expressed by the District Court that the grantees are not entitled to any compensation for the land cannot be sustained.
The District Court was bound to determine the market value, at the date of the notification under section 4 of the Land Acquisition Act, of the interest of the grantees in the land.
The order passed by he High Court is maintained subject to the modification that the market value of the interest of the grantees in the land (of the nature hereinbefore mentioned) at the date of the notification under section 4 of the Land Acquisition Act shall be determined and paid to the grantees in addition to the compensation paid for the improvement in the land.
There will be no order as to costs in this appeal.
Y.P. Order of the High Court modified.
(1) I.L.R. (2) [1955] section C. R .

summary/full:
The, Government of Mysore, granted a plot of land to the respondents with the added condition that "in the event of the Government requiring the land for any reason whatsoever.
the grantee shall surrender the land to the Government without claiming any compensation".
The Government acquired the land by adopting the procedure prescribed by the Land Acquisition Act but no compensation was awarded to the grantees for the land.
The High Court, in appeal, held that since the Government had failed to exercise the right which it had under the terms of the grant and had acted under the Land Acquisition Act, the grantees were entitled to compensation as provided under the Act.
In appeal, this Court, HELD : After obtaining possession of the land in pursuance of statutory authority under section 17 of the Land Acquisition Act, the Government could not seek to exercise the option conferred by the terms of the grant.
The grantees were entitled to Compensation for the land of which the ownership was vested in them.
But in assessing compensation payable to the grantees, existence of the condition which severely restricted their right could not be ignored.
[B C] The Act is silent as to the acquisition of partial interests in land but it cannot be inferred therefrom that interest in land restricted because of the existence of rights of the State in the land cannot be acquired.
When land is notified for acquisition for a public purpose and the State has no interest therein, market value of the land must be determined and apportioned among the persons entitled to the land.
Where the interest of the owner is.
clogged by the right of the State, the compensation payable is only the market value of that interest, subject to the clog.
[895 B, C] The Collector of Bombay vs Nusserwanji Rattanji Mistri & Ors. ; , followed.
Attorney General vs De Kayser 's Royal Hotel Ltd., ; , referred to.
Government of Bombay vs Esufali Salebhai, I.L.R. 34 Bom.
618, approved.
State of Madras vs A.Y.S. Parisutha Nadar, [1961] M.L.J. 285, disapproved.


judgement:
ivil Appeals Nos.
1148, 1656 and 2341 of 1966.
Appeals by special leave from the judgment and decree dated July 27, 1965 of the Punjab High Court in Letters Patent Appeals Nos.
13 to 15 of 1965.
Prem Chand Jain and Janardan Sharma, for the appellants (in all the appeals).
D.D. Sharma, for respondents Nos. 1 (iv to xiii) in all the appeals).
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought by special leave on behalf of the defendants against the judgment of the Punjab High Court dated 27th July, 1965 in Letters Patent Appeals Nos. 13 and 14 of 1965.
Dhara Singh, respondent No. 2, executed three sale deeds with regard to lands at village Bhadani, 'Tehsil Jhajjar, Rohtak in favour of the appellants in all the three appeals.
The first sale was of land measuring 27 kanals and 4 marlas dated September 20, 1960, the second was of land measuring 36 kanals and 19 marlas dated November 23, 1960 and the third was of land measuring 33 kanals and 18 marlas dated March 6, 1961.
Neki deceased, who was the father 's brother of Dhara Singh, vendor, instituted three suits in the court of Subordinate Judge at Jhajjar for possession of the aforesaid lands covered by the three sales on the ground that he had a superior right of pre emption on the basis of his relationship with the vendor as against the appellants under section 15(1)(a) of the Punjab Pre emption Act, 1913 (Punjab Act 1 of 1913).
These suits were contested by the appellants.
After hearing the contentions of the rival parties, the Subordinate Judge granted decrees in ail the three suits in favour of the plaintiffs.
In suit No. 311 of 1961 the decree stipulated that the plaintiff should deposit the amount of Rs. 3,500/ in court on or before 15 1 1963.
In suit Nos. 368 and 369 of 1961 the condition was that the plaintiffs should make the deposit of Rs. 5,000/ and Rs. 7,000/ respectively in court on or before 15 1 1963.
The appellants took the matter in appeal before the Senior Subordinate Judge who by his judgment dated 30th January, 1963 dismissed the appeals against the decrees in 835 suits Nos. 313 and 369 of 1961 and modified the decree in suit No. 368 of 1961 to the extent that the plaintiff was called upon to deposit a further sum of Rs. 2,000/ on or before 1 3 1963.
The appellants preferred regular Second Appeals Nos. 280, 281 and 282 of 1963 in the High Court against the decrees and judgment of the Senior Subordinate Judge, Rohtak.
The plaintiffs also preferred in the High Court appeal No. 830 of 1963 against the increase made in the price of the land by the Senior Subordinate Judge Rohtak in the appeal arising out, of decree in suit No. 368 of 1961.
While the appeals were pending in the High Court, Neki plaintiff died on April 7, 1963.
After his death, the appellants vendors in the three regular appeals moved applications under 0.22, r. I of the Civil Procedure Code to bring on record of the appeals the legal representatives of Neki, deceased plaintiff, namely, Dhara Singh, Ramkishan and Balbir Singh.
All the four appeals were heard and dismissed by Mr. Justice Khanna by his judgment dated 17th September, 1964.
The appellants preferred appeals under the Letters Patent which were dismissed by a Division Bench of the Punjab High Court by a common judgment dated 27th July, 1965.
The claim of Neki for pre emption was based on sections 14 and 15 (1) (a) of the Punjab Pre emption Act 1913 (Punjab Act 1 of 1913).
Section 14 states : "No person other than a person who was at the date of sale a member of an agricultural tribe in the the same group of agricultural tribes as the vendor shall have a right of pre emption in respect of agricultural land sold by a member of an agricultural tribe".
"Section 15 (I) (a) reads as follows "The right of pre emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner: FIRST, in the son or daughter or son 's son or daughter 's son of the vendor; SECONDLY, in the brother or brother 's son of the vendor; THIRDLY, in the father 's brother or father 's brother 's son of the vendor; FOURTHLY, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof .
" The Punjab Pre emption Act, 1913 was amended by Punjab Act 10 of 1960 and section 6 of the amending Act inserted a new section 31 in the Principal which states as follows: 836 "No court shall pass a decree in a suit for pre emption whether instituted before or after the commencement of the Punjab Pre emption (Amendment) Act, 1960, which is inconsistent with the provisions of the said Act".
It is necessary also to refer at this stage to the provisions of 0.22, r.1 and 0.22, r. 1 1 which are to the following effect : "0.22, r. 1 : The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives".
"0.22, r.
I I : In the application of this Order to appeals, so far as may be, the word 'plaintiff ' shall be held to include an appellant the word 'defendant ' a respondent, and the word 'suit an appeal".
In support of these appeals, learned counsel put forward the argument that the right of pre emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre emption.
The argument was that the statutory right of pre emption under the Punjab Act was not a heritable right and no decree for pre emption should have been passed by the lower court in favour of ',he legal representatives as representing the estate of Neki.
We are unable to accept the argument put forward by the appellants.
It is not correct to say that the right of pre emption is a personal right on the part of the pre emptor to get the re transfer of the property from the vendee who has already become the owner of the same.
It is true that the right of pre emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stran (Ter into the land.
The correct legal position is that the statutory law of pre emption imposes a limitation or disability upon the ownership of a property to the extent 'that it restricts the owner 's right of sale and compels him to sell the property to the person entitled to pre emption under the statute.
In other words, the statutory right of pre emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre empt.
In the present case, Neki obtained decrees for pre emption in all the three suits against the appellants and these decrees were confirmed by the first appellate Court.
While the second appeals were pending in the High Court, Neki died and the question is whether under the provisions of 0.22, r. I and 0.22, r. I I of the Code of Civil Procedure, the right to sue survived after the death of Neki.
In this context, it is necessary to consider the provisions of section 306 of the Indian 837 Succession Act XXIX of 1925.
This section expresses a qualification of the maxim actio personalis mortiur cum persona to the extent that the section indicates that, amongst causes of action which survive, are included some actions of a personal nature, that is to say personal actions other than those expressly excluded by the section itself.
It is true that the right of pre emption under section 15(1)(a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre emptor depends upon the nature of his relationship with the vendor.
But under section 14 of the Act, the pre emptor must be a member of an agricultural tribe in the same group of agricultural tribes as the vendor and the land of which pre emption is sought must be in respect of agricultural land sold to a member of the agricultural tribe.
We are of opinion that if an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre emption.
The view which we have taken is supported by the language of section 306 of the Indian Succession Act and it follows therefore that the claim of Neki for pre emption did not abate upon his death and that the legal representatives of Neki were properly brought on record of the second appeals under the provisions of 0.22, r. 1 read with 0.22, r. 10 of the Code of Civil Procedure.
The view that we have expressed is borne out by a decision of the Punjab High Court in Faqir Ali Shah vs Ram Kishan & Ors.(1).
The question that arose for determination in that case was whether the right to sue for pre emption under s.12 of the Punjab Laws Act upon a cause of action which accrued to a person in his life time passed at his death to his successor who inherited the property through which the right had accrued.
The view of the Full Bench as regards the transfer by inheritance was that the general principle applied and that the right of pre emption passed with the land and the learned Judges distinguished the transfer by inheritance from the transfer of property by some voluntary act of the par ties.
At p. 641 of the Report, Clark, C.J. observed : "While, therefore, there is good reason why volun tary transfers should not pass a right of pre emption as regards properties previously sold, those reasons do not apply to transfers by inheritance.
As regards transfers by inheritance, the general principle should apply that the right of pre emption passes with the land.
Mr. Grey laid great stress on sections 13 and 16 of the, Punjab Laws Act urging that the father was the person on whom the notice had to be served, and that it was he who had the right to sue and that the right was thus a personal one that could not (1) 133 P. R. 1907.
838 be inherited by the son.
The right was no doubt a personal one in the father based on his land, but I can see no reason why such right cannot be inherited by the son.
If the father had waived or otherwise disposed of his right this would no doubt be binding on the son, as the father was representing the whole estate.
Where, however, the father has done nothing of the kind, but has simply taken no steps in the matters, there seems to me no reason why the son should not step into the shoes of his father and take the same action as the father could have done.
The son inherits the other causes of 'action belonging to his father and why not this one ? Nor do I see why the son cannot come in under Section 16, simply alleging that no notice as required by section 13 was served on his father".
A similar view was expressed by the Full Bench of the Allahabad High Court in Wajid Ali & Ors.
vs Shaban & Ors.
It was held that where a right of pre emption exists by custom as recorded in the village wajib ul arz, the right having once accrued did not of necessity lapse by the death of the pre emptor before making a claim, but descended along with the property in virtue of which it subsisted to the heir of the pre emptor.
It is necessary to emphasize that we are dealing in this; case with the statutory right of pre emption under Punjab Act 1 of 1913 and its subsequent amendment and not with the right of preemption under the Mohammedan Law.
In regard to the latter right it has been held that according to the Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre emption has not obtained his decree for pre emption in his life time the right to sue does not survive to his heirs. (See Muhammad Husain vs Niamet un nissa and Ors.) (2).
It is not necessary for us to express any opinion on this point in the present case.
On behalf of the respondent it was also pointed out that after the passing of the decree by the, trial court, Neki complied with the terms of the decree and made payments within the time given.
It was said that under the terms of section 14 and section 1 5 (1 ) (a) the title to the land in the pre emption suits must be deemed to have accrued to Neki from the date of such payment.
It was argued that before his death, Neki became the owner of the lands which were the subject matter of pre emption and the legal representatives of Neki were substituted in his place as representing the estate of Neki.
In support of this proposition counsel relied upon the language of 0.20 r. 14(1) which states : "Where the court decrees a claim to pre emption in respect of a particular sale of property and the pur (2) 1.
L. R. 20 All.
88. 839 chase money has not been paid into Court, the decree shall (a) specify a day on or before which the purchasemoney shall be so paid, and (b) direct that on payment into Court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a) the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
" In this connection counsel referred to the decision of the Punjab High Court in Ganga Ram & Ors.
vs Shiv Lal(1) where it was held that the title to the preempted property passes to the pre emptor under a pre emption decree on deposit of the purchase money in terms of the decree and was deemed to.
pass to him from the date of the deposit.
So far suit No. 368 is concerned, there is a dispute as to whether or not Neki deposited the amount under the decree within the time prescribed but as regards suits Nos. 311 and 369 of 1961, it is admitted that the deceased Neki made the payment of the amount under the two decrees within the time prescribed.
So far as these two decrees are concerned, the deposit of the purchase money is an additional reason for holding that the legal representatives of Neki were properly substituted in his place in the proceedings of the second appeals.
It was finally urged on behalf of the appellants that, in any vent, section 31 of the Punjab Act 1 of 1913 as amended by Punjab Act 10 of 1960 stood as a bar to the granting of a decree in favour of the substituted respondents.
The argument was stressed that section 31 of the Punjab Act 1 of 1913 was in plain words retrospective in character and Dhara Singh and his two sons as legal representatives of Neki could not be granted a decree for pre emption.
In our opinion, this argument is wholly irrelevant.
The reason is that the Amending Act came into force on February 4, 1960 and Neki instituted the present suits for pre emption long after this date.
Even the three sales of land were effected after the promulgation of the Amending Act.
Reliance was placed on behalf of the appellants on the decision of this Court in Ram Sarup vs Munshi & Ors.(1) but the material facts of that case are quite different.
It appears that the claim of pre emption in that case was based upon section 15(c) 'thirdly ' of the Punjab Pre emption Act 1913 which states: (1) 66 P. L. R. (1964), 251.
(2) 840 "Subject to the provisions of section 14 the right of preemption in respect of agricultural land and village immoveable property shall vest (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold; (b) where the sale is of a share out of joint land or property, and is not made by all the co sharers jointly, firstly, in the lineal descendants of the vendor in order of succession; secondly, in the co sharers, if any, who are agnates, in order of succession; (c) If no person having, a right of pre emption under clause (a) of clause (b) seeks to exercise it: thirdly, in the owners of he estate;. . " By section 4 of the amending Act (Act 10 of 1960) section 1 5 of the parent Act was repeated and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons 'owning land in the estate ' as the original section 15(c) 'thirdly ' had done.
Retrospective effect was given to the provision by the insertion of a new section 31 in the.
parent Act.
The question for consideration was that whether by reason of this amendment in the law the respondent was entitled to the benefit of the decree which he obtained under the previously existing enactment.
It was the case of the plaintiff that he owned land in the 'estate ' whereas the vendee did not own land there.
The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an 'estate ', sought to prove that he too owned land in the same village and 'estate ' but in this he failed.
As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial court on Novber 8, 1951, and an appeal and second appeal therefrom were also dismissed.
The question was whether the respondent was entitled to a decree in view of section 31 of the Punjab Pre emption Act 1913 as amended by Punjab Act 10 of 1960 which came into force on February 4, 1960.
It was held by this Court that in view of the plain language of section 3 1, the substantive law enacted by the legislature in the amended section 15 of the Pre emption 841 Act should be applied and the decree for pre emption in favour of the first respondent should be set aside.
It is manifest that the material facts of the present case are different and the ratio of the decision of this Court in Ram Sarup vs Munshi & Ors.
(1) has no application to the present case.
In Ram Sarup 's case(1) the right of the plaintiff to pre empt was extinguished retrospectively; in the present case Neki 's right to sue has not been extinguished Neki had the right of pre emption under the Amended Act at the time he, instituted the suit and Neki 's right was not extinguished on his death but passed to his legal representatives.
For the reasons expressed above, we hold that these appeals have no merit and must be dismissed with costs.
There will be one set of hearing fee.
Y.P. (1) ; Appeals dismissed.

summary/full:
By section 4 of the Amending Act (Punj.
Act 10 of 1960) section 15 of the Punjab Pre emption Act, 1913 was repealed and in its place was substituted a new provision which omitted to confer a right of pre emption in the case of persons 'owning land in the estate ' as the original section 15(c) 'thirdly ' had done.
Retrospective effect was given to the provisions by the insertion of new section 31 in the parent Act.
In respect of sales effected after the promulgation of the Amending Act, one N filed suits and obtained decrees for pre emption in all suits against the appellants under section 15(1)(a) of the Punjab Pre emption Act.
These decrees were confirmed by the first appellate court.
While the second appeals were pending in the High Court, N died, and his legal representatives were brought on record.
The High Court dismissed the appeals.
In appeals to this Court, it was contended that (i) the statutory right of pre emption under the Punjab Preemption Act, was not a 'heritable right ' and no decree for pre emption should have been passed by the lower court in favour of the legal representatives; and (ii) section 31 of the Act as amended retrospectively by Punjab Act 10 of 1960, stood as a bar to the granting of a decree in favour of substituted legal representatives.
HELD : The appeals must be dismissed.
(i) The statutory right of pre emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the persons entitled to pre empt.
The right of pre emption under section 15(1) (a) of the Punjab Act of 1913 is a personal right in the sense that the claim of the pre emptor depends upon the nature of his relationship with the vendor.
But under section 14 of the Act, the pre emptor must be a member of an agricultural tribe in the same group of agricultural tribes, as the vendor and the land of which preemption is sought must be in respect of agricultural land sold to a member of the agricultural tribe.
If an involuntary transfer takes place by inheritance the successor to the land takes the whole bundle of the rights which go with the land including the right of pre emption.
This view is sup ported by the language of section 306 of the Indian Succession Act and therefore, the claim of N for pre emption did not abate upon his death and his legal representatives were properly brought on 'record of the second appeals under the provisions of 0. 22, r. 1 read with 0. 22, r. 10 of the Code of Civil Procedure.
(836 G; 837 B D] Faqir Ali Shah vs Rani Kishan & Ors.
133 P.R. 1907 and Wajid Ali & Ors.
vs Shaban & Ors.
1.L.R. 31 All 623, approved.
Muhammad Husain vs Niamat un nissa & Ors.
I.L.R. 20 All, 88, referred to. 834 (ii) The Amending Act came into.
force long before N instituted the present suits.
Even the sales of land were effected after the promulgation of the Amending Act.
In Ram Sarup 's case, the right of the plaintiff to pre empt was extinguished retrospectively; in the present case N 's right to sue has not been extinguished.
N had the right of pre emption under the Amended Act at the time he instituted the suit and N 's right was not extinguished on his death but passed to his legal representatives.
[839 G] Ram Sarup vs Munshi & Ors.
[196.3] 3 S.C.R. 858, distinguished.